RESTATED
CERTIFICATE OF INCORPORATION
OF
OLD REPUBLIC INTERNATIONAL CORPORATION
The Board of Directors, in a procedure authorized by Section 245 of the
General Corporation Law of Delaware, approved and adopted at a meeting held on
December 2, 1998 the following Restated Certificate of Incorporation. This
document only restates and integrates and does not further amend the provisions
of the corporation's Certificate of Incorporation duly filed with the Secretary
of State of Delaware on March 6, 1969 as heretofore amended or supplemented, and
there is no discrepancy between those provisions and the provisions of this
restated certificate.
FIRST: The name of the corporation is Old Republic International Corporation.
SECOND: The address of its registered office in the State of Delaware is 1013
Centre Road, in the City of Wilmington 19805, County of New Castle. The
name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted or promoted are:
To acquire, own and dispose of the whole or any part of the capital
stock, securities, assets, or obligations of other corporations; and
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is Six Hundred Seventy-Five
Million (675,000,000) shares, divided into three classes as follows:
Seventy Five Million (75,000,000) shares of Preferred Stock of the par
value of one cent ($.01) per share (Preferred Stock).
Five Hundred Million (500,000,000) shares of Common Stock of the par
value of $1.00 per share (Common Stock).
One Hundred Million (100,000,000) shares of Class B Common Stock of the
par value of $1.00 per share (Class B Common Stock).
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The designations, powers, preferences and rights, and the
qualifications, limitations or restrictions of the above classes of stock are as
follows:
DIVISION I
Preferred Stock
1. The Board of Directors is expressly authorized at any time, and from
time to time, to issue shares of Preferred Stock in one or more series, and for
such consideration as the Board may determine, with such voting powers, full or
limited but not to exceed one vote per share, or without voting powers, and with
such designations, preferences and relative, participating optional or other
special rights, and qualifications, limitation or restrictions thereof, as shall
be stated in the resolution or resolutions providing for the issue thereof, and
as are not stated in this Certificate of Incorporation, or any amendment
thereto. All shares of any one series shall be of equal rank and identical in
all respects.
2. No dividend shall be paid or declared on any particular series of
Preferred Stock unless dividends shall be paid or declared pro rata on all
shares of Preferred Stock at the time outstanding of each other series which
ranks equally as to dividends with such particular series.
3. Unless and except to the extent otherwise required by law or
provided in the resolution or resolutions of the Board of Directors creating any
series of Preferred Stock pursuant to this Division I, the holders of the
Preferred Stock shall have no voting power with respect to any matter
whatsoever. In no event shall the Preferred Stock be entitled to more than one
vote in respect of each share of stock. Subject to the protective conditions or
restrictions of any outstanding series of Preferred Stock, any amendment to this
Certificate of Incorporation which shall increase or decrease the authorized
capital stock of any class or classes may be adopted by the affirmative vote of
the holders of a majority of the outstanding shares of the voting stock of the
Corporation.
4. Shares of Preferred Stock redeemed, converted, exchanged, purchased,
retired or surrendered to the Corporation, or which have been issued and
reacquired in any manner, shall, upon compliance with any applicable provisions
of The General Corporation Law of the State of Delaware, have the status of
authorized and unissued shares of Preferred Stock and may be reissued by the
Board of Directors as part of the series of which they were originally a part or
may be reclassified into and reissued as part of a new series or as a part of
any other series, all subject to the protective conditions or restrictions of
any outstanding series of Preferred Stock.
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DIVISION II
Common Stock and Class B Common Stock
1. Dividends. Subject to the preferential dividend rights, if any,
applicable to shares of the Preferred Stock and subject to applicable
requirements, if any, with respect to the setting aside of sums for purchase,
retirement or sinking funds for the Preferred Stock, the holders of the Common
Stock and the Class B Common Stock shall be entitled to receive to the extent
permitted by law, such dividends as may be declared from time to time by the
Board of Directors; provided that whenever a cash dividend is paid to the
holders of Class B Common Stock, the Corporation shall also pay to the holders
of the Common Stock a cash dividend per share at least equal to the cash
dividend per share at least equal to the cash dividend per share paid to the
holders of the Class B Common Stock and further provided that the Corporation
may pay cash dividends to the holders of the Common Stock in excess of cash
dividends paid, or without paying cash dividends, to holders of the Class B
Common Stock.
2. Liquidation. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up of the
Corporation, after distribution in full of the preferential amounts, if any, to
be distributed to the holders of shares of the Preferred Stock, holders of the
Common Stock and the Class B Common Stock shall be entitled to receive all the
remaining assets of the Corporation of whatever kind available for distribution
to stockholders ratably in proportion to the number of shares of Common Stock
and the Class B Common Stock held by them, respectively.
3. Voting Rights. Except as may be otherwise required by law or this
Certificate of Incorporation, each holder of the Common Stock shall have one
vote in respect of each share of Common Stock held by him of record on the books
of the Corporation on all matters voted upon by the stockholders and each holder
of the Class B Common Stock shall have one-tenth (1/10) of one vote in respect
of each share of Class B Common Stock held by him of record on the books of the
Corporation on all matters voted upon by the stockholders; provided that the
holders of the Common Stock and the Class B Common Stock shall vote together as
a single class.
4. Definition. Notwithstanding the provisions of the Designations,
Preferences and Rights of Series A Junior Participating Preferred Stock, and the
Designations, Preferences and Rights of Series G-2 Convertible Preferred Stock,
for the purposes of the Corporation's Restated Certificate of Incorporation, as
amended, the term "Common Stock" shall mean Common Stock as defined in the first
paragraph of this Article FOURTH and shall not include the Class B Common Stock
of the Corporation, provided, however, that for the purposes of the section
titled "Voting", the term "Common Stock" shall mean both the Common Stock as
defined in the first paragraph of this Article FOURTH and the Class B Common
Stock of the Corporation."
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DIVISION III
Elimination of Preemptive Rights
No holder of stock of any class of the Corporation shall be entitled as
a matter of right to purchase or subscribe for any part of any unissued stock of
any class, or of any additional stock of any class of capital stock of the
Corporation, or of any bonds, certificates of indebtedness, debentures, or other
securities convertible into stock of the Corporation, now or hereafter
authorized, but any such stock of other securities convertible into stock may be
issued and disposed of pursuant to resolution by the Board of Directors to such
persons, firms, corporations or associations and upon such terms and for such
consideration (not less than the par value or stated value thereof) as the Board
of Directors in the exercise of its discretion may determine and as may be
permitted by law without action by the stockholders.
DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
1. Designation.
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 10,000,000; 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 conversion of any outstanding
securities issued by the Corporation convertible into Series A Preferred Stock.
