xxxiii
Exhibit (3)
CERTIFICATE OF INCORPORATION
OF
OWENS CORNING
We, the undersigned, in order to form a
corporation for the purposes hereinafter stated,
under and pursuant to the provisions of the
General Corporation Law of the State of Delaware,
do hereby certify as follows:
FIRST. The name of this corporation is
Owens Corning
SECOND. Its principal office in the State of
Delaware is located at 1209 Orange Street, City
of Wilmington, County of New Castle, State of
Delaware. The name and address of its resident
agent is The Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware.
THIRD. The nature of the business and the
objects and purposes to be transacted, promoted
and carried on by the corporation are as follows:
A. To manufacture, fabricate, buy, sell and
deal in all kinds, forms and combinations of
fibres composed of glass, minerals or any other
substance and in the products thereof or in
which such fibres form a part; and machinery,
tools, implements, materials and supplies for
the manufacture thereof; and to acquire,
construct, equip, operate, maintain and dispose
of factories, laboratories and all other things
necessary or convenient for manufacturing and
dealing in such fibres and substances and
products thereof, and such machinery, tools,
implements, materials and supplies;
B. To manufacture, purchase or otherwise
acquire, own, mortgage, pledge, sell, assign
and transfer, or otherwise dispose of, and to
invest, trade, deal in and deal with goods,
wares and merchandise, and real and personal
property of every class and description;
C. To apply for, purchase or otherwise
acquire patents, licenses, inventions,
improvements, processes, copyrights, trade
systems, trademarks and trade names and any
secret or other information and any right,
option, or contract in relation thereto, and to
fulfill the terms and conditions thereof, and
to maintain, lease, license, sell, transfer or
otherwise dispose of and turn to account and
deal in the same;
D. To enter into any agreement for the
sharing of profits, union of interest,
cooperation or joint adventure, or otherwise,
with any person, partnership, trustee, joint
stock association, or corporation, or any
business or transaction capable of being
conducted so as, directly or indirectly, to
benefit this corporation;
E. To establish, support, maintain and
operate or aid in the establishment, support,
maintenance and operation of associations,
institutions, funds, trusts and conveniences
calculated to benefit employees or the ex-
employees of the corporation or the dependents
or connections of such persons; and to grant
pensions and allowances, and to make payments
for insurance, and to subscribe or guarantee
money for any charitable or benevolent objects,
or for any exhibition, or for any public,
general or useful objects;
F. To promote and organize any corporation
or corporations for the purpose of acquiring or
owning any of the properties, rights and
liabilities of this corporation, or for any
other purpose which may seem directly or
indirectly calculated to benefit this
corporation;
G. To acquire the goodwill, rights, and
properties and the whole or any part of the
assets, tangible or intangible, and to
undertake or in any way assume the liabilities
of any person, firm, association or
corporation, or to purchase the shares of or
any other interest in any firm, association or
corporation; to pay for said goodwill, rights,
properties, assets, shares or other interest in
cash, the shares of this company, bonds or
other obligations of this corporation, or any
other consideration, or by undertaking the
whole or any part of the liabilities of the
transferors; to hold or in any manner dispose
of the whole or any part of such property so
purchased; to conduct the whole or any part of
any business so acquired; and to exercise all
the powers necessary or convenient in and about
the conduct and management of such business;
H. To guarantee, purchase, hold, sell,
assign, transfer, mortgage, pledge or otherwise
dispose of shares of the capital stock of, or
any bonds, securities or evidences of
indebtedness created by any other corporation
or corporations organized under the laws of
this state or any other state, country, nation
or government, and while the owner thereof to
exercise all the rights, powers and privileges
of ownership;
I. To enter into, make and perform contracts
of every kind and description with any person,
firm, association, corporation, municipality,
county, state, body politic or government or
colony or dependency thereof;
J. To borrow or raise moneys for any of the
purposes of the corporation and from time to
time, without limit as to amount, to draw,
make, accept, endorse, execute and issue
promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other
negotiable or non-negotiable instruments and
evidences of indebtedness and to secure the
payment of any thereof and of the interest
thereon by mortgage upon or pledge, conveyance
or assignment in trust of the whole or any part
of the property of the corporation, whether at
the time owned or thereafter acquired, and to
sell, pledge or otherwise dispose of such bonds
or other obligations of the corporation for its
corporate purposes;
K. To purchase, hold, sell and transfer the
shares of its own capital stock provided it
shall not use its funds or property for the
purchase of its own shares of capital stock
when such use would cause any impairment of its
capital except as otherwise permitted by law
and provided further that shares of its own
capital stock belonging to it shall not be
voted upon directly or indirectly;
L. To have one or more offices and to
conduct any or all of its operations or
business and to promote its objects within and
without the State of Delaware without
restriction as to place or amount;
M. To have and to exercise any and all
powers and privileges now or hereafter
conferred by the laws of Delaware and all
extensions thereof by amendments thereto
hereafter made;
N. To do all or any of the above things in
any part of the world as principal, agent,
contractor or otherwise, and by or through
trustees, agents or otherwise, and either alone
or in conjunction with others, and to do all
such other things as are necessary, convenient
or expedient to the above purposes.