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, par value $1.00
per share (the "Common Stock"), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, 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
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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 Commons 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.
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3. Voting Rights.
The holders of shares of Series A Preferred Stock shall have the
following voting rights:
(a) Except as provided in paragraph (c) of this Section 3 and subject
to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the Corporation.
(b) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) (i) If, on the date used to determine stockholders of record for
any meeting of stockholders for the election of directors, a default in
preference dividends (as defined in subparagraph (v) below) on the Series A
Preferred Stock shall exist, the holders of the Series A Preferred Stock shall
have the right, voting as a class as described in subparagraph (ii) below, to
elect two directors (in addition to the directors elected by holders of Common
Stock of the Corporation). Such right may be exercised (a) at any meeting of
stockholders for the election of directors or (b) at a meeting of the holders of
shares of Voting Preferred Stock (as hereinafter defined), called for the
purpose in accordance with the By-laws of the Corporation, until all such
cumulative dividends (referred to above) shall have been paid in full or until
non-cumulative dividends have been paid regularly for at least one year.
(ii) The right of the holders of Series A Preferred Stock to elect
two directors, as described above, shall be exercised as a class concurrently
with the rights of holders of any other series of Preferred Stock upon which
voting rights to elect such directors have been conferred and are then
exercisable. The Series A Preferred Stock and any additional series of Preferred
Stock which the Corporation may issue and which may provide for the right to
vote with the foregoing series of Preferred Stock are collectively referred to
herein as "Voting Preferred Stock."
(iii) Each director elected by the holders of shares of Voting
Preferred Stock shall be referred to herein as a "Preferred Director." A
Preferred Director so elected shall continue to serve as such director for a
term of one year, except that upon any termination of the right of all such
holders to vote as a class for Preferred Directors, the term of office of such
directors shall terminate. Any Preferred Director may be removed by, and shall
not be removed except by, the vote of the holders of record of a majority of the
outstanding shares of Voting Preferred Stock then entitled to vote for the
election of directors, present (in person or by proxy) and voting together as a
single class (a) at a meeting of the stockholders, or (b) at a meeting of the
holders of shares of such Voting Preferred Stock, called for the purpose in
accordance with the By-laws of the Corporation, or (c) by written consent signed
by the holders of a majority of the then outstanding shares of Voting Preferred
Stock then entitled to vote for the election of directors, taken together as a
single class.
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(iv) So long as a default in any preference dividends on the Series
A Preferred Stock shall exist or the holders of any other series of Voting
Preferred Stock shall be entitled to elect Preferred Directors, (a) any vacancy
in the office of a Preferred Director may be filled (except as provided in the
following clause (b)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (b) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote or
written consent of the holders of a majority of the outstanding shares of Voting
Preferred Stock then entitled to vote for the election of directors, present (in
person or by proxy) and voting together as a single class, at such time as the
removal shall be effected. Each director appointed as aforesaid by the remaining
Preferred Director shall be deemed, for all purposes hereof, to be a Preferred
Director. Whenever (x) no default in preference dividends on the Series A
Preferred Stock shall exist and (y) the holders of other series of Voting
Preferred Stock shall no longer be entitled to elect such Preferred Directors,
then the number of directors constituting the Board of Directors of the
Corporation shall be reduced by two.
(v) For purposes hereof, a "default in preference dividends" on the
Series A Preferred Stock shall be deemed to have occurred whenever the amount of
cumulative and unpaid dividends on the Series A Preferred Stock shall be
equivalent to six full quarterly dividends or more (whether or not consecutive),
and, having so occurred, such default shall be deemed to exist thereafter until,
but only until, all cumulative dividends on all shares of the Series A Preferred
Stock then outstanding shall have been paid through the last Quarterly Dividend
Payment Date or until, but only until, non-cumulative dividends have been paid
regularly for at least one year.
(d) Except as set forth herein (or as otherwise required by applicable
law), holders of Series A Preferred Stock shall have no general or special
voting rights and their consent shall not be required for taking any corporate
action.
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 in 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;
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(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.
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 cancelled
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 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.
6. Liquidation, Dissolution or Winding Up.
(a) Subject to the prior and superior rights of holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series A Preferred Stock with respect to rights upon liquidation, dissolution or
winding up (voluntary or otherwise), no distribution shall be made 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
(the "Series Liquidation Preference"). Following the payment of the full amount
of the Series A Liquidation Preference, no additional distributions shall be
made to the holders of shares of Series A Preferred Stock unless, prior thereto,
the holders of shares of
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Common Stock shall have received an amount per share (the "Capital Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series A Liquidation Preference
and the Capital Adjustment in respect of all outstanding shares of Series A
Preferred Stock and Common Stock, respectively, holders of Series A Preferred
Stock and holders of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Preferred Stock and Common Stock, on a per
share basis, respectively.
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of Series A Preferred Stock
and the holders of such parity shares in proportion in their respective
liquidation preferences. In the event, however, that there are not sufficient
assets available to permit payment in full of the Capital Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
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 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.
8. No Redemption.
The shares of Series A Preferred Stock shall not be redeemable.
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9. Ranking.
The Series A Preferred Stock shall rank, with respect to payment of
dividends and the distribution of assets, junior to all series of any other
class of the Corporation's Preferred Stock.
10. Amendment.
The 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.
DESIGNATIONS, PREFERENCES AND RIGHTS OF
SERIES G-2 CONVERTIBLE
PREFERRED STOCK
1. Designation.
1,000,000 shares of Preferred Stock of the Corporation, no par value,
are hereby constituted as a series of Preferred Stock designated as "Series G-2
Convertible Preferred Stock" (hereinafter called "Series G-2 Preferred Stock").
2. Transferability.
The shares of Series G-2 Preferred Stock shall not be transferable by
the holder thereof otherwise than by will or under the laws of descent and
distribution. In the event that any shares of Series G-2 Preferred Stock are
transferred by will or under the laws of descent and distribution and such
shares of Series G-2 Preferred Stock are not thereafter converted into Common
Stock pursuant to the provisions of paragraphs 5 and 6, the Corporation shall
have the right to redeem such shares of Series G-2 Preferred Stock so
transferred pursuant to the following provisions:
(a) At any time after six months from the date of death of the holder
which gave rise to such transfer, the Corporation shall have the right, at its
sole option and election, to redeem all of such shares of Series G-2 Preferred
Stock so transferred by will or under the laws of descent and distribution at a
redemption price per share equal to 95% of the audited book value per share of
the Common Stock as of the last day of the latest full fiscal year of the
Corporation, plus an amount equal to all accrued and unpaid dividends and
distributions thereon (the sum being hereinafter referred to as the "Redemption
Price"), whether or not declared, to the date fixed by the Board for redemption
(the "Redemption Date").
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(b) The Corporation shall not redeem pursuant to this paragraph 2 any
of the Series G-2 Preferred Stock at any time outstanding until all dividends
accrued and in arrears upon all Series G-2 Preferred Stock then outstanding
shall have been paid for all past dividend periods, and until full dividends for
the then current dividend period on all Series G-2 Preferred Stock then
outstanding, other than the shares to be redeemed, shall have been paid or
declared and the full amount thereof set apart for payment.
(c) Notice of any redemption of shares of Series G-2 Preferred Stock
pursuant to this paragraph 2 shall be mailed at least 30, but not more than 60,
days prior to the redemption date to each holder of shares of Series G-2
Preferred Stock to be redeemed, at such holder's address as it appears on the
transfer agent's books. Any notice which is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the stockholder
receives such notice; and failure to give such notice by mail, or any defect in
such notice, to the holders of any shares designated for redemption shall not
affect the validity of the proceedings for the redemption of any other shares of
Series G-2 Preferred Stock. On or after the date fixed for redemption as stated
in such notice, each holder of the shares called for redemption shall surrender
the certificate or certificates evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be entitled to receive
payment of the Redemption Price.
(d) Shares of the Series G-2 Preferred Stock shall be deemed to have
been redeemed immediately prior to the close of business on the Redemption Date,
the right to receive dividends and distributions shall cease to accrue from and
after the Redemption Date, and the rights of the holder thereof, except for the
right to receive the Redemption Price in accordance herewith, shall cease and
terminate on the Redemption Date. As promptly as practicable after surrender of
such shares as aforesaid, the Corporation shall pay to the holder the Redemption
Price for each share of Series G-2 Preferred Stock surrendered for redemption.
3. Voting Rights.
In addition to any special voting rights provided to the holders of the
Series G-2 Preferred Stock as or part of a separate series or class pursuant to
paragraph 8, any provision of the Certificate of Incorporation of the
Corporation and any other voting rights provided by law, each holder of Series
G-2 Preferred Stock shall be entitled to one vote in respect of each share of
stock held by him of record on the books of the Corporation on all matters voted
upon by the stockholders, such votes to be counted together with those for any
other shares of capital stock having the right to vote on all such matters and
not separately as a class or group.
4. Dividends.
(a) The holders of shares of Series G-2 Preferred Stock shall be
entitled to receive cumulative cash dividends, when and as declared by the Board
of Directors out of funds legally available therefor, at an annual rate, based
upon $21.79 per share, which amount shall be
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proportionately adjusted in the event of any stock dividend or distribution in
shares of Series G-2 Preferred Stock, any subdivision, combination or
reclassification of the outstanding shares of Series G-2 Preferred Stock, or any
similar action, equal to the prime rate to commercial borrowers posted by The
Northern Trust Company of Chicago on the January 1 or July 1 immediately
preceding the next dividend payment date and no more, before any dividend or
distribution in cash or other property (other than dividends payable in stock
ranking junior to the Series G-2 Preferred Stock as to dividends and upon
liquidation) on any class or series of stock of the Corporation ranking junior
to the Series G-2 Preferred Stock as to dividends or on liquidation shall be
declared or paid or set apart for payment.
(b) Dividends on the Series G-2 Preferred Stock shall be payable
semi-annually, when and as declared by the Board of Directors, on June 30 and
December 31 of each year, commencing the first June 30 or December 31 after the
date of the initial issuance of shares of the Series G-2 Preferred Stock, except
that if such date is a Saturday, Sunday or legal holiday then such dividends
shall be payable on the first immediately succeeding calendar day which is not a
Saturday, Sunday, or legal holiday, to holders of record on the respective
record dates not exceeding sixty days preceding such dividend payments dates as
may be determined by the Board of Directors in advance of the payment of each
particular dividend.
(c) Dividends on the Series G-2 Preferred Stock shall be cumulative and
accrue from and after the date of original issuance thereof, whether or not
declared by the Board of Directors. Accruals or dividends shall not bear
interest.
(d) No dividend may be declared on any other class or series of stock
ranking junior or on a parity with the Series G-2 Preferred Stock as to
dividends in respect of any dividend period unless there shall also be or have
been declared on the Series G-2 Preferred Stock like dividends for all
semi-annual periods coinciding with or ending before such semi-annual period,
ratably in proportion to the respective annual dividend rates fixed therefor.
5. Liquidation Rights.
(a) In the event of any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of outstanding shares
of the Series G-2 Preferred Stock shall be entitled to receive, before any
payment or distribution of assets of the Corporation or proceeds thereof
(whether capital or surplus) shall be made to or set apart for the holders of
any class of common stock of the Corporation or any other class or series of
stock ranking junior to the Series G-2 Preferred Stock upon liquidation, cash,
per share, in an amount equal to 95% of the book value per share of the Common
Stock on the date of liquidation plus a sum equal to all dividends on such
shares accrued and unpaid thereon to the date of final distribution, 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 Series G-2 Preferred Stock or
any other class of Preferred Stock ranking on a parity with the Series G-2
Preferred Stock as to payments upon liquidation, dissolution or winding up shall
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be insufficient to pay in full the preferential amount aforesaid, then such
assets, or the proceeds thereof, shall be distributed among such holders ratably
in accordance with the respective amounts which would be payable on such shares
if all amounts payable thereon were paid in full. For the purposes of this
paragraph 4(a), the voluntary sale, lease, 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 to, or a merger or consolidation of
the Corporation with one or more corporations in which the Corporation is the
corporation surviving such consolidation of merger shall not be deemed to be a
liquidation dissolution or winding up, voluntary or involuntary.
(b) If there is a merger of the Corporation into or the consolidation
of the Corporation with another corporation in which the Corporation is not the
survivor, the holders of Series G-2 Preferred Stock shall retain the same rights
in the surviving corporation as outlined herein.
6. Conversion at Option of the Holder.
Each share of Series G-2 Preferred Stock (other than those shares which
have been surrendered for redemption pursuant to paragraph 2) may be converted
at any time after six months from the date of issuance of such share of Series
G-2 Preferred Stock, at the option of the holder thereof, into shares of Common
Stock of the Corporation, on the terms and conditions set forth in this
paragraph 5.
(a) Each share of Series G-2 Preferred Stock shall be convertible at
the option of the holder thereof, in the manner hereinafter set forth, into .95
fully paid and nonassessable shares of Common Stock of the Corporation.