And it is hereby expressly provided that the
enumeration herein of specific purposes or
powers shall not be held to limit or restrict
in any manner the general powers of the
corporation; and it is further provided that
any and all of the foregoing objects, powers or
purposes may at any time and from time to time
be changed, altered or amended in the manner
provided by law for the amendment of
certificates of incorporation, and none of the
above clauses or the purposes therein specified
or the powers thereby conferred shall be deemed
subsidiary or auxiliary merely to the purposes
mentioned in the first or any other clause of
this article, but the company shall have full
power to exercise all or any of the powers
conferred by any part of this article in any
part of the world.
FOURTH. The total number of shares of stock
which the Corporation is authorized to issue is
108,000,000 shares of which:
(a) 8,000,000 shares shall be Preferred Stock,
issuable in series, of no par value per share,
and
(b) 100,000,000 shares shall be Common Stock
of par value of $.1O per share.
The designations, powers, preferences and
rights, and the qualifications, limitations or
restrictions of the Preferred Stock and the
Common Stock are as follows:
A. Preferred Stock
The Preferred Stock may be issued from time
to time in one or more series and with such
designation for each such series as shall be
stated and expressed in the resolution or
resolutions providing for the issue of each
such series adopted by the Board of
Directors. The Board of Directors in any such
resolution or resolutions is expressly
authorized to state and express for each such
series:
(i) Voting rights, if any, including,
without limitation, the authority to confer
multiple votes per share, voting rights as to
specified matters or issues or, subject to
the provisions of this Certificate of
Incorporation, as amended, voting rights to
be exercised either together with holders of
Common Stock as a single class, or
independently as a separate class;
(ii) The rate per annum and the times at and
conditions upon which the holders of shares
of such series shall be entitled to receive
dividends, the conditions and the dates upon
which such dividends shall be payable and
whether such dividends shall be cumulative or
noncumulative, and, if cumulative, the terms
upon which such dividends shall be
cumulative;
(iii) Redemption, repurchase, retirement
and sinking fund rights, preferences and
limitations, if any, the amount payable on
shares of such series in the event of such
redemption, repurchase or retirement, the
terms and conditions of any sinking fund, the
manner of creating such fund or funds and
whether any of the foregoing shall be
cumulative or noncumulative;
(iv) The rights to which the holders of the
shares of such series shall be entitled upon
any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(v) The terms, if any, upon which 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 or any other class or classes,
including the price or prices or the rate or
rates of conversion or exchange and the terms
of adjustment, if any; and
(vi) Any other designations, preferences and
relative, participating, optional or other
special rights, and qualifications,
limitations or restrictions thereof so far as
they are not inconsistent with the provisions
of this Certificate of Incorporation, as
amended, and to the full extent now or
hereafter permitted by the laws of the State
of Delaware.
All shares of the Preferred Stock of any one
series shall be identical to each other in all
respects, except that shares of any one series
issued at different times may differ as to the
dates from which dividends thereon, if
cumulative, shall be cumulative.
B. Common Stock
(i) Whenever dividends upon the Preferred
Stock at the time outstanding shall have
been paid in full for all past dividend
periods or declared and set apart for
payment, such dividends as may be determined
by the Board of Directors may be declared by
the Board of Directors and paid from time to
time to the holders of the Common Stock.
(ii) In the event of any liquidation,
dissolution or winding up of the affairs of
the Corporation, whether voluntary or
involuntary, the assets and funds of the
Corporation remaining after the payment to
the holders of the Preferred Stock at the
time outstanding of the full amounts to
which they shall be entitled shall be
distributed among the holders of the Common
Stock according to their respective shares.
(iii) The shares of Common Stock shall
entitle the holders of record thereof to one
vote for each share upon all matters upon
which stockholders have the right to vote,
subject only to any exclusive voting rights
which may vest in holders of the Preferred
Stock under the provisions of any series of
the Preferred Stock established by the Board
of Directors pursuant to the authority
provided in this Article Fourth.
FIFTH. The minimum amount of capital with
which the corporation will commence business is
One Thousand Dollars ($1,000.00).
SIXTH. The name and place of residence of
each of the incorporators are as follows:
Names Residence
L. E. Gray...............Wilmington, Delaware
L. H. Herman.............Wilmington, Delaware
Walter Lenz..............Wilmington, Delaware
SEVENTH. The private property of the
stockholders shall not be subject to the
payment of corporate debts to any extent
whatever.
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:
A. To authorize and cause to be executed
mortgages and liens, without limit as to
amount, upon the real and personal property of
the corporation, including after-acquired
property;
B. From time to time without the assent or
vote of the stockholders, to fix the times for
the declaration and payment of dividends; to
fix and vary the amount to be reserved as
working capital; 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 reserve so created;
to fix and determine, subject to the
limitations imposed by law, what portion of the
consideration received upon any issue of stock
shall constitute capital and what portion, if
any, paid-in surplus; to cause dividends to be
paid from such paid-in surplus or from any
surplus due to appreciation in value of any
property of the corporation in the same manner
as though the same were net profits or earned
surplus; to determine whether dividends shall
be declared and paid in cash or capital stock
of the corporation or in other property; to
determine the use and disposition of any
surplus or net profits of the corporation and
to use and apply any such surplus or net
profits for the purchase or acquisition of
bonds or other obligations or shares of stock
of the corporation to such extent and in such
manner and upon such terms as the Board of
Directors shall deem expedient, and shares of
stock of the corporation so purchased or
acquired may be resold unless such shares
have been canceled and retired for the
purpose of decreasing the stock of the
corporation as provided by law;
C. Without the assent or vote of the
stockholders, from time to time, to authorize
and put into operation a plan or plans whereby
the officers and employees of the corporation,
or any of them, shall participate in the
earnings and profits of the corporation; and
pursuant to any plan so adopted, the Board of
Directors shall have power to authorize the
payment of extra compensation to any officer or
employee and in the discretion of the Board of
Directors such payment may be made in cash or
in full-paid shares of the capital stock of the
corporation or otherwise.
D. The Corporation may in its By-Laws confer
powers upon its Board of Directors in addition
to the foregoing and in addition to the powers
and authorities expressly conferred upon it by
statute.
NINTH. The fact that the stockholders or
directors or officers of the corporation are,
in whole or in part, the same as those of any
other corporation shall not in any way affect
the validity and enforceability of any
agreement or transaction between the two
corporations.
TENTH. The stockholders and directors shall
have the power to hold their meetings, to
have an office or offices and to keep the books
of this corporation (subject to the provisions
of the statutes) outside of the State of
Delaware at such places as may from time to
time be designated by the By-Laws or by
resolution of the Board of Directors.
ELEVENTH.
(a) Elections for directors shall not be by
ballot unless demand is made for election by
ballot by a stockholder entitled to vote for
the election of directors.
(b) The business and affairs of the
Corporation shall be managed by a Board of
Directors consisting of not less than nine nor
more than twelve 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 the affirmative vote of a majority of the
entire Board of Directors; and such exact
number shall be eleven unless otherwise
determined by resolution so adopted by a
majority of the entire Board of Directors. As
used in this Certificate of Incorporation, the
term "entire Board of Directors" means the
total authorized number of directors which the
Corporation would have if there were no
vacancies.
At the 1984 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 1985 Annual Meeting of
Stockholders, the term of office of the second
class to expire at the 1986 Annual Meeting of
Stockholders and the term of office of the
third class to expire at the 1987 Annual
Meeting of Stockholders. Commencing with the
1985 Annual Meeting of Stockholders, directors
elected to succeed those directors whose terms
have thereupon expired shall be elected for a
term of office to expire at the third
succeeding Annual Meeting of Stockholders after
their election. If the number of directors is
changed, any increase or decrease shall be
apportioned among the classes so as to
maintain, if possible, the equality of the
number of directors in each class, but in no
case will a decrease in the number of directors
shorten the term of any incumbent director. If
such equality is not possible, the increase or
decrease shall be apportioned among the classes
in such a way that the difference in the number
of directors in any two classes shall not
exceed one.
(c) Subject to the rights of the holders of
any series of Preferred Stock or any other
class of capital stock of the Corporation
(other than the Common Stock) then outstanding,
newly-created directorships resulting from an
increase in the authorized number of directors
in any class of directors or vacancies in any
such class resulting from death, resignation,
retirement, disqualification, removal from
office or other cause shall, if occurring prior
to the expiration of the term of office of such
class, be filled only by the affirmative vote
of a majority of the remaining directors of the
entire Board of Directors then in office,
although less than a quorum, or by the sole
remaining director. Any director of any class
so elected shall hold office for a term that
shall coincide with the remaining term of that
class. His successor shall be elected by the
stockholders at the same time and for the same
term as the other directors of that class.
(d) Whenever the holders of any one or more
series of Preferred Stock issued by the
Corporation shall have the right, voting
separately by series, to elect directors at an
annual or special meeting of stockholders, the
election, term of office, filling of vacancies
and other features of such directorships shall
be governed by this Article Eleventh unless
expressly otherwise provided by the resolution
or resolutions providing for the creation of
such series.
(e) Notwithstanding any other provision of
this Certificate of Incorporation and subject
to the other provisions of this Article
Eleventh, the Board of Directors shall
determine the rights, powers, duties, rules and
procedures that shall affect the directors'
power to manage and direct the business and
affairs of the Corporation. Without limiting
the foregoing, the Board of Directors shall
designate and empower committees of the Board
of Directors, shall elect and empower the
officers of the Corporation, may appoint and
empower other officers and agents of the
Corporation, and shall determine the time and
place of, and the notice requirements for,
Board meetings, as well as quorum and voting
requirements for, and the manner of taking,
Board action.
TWELFTH. 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 such holders and may not be
effected by any consent in writing by such
holders. Except as otherwise required by law
and subject to the rights of the holders of any
class or series of stock having a preference
over the Common Stock as to dividends or upon
liquidation, special meetings of stockholders
of the corporation may be called only by the
Board of Directors pursuant to a resolution
approved by a majority of the entire Board of
Directors.
THIRTEENTH.
A. In addition to any affirmative vote
required by law or this Certificate of
Incorporation or the By-Laws of the
corporation, and except as otherwise expressly
provided in Section B of this Article
THIRTEENTH, a Business Combination (as
hereinafter defined) with, or proposed by or on
behalf of, an Interested Stockholder (as
hereinafter defined) or any Affiliate or
Associate (as hereinafter defined) of such
Interested Stockholder or any person who
thereafter would be an Affiliate or Associate
of such Interested Stockholder shall require
the affirmative vote of not less than sixty-six
and two-thirds percent (66 2/3%) of the votes
entitled to be cast by the holders of all the
then outstanding shares of Voting Stock (as
hereinafter defined), voting together as a
single class, excluding Voting Stock
beneficially owned by such Interested
Stockholder. Such affirmative vote shall be
required notwithstanding the fact that no vote
may be required, or that a lesser percentage or
separate class vote may be specified, by law or
in any agreement with any national securities
exchange or otherwise.