(b) In order to effect the conversion of shares of the Series G-2
Preferred Stock into Common Stock in accordance with these provisions, the
holder thereof shall surrender at the Corporation's principal office or such
other office or agency as the Board of Directors of the Corporation may
designate the certificate or certificates therefor, duly endorsed to the
Corporation or in blank, accompanied by a written notice to the Corporation at
said office stating that such holder elects to convert all or a specified whole
number of such shares in accordance with the provisions of this paragraph 5 and
specifying the name or names in which the certificate or certificates for shares
of Common Stock are to be issued. No payment or adjustment shall be made upon
any conversion on account of any dividends accrued on the shares of the Series
G-2 Preferred Stock surrendered for conversion or on account of any dividends on
the Common Stock issued upon such conversion. Shares of the Series G-2 Preferred
Stock shall be deemed to have been converted immediately prior to the close of
business on the date (the "Conversion Date") of receipt by the Corporation of
such notice and the surrender of the certificate or certificates representing
the shares of Series G-2 Preferred Stock to be converted (together with any
required instruments or transfer), and the rights of the holder thereof, except
for the right to receive Common Stock of the Corporation in accordance herewith,
shall cease on the Conversion Date, and the person or persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Stock on the
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Conversion Date. As promptly as practicable after the receipt of such notice and
the surrender of such shares as aforesaid, the Corporation shall issue and
deliver at said office to the person or persons entitled to receive the same (i)
a certificate or certificates for the number of validly issued, fully-paid and
nonassessable shares of Common Stock issuable upon such conversion, together
with a cash payment in lieu of any fraction of any share, as hereinafter
provided, and (ii) if less than the full number of shares of Series G-2
Preferred Stock evidenced by the surrendered certificate or certificates are
being converted, a new certificate or certificates, of like tenor, for the
number of shares evidenced by such surrendered certificate or certificates less
the number of shares converted.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series G-2 Preferred Stock but, in lieu of any
fraction of a share of Common Stock which would otherwise be issuable in respect
of the aggregate number of shares of the Series G-2 Preferred Stock surrendered
for conversion at one time by the same holder, the Corporation shall pay in cash
as an adjustment of such fraction an amount equal to the same fraction of the
Market Price (as defined herein) of the Common Stock, on the Conversion Date,
or, if such date is not a Trading Day (as defined herein), on the next preceding
date which was a Trading Day.
(d) The Corporation shall at all times reserve and keep available out
of its authorized but unissued shares the full number of shares of Common Stock
into which all shares of the Series G-2 Preferred Stock from time to time
outstanding are convertible.
(e) The Corporation will pay any and all issue and other taxes that may
be payable in respect of any issue or delivery of shares on conversion of shares
of the Series G-2 Preferred Stock pursuant hereto. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in such issue and delivery of shares in a name other than that
in which the shares so converted were registered, and no such issue or delivery
shall be made unless and until the person requesting such issue 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.
(f) Shares of Series G-2 Preferred Stock may not be converted after the
close of business on the third business day preceding the date fixed for
redemption or conversion by the Corporation of such shares pursuant to
paragraphs 2 and 6.
7. Redemption or Conversion at Option of the Corporation.
The Corporation shall have the right either to redeem or to convert
shares of Series G-2 Preferred Stock pursuant to the following provisions:
(a) Each share of Series G-2 Preferred Stock, at any time after five
years following the date of issuance of such share, shall be redeemable by the
Corporation, at its sole option and discretion, at a redemption price of $21.79
per share, plus an amount equal to all accrued and unpaid dividends and
distributions thereon (hereinafter the "Redemption Price"), whether or not
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declared, to the date fixed by the Board of Directors for redemption
(hereinafter the "Redemption Date"), or convertible by the Corporation, at its
sole option and discretion, into .95 fully paid and nonassessable share of
Common Stock of the Corporation.
(b) If less than all of the shares of Series G-2 Preferred Stock at the
time outstanding are to be redeemed or converted, the shares so to be redeemed
or converted shall be selected by lot, pro rata (as nearly as may be) or in such
other manner as the Board of Directors may determine in its sole discretion to
be fair and proper, except that in any redemption or conversion of fewer than
all of the outstanding shares of Series G-2 Preferred Stock, the Corporation may
redeem or convert all shares held by holders of less than 100 shares of Series
G-2 Preferred Stock. Notwithstanding the foregoing provisions, the Corporation
shall not redeem or convert less than all of the Series G-2 Preferred Stock at
any time outstanding until all dividends accrued and in arrears upon all Series
G-2 Preferred Stock then outstanding shall have been paid for all past dividend
periods, and until full dividends for the then current dividend period on all
Series G-2 Preferred Stock then outstanding, other than the shares to be
redeemed or converted, shall have been paid or declared and the full amount
thereof set apart for payment.
(c) Notice of any redemption or conversion of shares of Series G-2
Preferred Stock pursuant to this paragraph 6 shall be mailed at least 30, but
not more than 60, days prior to the Redemption Date or the date fixed by the
Board for conversion (the "Corporation Conversion Date") to each holder of
shares of Series G-2 Preferred Stock to be redeemed or converted, at such
holder's address as it appears on the books of the Corporation. In order to
facilitate the redemption or conversion of shares of Series G-2 Preferred Stock,
the Board of Directors may fix a record date for the determination of holders of
shares of Series G-2 Preferred Stock to be redeemed or converted not more than
60 days prior to the date fixed for such redemption or conversion.
(d) Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the stockholder receives such
notice; and failure to give such notice by mail, or any defect in such notice,
to the holders of any shares designated for redemption or conversion shall not
affect the validity of the proceedings for the redemption or conversion of any
other shares of Series G-2 Preferred Stock. On or after the Redemption or
Corporate Conversion Date as stated in such notice, each holder of the shares
called for redemption or conversion shall surrender the certificate or
certificates evidencing such shares to the Corporation at the place designated
in such notice and shall thereupon be entitled to receive either the redemption
price, in the case of a redemption, or a certificate or certificates for the
number of validly issued, fully-paid and nonassessable shares of Common Stock
issuable in the case of a conversion, together with a cash payment in lieu of
any fraction of any share, as hereinafter provided. If less than all the shares
represented by any such surrendered certificate are redeemed or converted, a new
certificate shall be issued representing the unredeemed or unconverted shares.
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(e) No payment or adjustment shall be made upon any redemption or
conversion on account of any dividends accrued on the shares of the Series G-2
Preferred Stock surrendered for redemption or conversion or on account of any
dividends on the Common Stock issued upon such redemption or conversion. Shares
of the Series G-2 Preferred Stock shall be deemed to have been redeemed or
converted immediately prior to the close of business on the Redemption Date or
Corporation Conversion Date, and the rights of the holder thereof, except for
the right to receive the Redemption Price or Common Stock of the Corporation in
accordance herewith, shall cease on the Redemption Date or Corporation
Conversion Date, and the person or persons entitled to receive the Common Stock
issuable in the case of conversion shall be treated for all purposes as the
record holder or holders of such Common Stock on the Corporation Conversion
Date.