B. The provisions of Section A of this
Article THIRTEENTH shall not be applicable to
any particular Business Combination, and such
Business Combination shall require only such
affirmative vote, if any, as is required by law
or by any other provision of this Certificate
of Incorporation or the By-Laws of the
corporation, or any agreement with any national
securities exchange, if all of the conditions
specified in either of the following Paragraphs
1 or 2 are met or, in the case of a Business
Combination not involving the payment of
consideration to the holders of the
corporation's outstanding Capital Stock (as
hereinafter defined), if the condition
specified in the following Paragraph 1 is met:
1. The Business Combination shall have been
approved, either specifically or as a
transaction which is within an approved
category of transactions, by a majority
(whether such approval is made prior to or
subsequent to the acquisition of, or
announcement or public disclosure of the
intention to acquire, beneficial ownership of
the Voting Stock that caused the Interested
Stockholder to become an Interested
Stockholder) of the Continuing Directors (as
hereinafter defined).
2. All of the following conditions shall
have been met:
a. The aggregate per share amount of cash and
the Fair Market Value (as hereinafter defined),
as of the date of the consummation of the
Business Combination, of consideration other
than cash to be received by holders of Common
Stock in such Business Combination shall be at
least equal to the highest amount determined
under clauses (i), (ii), (iii) and (iv) below;
(i) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Interested
Stockholder for any share of Common Stock in
connection with the acquisition by the
Interested Stockholder of beneficial ownership
of shares of Common Stock (x) within the two-
year period immediately prior to the first
public announcement of the proposed Business
Combination (the "Announcement Date") or (y) in
the transaction in which it became an
Interested Stockholder, whichever is higher, in
either case as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification affecting or relating to the
Common Stock;
(ii) the Fair Market Value per share
of Common Stock on the Announcement Date or on
the date on which the Interested Stockholder
became an Interested Stockholder (the
"Determination Date"), whichever is higher, as
adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification
affecting or relating to the Common Stock;
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of
Common Stock determined pursuant to the
immediately preceding clause (ii), multiplied
by the ratio of (x) the highest per share price
(including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Stockholder for any
share of Common Stock in connection with the
acquisition by the Interested Stockholder of
beneficial ownership of shares of Common Stock
within the two-year period immediately prior to
the Announcement Date, as adjusted for any
subsequent stock split, stock dividend, subdivi
sion or reclassification affecting or relating
to the Common Stock to (y) the Fair Market
Value per share of Common Stock on the day
immediately preceding the first day in such two-
year period on which the Interested Stockholder
acquired beneficial ownership of any share of
Common Stock, as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification affecting or relating to the
Common Stock; and
(iv) the corporation's net income per
share of Common Stock for the four full
consecutive fiscal quarters immediately
preceding the Announcement Date, multiplied by
the higher of the then price/earnings multiple
(if any) of such Interested Stockholder or the
highest price/earnings multiple of the
Corporation within the two-year period
immediately preceding the Announcement
Date (such price/earnings multiples being
determined as customarily computed and
reported in the financial community).
b.The aggregate amount per share of cash and
the Fair Market Value, as of the date of the
consummation of the Business Combination, of
consideration other than cash to be received by
holders of shares of any class or series of
outstanding Capital Stock, other than Common
Stock, shall be at least equal to the highest
amount determined under clauses (i), (ii),
(iii) and (iv) below:
(i) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Interested
Stockholder for any share of such class or
series of Capital Stock in connection with the
acquisition by the Interested Stockholder of
beneficial ownership of shares of such class or
series of Capital Stock (x) within the two-year
period immediately prior to the Announcement
Date or (y) in the transaction in which it
became an Interested Stockholder, whichever is
higher, in either case as adjusted for any
subsequent stock split, stock dividend,
subdivision or reclassification affecting or
relating to such class or series of Capital
Stock;
(ii) the Fair Market Value per share
of such class or series of Capital Stock on the
Announcement Date or on the Determination Date,
whichever is higher, as adjusted for any
subsequent stock split, stock dividend,
subdivision or reclassification affecting or
relating to such class or series of Capital
Stock;
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of
such class or series of Capital Stock
determined pursuant to the immediately
preceding clause (ii), multiplied by the ratio
of (x) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf
of the Interested Stockholder for any share of
such class or series of Capital Stock in
connection with the acquisition by the
Interested Stockholder of beneficial ownership
of shares of such class or series of Capital
Stock within the two-year period immediately
prior to the Announcement Date, as adjusted for
any subsequent stock split, stock dividend,
subdivision or reclassification affecting or
relating to such class or series of Capital
Stock to (y) the Fair Market Value per share of
such class or series of Capital Stock on the
day immediately preceding the first day in such
two-year period on which the Interested
Stockholder acquired beneficial ownership of
any share of such class or series of Capital
Stock, as adjusted for any subsequent stock
split, stock dividend, subdivision or
reclassification affecting or relating to such
class or series of Capital Stock; and
(iv) (if applicable) the highest
preferential amount per share to which the
holders of shares of such class or series of
Capital Stock would be entitled in the event of
any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
corporation regardless of whether the Business
Combination to be consummated constitutes such
an event.
The provisions of this Paragraph 2 shall be
required to be met with respect to every class
or series of outstanding Capital Stock, whether
or not the Interested Stockholder has
previously acquired beneficial ownership of any
shares of a particular class or series of
Capital Stock.
c. The consideration to be received by
holders of a particular class or series of
outstanding Capital Stock shall be in cash or
in the same form as previously has been paid by
or on behalf of the Interested Stockholder in
connection with its direct or indirect
acquisition of beneficial ownership of shares
of such class or series of Capital Stock. If
the consideration so paid for shares of any
class or series of Capital Stock varied as to
form, the form of consideration for such class
or series of Capital Stock shall be either cash
or the form used to acquire beneficial
ownership of the largest number of shares of
such class or series of Capital Stock
previously acquired by the Interested
Stockholder.
d. After the Determination Date and prior
to the consummation of such Business
Combination: (i) except as approved by a
majority of the Continuing Directors, there
shall have been no failure to declare and pay
at the regular dates therefor any full
quarterly dividends (whether or not cumulative)
payable in accordance with the terms of any
outstanding Capital Stock; (ii) there shall
have been no reduction in the annual rate of
dividends paid on the Common Stock (except as
necessary to reflect any stock split, stock
dividend or subdivision of the Common Stock),
except as approved by a majority of the
Continuing Directors; (iii) there shall have
been an increase in the annual rate of
dividends paid on the Common Stock as necessary
to reflect any reclassification (including any
reverse stock split), recapitalization,
reorganization or any similar transaction that
has the effect of reducing the number of
outstanding shares of Common Stock, unless the
failure so to increase such annual rate is
approved by a majority of the Continuing
Directors; and (iv) such Interested Stockholder
shall not have become the beneficial owner of
any additional shares of Capital Stock except
as part of the transaction that results in such
Interested Stockholder becoming an Interested
Stockholder and except in a transaction that,
after giving effect thereto, would not result
in any increase in the Interested Stockholder's
percentage beneficial ownership of any class or
series of Capital Stock.
e. A proxy or information statement
describing the proposed Business Combination
and complying with the requirements of the
Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder (the
"Exchange Act") or, any subsequent provisions
replacing the Exchange Act, shall be mailed
to all stockholders of the corporation at
least 30 days prior to the consummation of
such Business Combination (whether or not
such proxy or information statement is
required to be mailed pursuant to the
Exchange Act or subsequent provisions). The
proxy or information statement shall contain on
the first page thereof, in a prominent place,
any statement as to the advisability
(or inadvisability) of the Business
Combination that the Continuing Directors,
or any of them, may choose to make
and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an
investment banking firm selected by a majority
of the Continuing Directors as to the fairness
(or absence thereof) of the terms of the
Business Combination from a financial point of
view to the holders of the outstanding shares
of Capital Stock other than the Interested
Stockholder and its Affiliates or Associates,
such investment banking firm to be paid a
reasonable fee for its services by the
corporation.
f. Such Interested Stockholder shall not
have made any major change in the corporation's
business or equity capital structure without
the approval of a majority of the Continuing
Directors.
C. The following definitions shall apply with
respect to this Article
THIRTEENTH:
1. The term "Business Combination" shall
mean:
a. any merger or consolidation of the
corporation or any Subsidiary (as hereinafter
defined) with (i) any Interested Stockholder or
(ii) any other company (whether or not itself
an Interested Stockholder) which is or after
such merger or consolidation would be an
Affiliate or Associate of an Interested
Stockholder; or
b. any sale, lease, exchange, mortgage,
pledge, transfer or other disposition or
security arrangement, investment, loan,
advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint
venture participation or other arrangement (in
one transaction or a series of transactions)
with or for the benefit of any Interested
Stockholder or any Affiliate or Associate of
any Interested Stockholder involving any
assets, securities, obligations or commitments
of the corporation, any Subsidiary or any
Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder which
has an aggregate Fair Market Value and/or
involves aggregate commitments of $2,500,000 or
more or constitutes more than 5 percent of the
book value of the total assets (in the case of
transactions involving assets or commitments
other than capital stock) or 5 percent of the
stockholders' equity (in the case of
transactions in capital stock) of the entity in
question (the "Substantial Part"), as reflected
in the most recent fiscal year-end consolidated
balance sheet of such entity existing at the
time the stockholders of the corporation would
be required to approve or authorize the
Business Combination involving the assets,
securities, obligations and/or commitments
constituting any Substantial Part, provided
that any arrangement, whether as employee,
consultant or otherwise, other than as a
director, pursuant to which any Interested
Stockholder or any Affiliate or Associate
thereof shall, directly or indirectly, have any
control over or management of any aspect of the
business or affairs of the corporation, shall
be deemed to be a "Business Combination"
irrespective of the value test set forth above;
or
c. the adoption of any plan or proposal for
the liquidation or dissolution of the
corporation or for any amendment to the corpora
tion's By-Laws; or
d. any reclassification of securities
(including any reverse stock split), or
recapitalization of the corporation, or any
merger or consolidation of the corporation with
any of its Subsidiaries or any other
transaction (whether or not with or otherwise
involving an Interested Stockholder) that has
the effect, directly or indirectly, of
increasing the proportionate share of any class
or series of Capital Stock, or any securities
convertible into Capital Stock or into equity
securities of any Subsidiary, that is
beneficially owned by any Interested
Stockholder or any Affiliate or Associate of
any Interested Stockholder; or
e. any agreement, contract or other
arrangement providing for any one or more of
the actions specified in the foregoing clauses
(a) to (d).