(f) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series G-2 Preferred Stock but, in lieu of any
fraction of a share of Common Stock which would otherwise be issuable in respect
of the aggregate number of shares of the Series G-2 Preferred Stock surrendered
for conversion at one time by the same holder, the Corporation shall pay in cash
as an adjustment of such fraction an amount equal to the same fraction of the
Market Price (as defined herein), of the Common Stock, on the Corporation
Conversion Date, or, if such date is not a Trading Day (as defined herein), on
the next preceding date which was a Trading Day.
(g) The Corporation shall at all times reserve and keep available out
of its authorized but unissued shares the full number of shares of Common Stock
into which all shares of the Series G-2 Preferred Stock from time to time
outstanding are convertible.
(h) The Corporation will pay any and all issue and other taxes that may
be payable in respect of any issue or delivery of shares on conversion of shares
of the Series G-2 Preferred Stock pursuant hereto. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in such issue and delivery of shares in a name other than that
in which the shares so converted were registered, and no such issue or delivery
shall be made unless and until the person requesting such issue 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.
(i) In the case of a redemption, the Corporation may, on or prior to
the Redemption Date, but not earlier than 45 days prior to the Redemption Date,
deposit with its transfer agent or other redemption agent selected by the Board
of Directors of the Corporation, as a trust fund, a sum sufficient to redeem the
shares of Series G-2 Preferred Stock called for redemption, with irrevocable
instructions and authority to such transfer agent or other redemption agent to
give or complete the notice of redemption thereof and to pay to the respective
holders of such shares of Series G-2 Preferred Stock, as evidenced by a list of
such holders certified by an officer of the Corporation, the Redemption Price
upon surrender of their respective share certificates. Such deposit shall be
deemed to constitute full payment of such shares of Series G-2 Preferred Stock
to their holders; and from and after the date of such deposit, notwithstanding
that any certificates for such shares of Series G-2 Preferred Stock shall not
have been surrendered for cancellation, the shares represented thereby shall no
longer be deemed outstanding, the rights to receive dividends
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and distributions shall cease to accrue from and after the Redemption Date, and
all rights of the holders of the shares of Series G-2 Preferred Stock called for
redemption, as stockholders of the Corporation with respect to such shares,
shall cease and terminate, except the right to receive the Redemption Price,
without interest, upon the surrender of their respective certificates, and
except the right to convert their shares into Common Stock as provided in
paragraph 5 hereof, until the close of business on the Redemption Date. In case
the holders of any shares shall not, within six years after such deposit, claim
the amount deposited for redemption thereof, such transfer agent or other
redemption agent shall, upon demand, pay over to the Corporation the balance of
such amount so deposited. Thereupon, such transfer agent or other redemption
agent shall be relieved of all responsibility to the holders thereof and the
sole right of such holders shall be as general creditors of the Corporation. To
the extent that shares of Series G-2 Preferred Stock called for redemption are
converted into Common Stock prior to the Redemption Date, the amount deposited
by the Corporation to redeem such shares shall immediately be returned to the
Corporation. Any interest accrued on any funds so deposited shall belong to the
Corporation, and shall be paid to it from time to time on demand.
8. Distribution of Reclassification of Series G-2 Preferred Stock In the
Event of Distribution or Reclassification of Common Stock or Class B
Common Stock; Adjustment of Conversion Ratio.
(a) In the event the Corporation shall at any time after the issuance
of Series G-2 Preferred Stock pay a dividend or make a distribution in shares of
Common Stock or Class B Common Stock or subdivide or reclassify its outstanding
shares of Common Stock or Class B Common Stock into a greater number of shares
of Common Stock or Class B Common Stock, respectively, then a proportionate
dividend, distribution, subdivision or reclassification of the outstanding
Series G-2 Preferred Stock shall also be effected, as of the effective date of
the applicable distribution or adjustment with respect to the Common Stock or
Class B Common Stock. In such event, the Redemption Price per share specified in
these provisions shall be reduced proportionately as to all shares of Series G-2
Preferred Stock outstanding or thereafter issued and the annual dividend per
share specified in these provisions shall be adjusted as provided in paragraph4.
(b) In the event the outstanding Common Stock or Class B Common Stock
of the Corporation is hereafter combined into a smaller number of shares, then
the rate of conversion only, specified herein, shall be adjusted
proportionately.
9. Relative Rights of Preferred Stock.
So long as any of the Series G-2 Preferred Stock is outstanding the
Corporation will not:
(i) Declare, or pay, or set apart for payment, any dividends (other
than dividends payable in stock ranking junior to the Series G-2 Preferred Stock
as to dividends and upon
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liquidation) or make any distribution in cash or other property on any other
class or series of stock of the Corporation ranking junior to the Series G-2
Preferred Stock either as to dividends or upon liquidation and will not redeem,
purchase or otherwise acquire, any shares of any such junior class or series if
at the time of making such declaration, payment, distribution, redemption,
purchase or acquisition the Corporation shall be in default with respect to any
dividend payable on, or any obligation to retire shares of, Series G-2 Preferred
Stock, provided that, notwithstanding the foregoing, the Corporation may at any
time redeem, purchase or otherwise acquire shares of stock of any such junior
class in exchange for, or out of the net cash proceeds from the sale of, other
shares of stock of any junior class or series; or
(ii) Without the affirmative vote or of the holders of two-thirds of
all the Series G-2 Preferred Stock at the time outstanding, given in person or
by proxy, by resolution adopted at an annual or special meeting called for the
purpose, at which the holders of the shares of this series shall vote separately
as a class, (A) authorize, create or issue, or increase the authorized or issued
amount, of any class or series of stock ranking prior to the Series G-2
Preferred Stock either as to dividends or upon liquidation; or (B) amend, alter
or repeal any of the provisions of the Corporation's Certificate of
Incorporation, Bylaws or Certificate of Designations, Preferences and Rights of
the Series G-2 Preferred Stock, so as to materially and adversely affect the
preferences, rights, privileges or powers of the Series G-2 Preferred Stock;
provided, however, that any increase in the authorized Preferred Stock or in the
creation and issuance of other series of Preferred Stock ranking on a parity
with the Series G-2 Preferred Stock shall not be deemed to materially and
adversely affect such preferences, rights, privileges or powers.
10 Status.
Shares of this series which have been converted into Common Stock or
which have been issued and acquired in any manner by the Corporation (excluding,
until the Corporation elects to retire them, shares which are held as treasury
shares but including shares redeemed and shares purchased and retired) shall,
upon compliance with any applicable provisions of the laws of the State of
Delaware, have the status of authorized and unissued shares of Preferred Stock
and may be reclassified and reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors or as part
of any series of Preferred Stock other than this series, all subject to the
conditions and restrictions on issuances set forth in any resolution or
resolutions adopted by the Board of Directors providing for the issue of any
series of Preferred Stock.
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11. Priority.
The Preferred Stock of the Corporation heretofore authorized by the
Board of Directors of the Corporation shall rank on a parity with, and the
Common Stock and Class B Common Stock of the Corporation shall rank junior to,
the Series G-2 Preferred Stock as to dividends and upon liquidation.
12. Certain Definitions.
(a) For the purposes of these provisions the terms "Common Stock" and
"Class B Common Stock" mean the Common Stock of the Corporation, $1.00 par
value, and the Class B Common Stock of the Corporation, $1.00 par value, as the
same exist as of the original date of issue of the Series G Preferred Stock or
as such stock may be reconstituted from time to time.
(b) As used in these provisions, the term "Market Price" on any day
shall mean the reported last sales price on such day or, in case no such sale
takes place on such day, the average of the reported closing bid and asked
prices, in each case on the New York Stock Exchange, or, if the Common Stock is
not listed or admitted to trading on such Exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or, if not listed or admitted to trading on any national securities exchange,
then the average of the closing bid and asked prices of the Common Stock in the
over-the-counter market as reported on NASDAQ or a similar reporting service;
and the term "Trading Day" shall mean a date on which the New York Stock
Exchange (or any Successor to such Exchange) is open for the transaction of
business.
FIFTH: The number of directors of the Corporation shall be fixed from time to
time by, or in the manner provided in,its by-laws and may be increased
or decreased as therein provided, but in no event shall the number of
directors of the Corporation be less than five nor more than eighteen.
The directors shall be classified with respect to the time for which
they shall severally hold office by dividing them as equally as the
total number of directors will permit into three classes, and all
directors shall hold office until their successors are elected and
qualified. The term of service of each class of directors shall be
three years or until the third annual meeting of the shareholders
following the election of the class. The terms of service of each
class of directors shall expire in successive years. At each annual
meeting of the shareholders,successors to the class of directors whose
terms then expire shall be elected to serve for the full term of three
years or until the third annual meeting of shareholders following
their election. For purposes of the annual meeting of shareholders to
be held in 1978,the current classification of directors shall continue
and only that class of directors whose term expires at that meeting
shall be elected. At each succeeding annual meeting of shareholders,
the shareholders shall elect directors only of the class whose terms
then expire.
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SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders 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
statute, the Board of Directors is expressly authorized, subject to
the protective conditions or restrictions of any outstanding series of
Preferred Stock fixed by the Board of Directors pursuant to the
authority conferred upon the Board of Directors by Article Fourth of
this Certificate of Incorporation and Section 151 of Title 8 of the
Delaware Code:
1. To make, alter or repeal the By-laws of the Corporation.
2. To authorize and cause to be executed mortgages and liens on the
real and personal property of the Corporation.
3. To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to
abolish any such reserve in the manner in which it was created.
4. 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. The Board may designate one or more
Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution 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 authorize the seal of the
Corporation to be affixed to all papers which may require it;
provided, however, the By-laws may provide that in the absence or
disqualification of any member of such committee or committees the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member.
5. Subject to the provisions of Article Fourteenth of this
Certificate of Incorporation, when and as authorized by the
affirmative vote of the holders of a majority of the stock issued
and outstanding having voting power given at a stockholders
meeting duly called upon such notice as is required by statute,
or when authorized by the written consent of the holders of a
majority of the voting stock issued and outstanding, to sell,
lease or exchange all or substantially all of the property and
assets of the Corporation, including its goodwill and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or
property including
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shares of stock in, and/or other securities of any other
corporation or corporations, as its Board of Directors shall deem
expedient and for the best interests of the Corporation.
NINTH: Whenever a compromise or arrangement is proposed between this Corp-
oration and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dis-
solution or of any receiver or receivers appointed for this Corpora-
tion under the provisions of Section 279 of Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such manner as the said court directs.
If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class
of stockholders of this Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this Corpora-
tion as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been made,
the binding on all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of this Corporation, as
the case may be, and also on this Corporation.
TENTH: Meetings of stockholders and of the Board of Directors may be held
within or without the State of Delaware, as the By-laws may provide.
The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the Board
of Directors or in the By-laws of the Corporation. Elections of
Directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this
reservation.
TWELFTH: 1. No contract or transaction between the Corporation and one or
more of its Directors or officers, or between the Corporation and
any other corporation, partnership, association or other
organization in which one or more of its Directors or officers are
directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director
or office is present at or participates in the
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meeting of the Board or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are
counted for such purpose, if:
(a) The material facts as to his interest and as to the
contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or
transaction by a vote sufficient for such purpose without
counting the vote of the interested Director or Directors;
or
(b) The material facts as to his interest and as to the
contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote
of the stockholders; or
(c) The contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by
the Board of Directors, a committee thereof, or the
stockholders.
Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
THIRTEENTH: 1. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that
he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe this conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
2. The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the
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fact that he is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) and
amounts paid in settlement actually and reasonably incurred by
him/her in connection with the defense or settlement of such
action or suit if he/she acted in good faith and in a manner
he/she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no such
indemnification shall be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
3. To the extent that any person referred to in paragraphs 1 and 2
of this Article Thirteenth has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to therein or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection
therewith.
4. Any indemnification under paragraphs 1 and 2 of this Article
Thirteenth, (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer,
employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in paragraphs 1
and 2 of this Article Thirteenth. Such determination shall be
made (a) by the Board of Directors by a majority vote of a quorum
(as defined in the By-laws of the Corporation) consisting of
Directors who were not parties to such action, suit or
proceeding, or (b) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, or (c) by the
stockholders.
5. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding in the
manner provided in paragraph 4 of this Article Thirteenth upon
receipt of an undertaking by or on behalf of the Director,
officer, employee or agent to repay such amount if it shall
ultimately be determined that he/she is not entitled to be
indemnified by the Corporation as authorized in this Article
Thirteenth.
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6. The indemnification and advancement of expenses provided by, or
granted pursuant to other section of this Article Thirteenth
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be
entitled under any statute, by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office.
7. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability
under the provisions of this Article Thirteenth.
8. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article Thirteenth shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. Any repeal or modification of
this Article Thirteenth shall not adversely affect any right to
indemnification or advancement of expenses of any present or
former director, officer, employee or agent of the Corporation
existing at the time of such repeal or modification.
9. For purposes of this Article Thirteenth, references to the
"Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Article
Thirteenth, with respect to the resulting or surviving
corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
10. For purposes of this Article Thirteenth, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director,
officer, employee or agent with respect
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to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article Thirteenth.