2. The term "Capital Stock" shall mean all
capital stock of the corporation authorized to
be issued from time to time under Article
FOURTH of this Certificate of Incorporation,
and the term "Voting Stock" shall mean all
Capital Stock which by its terms may be voted
on all matters submitted to stockholders of the
corporation generally.
3. The term "person" shall mean any
individual, firm, company or other entity and
shall include any group comprised of any person
and any other person with whom such person or
any Affiliate or Associate of such person has
any agreement, arrangement or understanding,
directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of
Capital Stock.
4. The term "Interested Stockholder" shall
mean any person (other than the corporation or
any Subsidiary and other than any profit-
sharing, employee stock ownership or other
employee benefit plan of the corporation or any
Subsidiary or any trustee of or fiduciary with
respect to any such plan when acting in such
capacity) who (a) is or has announced or
publicly disclosed a plan or intention to
become the beneficial owner of Voting Stock
representing ten percent (10%) or more of the
votes entitled to be cast by the holders of all
then
outstanding shares of Voting Stock; or (b) is
an Affiliate or Associate of the corporation
and at any time within the two-year period
immediately prior to the date in question was
the beneficial owner of Voting Stock
representing ten percent (10%) or more of the
votes entitled to be cast by the holders of all
then outstanding shares of Voting Stock.
5. A person shall be a "beneficial owner" of
any Capital Stock (a) which such person or any
of its Affiliates or Associates beneficially
owns, directly or indirectly; (b) which such
person or any of its Affiliates or Associates
has, directly or indirectly, (i) the right to
acquire (whether such right is exercisable
immediately or subject only to the passage of
time), pursuant to any agreement, arrangement
or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to
vote pursuant to any agreement, arrangement or
understanding; or (c) which are beneficially
owned, directly or indirectly, by any other
person with which such person or any of its
Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any
shares of Capital Stock. For the purposes of
determining whether a person is an Interested
Stockholder pursuant to Paragraph 4 of this
Section C, the number of shares of Capital
Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person
through application of this Paragraph 5 of
Section C, but shall not include any other
shares of Capital Stock that may be issuable
pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
6. The terms "Affiliate" and "Associate"
shall have the respective meanings ascribed to
such terms in Rule 12b-2 under the Exchange Act
as in effect on July 24, 1986 (the term
"registrant" in said Rule 12b-2 meaning in this
case the corporation).
7. The term "Subsidiary" means any company of
which a majority of any class of equity
security is beneficially owned by the
corporation; provided, however, that for the
purposes of the definition of Interested
Stockholder set forth in Paragraph 4 of this
Section C, the term "Subsidiary" shall mean
only a company of which a majority of each
class of equity security is beneficially owned
by the corporation.
8. The term "Continuing Director" means (i)
any member of the Board of Directors of the
corporation (the "Board of Directors"), while
such person is a member of the Board of
Directors, who is not an Interested Stockholder
or an Affiliate or Associate or representative
of the Interested Stockholder and was a member
of the Board of Directors prior to the time
that the Interested Stockholder became an
Interested Stockholder, and (ii) any person who
subsequently becomes a member of the Board of
Directors, while such person is a member of the
Board
of Directors, who is not an Interested
Stockholder or an Affiliate or Associate or
representative of the Interested Stockholder,
if such person's nomination for election or
election to the Board of Directors is
recommended or approved by a majority of the
Continuing Directors then in office.
9. The term "Fair Market Value" means (a) in
the case of cash, the amount of such cash; (b)
in the case of stock, the highest closing sale
price during the 30-day period immediately
preceding the date in question of a share of
such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock
is not quoted on the Composite Tape, on the New
York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal
United States securities exchange registered
under the Exchange Act on which such stock is
listed, or, if such stock is not listed on any
such exchange, the highest closing bid
quotation with respect to a share of such stock
during the 30-day period preceding the date in
question on the National Association of
Securities Dealers, Inc. Automated Quotations
System or any similar system then in use, or if
no such quotations are available, the fair
market value on the date in question of a share
of such stock as determined by a majority of
the Continuing Directors in good faith; and (c)
in the case of property other than cash or
stock, the fair market value of such property
on the date in question as determined in good
faith by a majority of the Continuing
Directors.
10. In the event of any Business Combination
in which the corporation survives, the phrase
"consideration other than cash to be received"
as used in Paragraphs 2.a and 2.b of Section B
of this Article THIRTEENTH shall include the
shares of Common Stock and/or the shares of any
other class or series of Capital Stock retained
by the holders of such shares.
D. A majority to the Continuing Directors
shall have the power and duty to determine for
the purposes of this Article THIRTEENTH, on the
basis of information known to them after
reasonable inquiry, all questions arising under
this Article THIRTEENTH, including without
limitation, (a) whether a person is an
Interested Stockholder, (b) the number of
shares of Capital Stock or other securities
beneficially owned by any person, (c) whether a
person is an Affiliate or Associate of another,
(d) whether a Proposed Action (as hereinafter
defined) is with, or proposed by, or on behalf
of an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder, (e)
whether the assets that are the subject of any
Business Combination have, or the consideration
to be received for the issuance or transfer of
securities by the corporation or any Subsidiary
in any Business Combination has, an aggregate
Fair Market Value of $2,500,000 or more, and
(f) whether the assets or securities that are
the subject of any Business Combination
constitute a Substantial Part. Any such
determination made in good faith shall be
binding and conclusive on all parties.
E. Nothing contained in this Article
THIRTEENTH shall be construed to relieve any
Interested Stockholder from any fiduciary
obligation imposed by law.
F. The fact that any Business Combination
complies with the provisions of Section B of
this Article THIRTEENTH shall not be construed
to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or
any member thereof, to approve such Business
Combination or recommend its adoption or
approval to the stockholders of the
corporation, nor shall such compliance limit,
prohibit or otherwise restrict in any manner
the Board of Directors, or any member thereof,
with respect to evaluations of or actions and
responses taken with respect to such Business
Combination.
G. For the purposes of this Article
THIRTEENTH, a Business Combination or any
proposal to amend, repeal or adopt any
provision of this Certificate of Incorporation
inconsistent with this Article THIRTEENTH
(collectively, "Proposed Action") is presumed
to have been proposed by, or on behalf of, an
Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder or a
person who thereafter would become such if (1)
after the Interested Stockholder became such,
the Proposed Action is proposed following the
election of any director of the corporation who
with respect to such Interested Stockholder,
would not qualify to serve as a Continuing
Director, or (2) such Interested Stockholder,
Affiliate, Associate or person votes for or
consents to the adoption of any such Proposed
Action, unless as to such Interested
Stockholder, Affiliate, Associate or person a
majority of the Continuing Directors makes a
good faith determination that such Proposed
Action is not proposed by or on behalf of such
Interested Stockholder, Affiliate, Associate or
person, based on information known to them
after reasonable inquiry.
H. Notwithstanding any other provisions of
this Certificate of Incorporation or the By-
Laws of the corporation (and notwithstanding
the fact that a lesser percentage or separate
class vote may be specified by law, this
Certificate of Incorporation or the By-Laws of
the corporation), any proposal to amend, repeal
or adopt any provision of this Certificate of
Incorporation inconsistent with this Article
THIRTEENTH which is proposed by or on behalf of
an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder shall
require the affirmative vote of the holders of
not less than sixty-six and two-thirds percent
(66 2/3%) of the votes entitled to be cast by
the holders of all the then outstanding shares
of Voting Stock, voting together as a single
class, excluding Voting Stock beneficially
owned by such Interested Stockholder; provided,
however, that this Section H shall not apply
to, and such sixty-six and two-thirds percent
(66 2/3%) vote shall not be required for, any
amendment, repeal or adoption unanimously
recommended by the Board of Directors if all of
such directors are persons who would be
eligible to serve as Continuing Directors
within the meaning of Section C, Paragraph 8 of
this Article THIRTEENTH.
FOURTEENTH. The corporation shall indemnify
to the full extent authorized or permitted by
law any person made, or threatened to be made,
a party to any action or proceeding (whether
civil or criminal or otherwise) by reason of
the fact that he, his testator or intestate, is
or was a director or officer of the corporation
or by reason of the fact that such director or
officer, at the request of the corporation, is
or was serving any other corporation,
partnership, joint venture, trust, employee
benefit plan or other enterprise, in any
capacity. Nothing contained herein shall affect
any rights to indemnification to which
employees other than directors and officers may
be entitled by law. No director of the
corporation shall be personally liable to the
corporation or its stockholders for monetary
damages for any breach of fiduciary duty by
such a director as a director. Notwithstanding
the foregoing sentence, a director shall be
liable to the extent provided by applicable law
(i) for any breach of the director's duty of
loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or
which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to
Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which
such director derived an improper personal
benefit. No amendment to or repeal of this
Article FOURTEENTH shall apply to or have any
effect on the 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.
FIFTEENTH. The By-Laws of this corporation
may be amended by the affirmative vote of a
majority of the whole Board of Directors or by
the affirmative vote of the holders of a
majority of the issued and outstanding common
stock of this corporation. Any provision of the
By-Laws adopted or amended by the stockholders
may be amended by the Board of Directors except
that the stockholders may from time to time
specify particular provisions thereof which
shall not be amended by the Board of Directors.
SIXTEENTH. (a) Notwithstanding anything
contained in this Certificate of Incorporation
to the contrary, Article ELEVENTH, Article
TWELFTH and Article FOURTEENTH hereof shall not
be altered, amended or repealed and no
provision inconsistent therewith shall be
adopted without the affirmative vote of the
holders of at least 66 2/3% of the voting power
of all the shares of the corporation entitled
to vote generally in the election of directors,
voting together as a single class.
Notwithstanding anything contained in this
Certificate of Incorporation to the contrary,
the affirmative vote of the holders of at least
66 2/3% of the voting power of all the shares
of the corporation entitled to vote generally
in the election of directors, voting together
as a single class, shall be required to alter,
amend, adopt any provision inconsistent with or
repeal this paragraph (a) of Article SIXTEENTH.