11. If this Article Thirteenth or any portion hereof is invalidated
by any court of competent jurisdiction, then the corporation
shall nevertheless provide such indemnification and advancement
of expenses as would otherwise be permitted under any portion of
this Article Thirteenth that shall not have been invalidated.
FOURTEENTH: A. Except as set forth in paragraph B. of this Article Fourteenth,
the affirmative vote or consent of the holders of 80% of the
outstanding shares of all classes of stock of the Corporation
entitled to vote in elections of directors, considered for the
purposes of this Article Fourteenth as one class, shall be
required:
(i) for the adoption of any agreement for the merger or
consolidation of the Corporation with or into any Other
Corporation (as hereinafter defined), or
(ii) to authorize any sale, lease, exchange, mortgage, pledge or
other disposition of all, or substantially all, or any
Substantial Part (as hereinafter defined) of the assets of
the Corporation or any Subsidiary (as hereinafter defined)
to any Other Corporation, or
(iii) to authorize the issuance or transfer by the Corporation of
any Substantial Amount(as hereinafter defined)of securities
of the Corporation in exchange for the securities or assets
of any Other Corporation
if, in any such case, as of the record date for the determination
of stockholders entitled to notice thereof and to vote thereon or
consent thereto such Other Corporation is the Beneficial Owner
(as hereinafter defined) of more than 10% of the outstanding
shares of stock of the Corporation entitled to vote in elections
of directors considered for the purposes of this Article
Fourteenth as one class. Such affirmative vote or consent shall
be in addition to the vote or consent of the holders of the stock
of the Corporation otherwise required by law, this Certificate of
Incorporation or any agreement or contract to which the
Corporation is a party.
B. The provisions of paragraph A. of this Article Fourteenth shall
not be applicable to any transaction described therein if such
transaction is approved by resolution of the Board of Directors
of the Corporation, provided that (a) a majority of the members
of the Board of Directors voting for the approval of such
transaction were duly elected and acting members of the Board of
Directors prior to the time
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such Other Corporation shall have become a Beneficial Owner of
more than 10% of the shares of stock of the Corporation entitled
to vote in elections of directors; or (b) such transaction is
approved by resolution unanimously adopted by the whole Board of
Directors of the Corporation at any time prior to the
consummation thereof.
C. The Board of Directors shall have the power and duty to determine
for the purposes of this Article Fourteenth, on the basis of
information known to such Board, if and when any Other
Corporation is the Beneficial Owner of more than 10% of the
outstanding shares of stock of the Corporation entitled to vote
in elections of directors, and any such determination shall be
conclusive and binding for all purposes of this Article
Fourteenth.
D. As used in Article Fourteenth, the following terms have the
meanings as set forth below:
"Other Corporation" means any person, firm, corporation or other
entity, other than a subsidiary of the Corporation.
"Substantial Part" means any assets having a then fair market
value, in the aggregate, of more than $5,000,000.
"Subsidiary" means any corporation in which the Corporation owns,
directly or indirectly, more than 50% of the voting securities.
"Substantial Amount" means any securities of the Corporation
having a then fair market value of more than $5,000,000.
"Beneficial Owner" of stock means a person, or an affiliate or
"associate" of such person (as such terms are defined in Rule
12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934 as in effect on February 1, 1978), who
directly or indirectly controls the voting of such stock, or who
has any option, warrants, conversion or other rights to acquire
such stock.
FIFTEENTH: In addition to any separate class vote, if any, which may be
required by law, the affirmative vote of the holders of 80% of
the outstanding shares of all classes of stock of the Corporation
entitled to vote in the election of directors, such outstanding
shares of stock to be considered as one class, shall be required
in order to amend or repeal any of the provisions of Article
Fourteenth or subsection 5 of Article Eighth of the Certificate
of Incorporation. The affirmative vote of the holders of 66-2/3%
of the outstanding shares of all classes of stock of the
Corporation entitled to vote in the election of directors, such
outstanding shares of stock to be considered as one class, shall
be required in order to amend or repeal any of the provisions of
Article Fifth of the Certificate of Incorporation.
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The same respective stockholder vote requirements prescribed by
the foregoing provisions of this Article Fifteenth shall also be
required, respectively, in order to amend or repeal the
respective foregoing provisions of this Article Fifteenth
prescribing such stockholder vote requirement.
SIXTEENTH: (a) The provisions of this Article Sixteenth shall apply
independently of any other provision of this Certificate of
Incorporation if any Other Corporation (as hereinafter defined)
seeks to accomplish a Business Combination (as hereinafter
defined) within the ten year period following the date the Other
Corporation became an Acquiring Entity (as hereinafter defined).
(b) (1) As used in Article Sixteenth,the following terms
shall have the meanings as set forth below:
"Acquiring Entity" means any Other Corporation which
is, and for fewer than ten years has been, the
Beneficial Owner of more than 10% of the outstanding
shares of stock of the Corporation entitled to vote in
elections of directors, considered for the purposes of
this paragraph as one class.
"Affiliate" or "Associate" of a person have the same
meaning as is assigned to such terms under Rule 12b-2
of the General Rules and Regulations (the
"Regulations") under the Securities Exchange Act of
1934 as in effect on March 1, 1983.
"Beneficial Owner" of stock means a person, or an
Affiliate or Associate of such person, who is a
"beneficial owner" of stock, as such term is defined
under Rule 13d-3 of the Regulations as in effect on
March 1, 1983, except that, without limitation, any
shares of voting stock of the Corporation that any
Acquiring Entity, or any Affiliate or Associate of such
Acquiring Entity, has the right to acquire pursuant to
any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise, shall be deemed
beneficially owned by the Acquiring Entity.
"Business Combination" means any transaction described
in part A. of Article Fourteenth.
"Continuing Director" means a director duly elected to
the Board of Directors prior to the time the Other
Corporation became an Acquiring Entity, and the term
"Outside Director" shall mean a director who is not (a)
an officer or employee of the Corporation or any
relative of an officer or employer or (b) an Acquiring
Entity, or an officer, director, employee, Affiliate or
Associate of an Acquiring Entity, or a relative of any
of the foregoing.
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"Other Corporation" shall have the same meaning as set
forth in part D. of Article Fourteenth.
(2) For the purposes of this Article Sixteenth, the Board
of Directors shall have the power and duty to
determine, on the basis of information known to such
Board, if and when any Other Corporation is or has
become an Acquiring Entity. Any such determination
shall be conclusive and binding for all purposes of
this Article Sixteenth.
(c) Except as set forth in part (d) of this Article
Sixteenth, the affirmative vote of the holders of
66-2/3% of all classes of stock of the Corporation
entitled to vote in elections of directors, considered
for this purpose as one class, excluding stock of which
the Acquiring Entity is the Beneficial Owner, shall be
required for approval of any Business Combination with
an Other Corporation unless all of the following
conditions are fulfilled.
(1) The cash or fair market value or other consideration to
be received per share by common stockholders of the
Corporation in such Business Combination will not, at
the time the Business Combination is effected, be less
than the greater of:
(A) the highest per share price (including brokerage
commissions and/or soliciting dealers' fees) paid
by the Acquiring Entity in acquiring any of it
holdings of the Corporation's Common Stock; or
(B) an amount bearing a percentage relationship to the
market price of the Corporation's Common Stock
immediately prior to the public announcement of
such Business Combination equal to the highest
percentage relationship that any per share price
(including brokerage commissions and/or soliciting
dealers' fees) theretofore paid by the Acquiring
Entity for any of its holdings of the
Corporation's Common Stock bore to the market
price of such Common Stock immediately prior to
the transaction resulting in the acquisition of
such Common Stock; or
(C) the book value of the Corporation's Common Stock
as of the end of the most recent calendar quarter
determined in accordance with generally accepted
accounting principles; or
(D) an amount calculated by multiplying the earnings
per share of the Corporation's Common Stock for
the four fiscal quarters immediately preceding the
record date for determination of stockholders
entitled to vote on such Business Combination by
the then price earnings multiple of the Acquiring
Entity as customarily computed and reported in the
financial press.
c
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Appropriate adjustments shall be made with respect
to (A), (B), (C) and (D) above for
recapitalization and for stock splits, stock
dividends, and like distributions. For purposes of
subparagraph (c)(1) of this Article Sixteenth, the
term "other consideration to be received" shall
include, without limitation, capital stock of this
Corporation retained by its existing public
stockholders in the event of a Business
Combination in which this Corporation is the
surviving corporation.
(2) After the Other Corporation has become an Acquiring
Entity:
(A) the Corporation's Board of Directors shall have
included at all times representation by one or
more Continuing Directors unless the lack of such
representation results entirely from either death
or normal retirement under retirement policies in
effect prior to the time the Other Corporation
became an Acquiring Entity; and
(B) there shall have been no reduction in the rate of
dividends payable on the Corporation's Common
Stock except as required by law or as may be
necessary to insure that the Corporation is not in
breach of any covenant in any of its agreements
for borrowed money, or except as may have been
approved by a majority vote of the Continuing
Directors; and
(C) such Acquiring Entity shall not have acquired any
newly issued shares of stock, directly or
indirectly, from the Corporation (except upon
conversion of convertible securities acquired by
it prior to becoming an Acquiring Entity or as a
result of a pro rate stock dividend or stock
split, or except with the approval of a majority
vote of the Continuing Directors).
(3) Without the approval of a majority vote of the
Continuing Directors, such Acquiring Entity shall not
have (i) received the benefit directly or indirectly
(except proportionately as a stockholder) of any loans,
advances, guarantees, pledges or other financial
assistance provided by the Corporation, or (ii) made
any major change in the Corporation's business or
equity capital structure.
(4) A timely mailing shall have been made to the
stockholders of this Corporation containing in a
prominent place (i) any recommendations as to the
advisability (or inadvisability) of the Business
Combination that the Continuing Directors or Outside
Directors may choose to state, if there are at the time
any such directors, and (ii) the opinion of a reputable
nationally recognized investment banking or financial
services firm as to the fairness (or not) of the terms
of the Business Combination, from the point of view of
the stockholders of this Corporation other than the
Acquiring Entity (such firm to be engaged solely on
behalf of such other stockholders, to be paid a
reasonable fee for its services by this Corporation
upon receipt of such opinion, to be a firm that has not
previously been significantly
- 29 -
associated with the Acquiring Entity and, if there are
at the time any such directors, to be selected by a
majority of the Continuing Directors and Outside
Directors).
(d) The provisions of part (c) of this Article Sixteenth
shall not be applicable to any Business Combination if:
(i) such transaction is approved by resolution
unanimously adopted by the whole Board of Directors of
the Corporation at any time prior to the consummation
thereof; or (ii) the Business Combination is solely
between this Corporation and another corporation, 50%
or more of the voting stock of which is owned by this
Corporation and none of which is owned by the Acquiring
Entity; provided that if this Corporation is not the
surviving entity, each stockholder of this Corporation
receives the same type of consideration in such
transaction in proportion to his stock holdings and the
provisions of this Article Sixteenth of the
Corporation's Certificate of Incorporation are
continued in effect or adopted by such surviving
corporation as part of its articles of incorporation or
certificate of incorporation, as the case may be,
without any charge.
(e) In connection with a proposed Business Combination, the
Continuing Directors may retain special outside legal
counsel, an investment banking firm, an accounting
firm, and such other experts that they, in their
discretion, may deem necessary or appropriate to assist
them in their evaluation of the transaction, all at the
expense of the Corporation.
(f) In addition to any other provision of this Certificate
of Incorporation, there shall be required to amend,
alter, change or repeal any of the provisions of this
Article Sixteenth the affirmative vote of the holders
of 66-2/3% of all classes of stock of the Corporation
entitled to vote in elections of directors, considered
for this purpose as one class, excluding stock of which
an Acquiring entity, if any, is the Beneficial Owner.
(g) Nothing contained in this Article Sixteenth shall be
construed to relieve an Acquiring Entity from any
fiduciary obligation imposed by law. The conditions and
voting requirements of this Article Sixteenth shall be
in addition to the conditions and voting requirements
imposed by law or other provisions of this Certificate
of Incorporation, including, without limitation,
Article Fourteenth.
SEVENTEENTH: No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for any
breach of fiduciary duty as a director; provided, however, that
this Article Seventeenth shall not eliminate or limit the
liability of a director (1) for any breach of the director's duty
of loyalty to the Corporation or its shareholders, (2) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) under Section 174
of the General
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Corporation Law of the State of Delaware, or (4) for any
transaction from which the director derived an improper personal
benefit. If the General Corporation Law of the State of Delaware
is amended after approval by the shareholders of the Corporation
of this provision to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph by the
shareholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
IN WITNESS WHEREOF, said Old Republic International Corporation has
caused this Restated Certificate of Incorporation to be signed and executed by
its President and attested by its Secretary.
OLD REPUBLIC INTERNATIONAL CORPORATION
By: /s/ A. C. Zucaro
----------------------------------
A. C. Zucaro, President
ATTEST:
/s/ Spencer LeRoy, III
- ----------------------------
Spencer LeRoy III, Secretary
[Corporate Seal]
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