(b) The corporation reserves the right to
amend, alter, change or repeal any provision
contained in its Certificate of Incorporation,
or any amendment thereof, in the manner now or
hereafter prescribed by the laws of the State
of Delaware or this Certificate of
Incorporation, and all rights conferred upon
the stockholders of the corporation are granted
subject to this reservation.
SEVENTEENTH. The rights of the holders of the
Common Stock, the Preferred Stock or other
capital stock of the corporation, whenever
acquired, shall be subordinate to the rights of
all holders of indebtedness in the event of any
reorganization or liquidation of the
corporation, even if the claim for such
indebtedness is disallowed, avoided or
subordinated pursuant to the provisions of
Title 11 of the United States Code, as in
effect from time to time, or other applicable
laws.
EIGHTEENTH. The corporation is to have
perpetual existence.
In Witness Whereof, we have hereunto set our
hands and seals this 31st day of October, 1938.
L. E. Gray (L. S.)
L. H. Herman (L. S.)
Walter Lenz (L. S.)
In Presence of:
Harold E. Grantland
}ss
State of Delaware,
County of New Castle,
Be it remembered that on the 31st day of
October, 1938, personally came before me, a
Notary Public in and for the County and State
aforesaid, L. E. Gray, L. H. Herman and Walter
Lenz, all of the parties to the foregoing
Certificate of Incorporation, known to me
personally to be such, and severally
acknowledged said Certificate to be the act and
deed of the signers respectively and that the
facts herein stated are truly set forth.
Given under my hand and seal the day and year
aforesaid,
Harold E. Grantland
Notary Public
Harold E. Grantland
Notary Public
Appointed Jan. 11, 1937
State of Delaware
Term Two Years
TERMS OF PREFERRED STOCK
created by
CERTIFICATE OF DESIGNATION OF SERIES A
PARTICIPATING PREFERRED STOCK
filed December 24, 1986
and
CERTIFICATE OF INCREASE
OF DESIGNATION OF SERIES A
PARTICIPATING PREFERRED STOCK
filed August 9, 1994
Section 1. Designation and Amount. The
shares of such series shall be designated as
Series A Participating Preferred Stock, no
par value (the "Series A Preferred Stock")
and the number of shares constituting such
series shall be 750,000. 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, $.10 par value
of the Corporation (the "Common Stock") and
of any other junior stock which may be
outstanding, 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 January, April, July
and October 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) $2.50 per
share ($10.00 per annum), 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 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 $2.50 per share ($10.00 per annum) 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 of Series A Preferred Stock,
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 accumulate
but 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 provisions for
adjustment as hereinafter set forth, each
share of Series A Preferred Stock shall
entitle the holder thereof to 100 votes (and
each one one-hundredth of a 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 Common Stock payable in shares of Common
Stock or effect a subdivision or combination
or consolidation of the outstanding shares of
Common Stock (by reclassification or
otherwise than by payment of a dividend in
shares of Common Stock into a greater or
lesser number of shares of Common Stock, then
in each such case the number of votes per
share to which holders of shares of Series 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.
(B) Except as otherwise provided herein,
in the Restated Certificate of Incorporation,
in any other certificate of designation
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) If at the time of any annual meeting
of stockholders for the election of
directors, the equivalent of six quarterly
dividends (whether or not consecutive)
payable on any share or shares of Series A
Preferred Stock are in default, the number of
directors constituting the Board of Directors
of the Corporation shall be increased by two.
In addition to voting together with the
holders of Common Stock for the election of
other directors of the Corporation, the
holders of record of the Series A Preferred
Stock, voting separately as a class to the
exclusion of the holders of Common Stock,
shall be entitled at said meeting of
stockholders (and at each subsequent annual
meeting of stockholders), unless all
dividends in arrears have been paid or
declared and set apart for payment prior
thereto, to vote for the election of two
directors of the Corporation. Until the
default in payments of all dividends which
permitted the election of said directors
shall cease to exist any director who shall
have been so elected pursuant to the next
preceding sentence may be removed at any
time, either with or without cause, only by
the affirmative vote of the holders of the
shares at the time entitled to cast a
majority of the votes entitled to be cast,
for the election of any such director at a
special meeting of such holders called for
that purpose, and any vacancy thereby created
may be filled by the vote of such holders.
If and when such default shall cease to
exist, the holders of the Series A Preferred
Stock shall be divested of the foregoing
special voting rights, subject to revesting
in the event of each and every subsequent
like default in payments of dividends. Upon
the termination of the foregoing special
voting rights, the terms of office of all
persons who may have been elected directors
pursuant to said special voting rights shall
forthwith terminate, and the number of
directors constituting the Board of Directors
shall be reduced by two. The voting rights
granted by this Section 3(c) shall be in
addition to any other voting rights granted
to the holders of the Series B Preferred
Stock in this Section 3.
(D) Except as provided herein, in Section
10 or by applicable 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 authorizing or
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 on, make any
other distributions on any shares or 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 on a parity (either as to
dividends or upon liquidation, dissolution or
winding-up) with the Series A Preferred
Stock, provided that the Corporation may at
any time redeem, purchase or otherwise
acquire shares of any such parity 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) purchase or otherwise acquire for
consideration any shares of Series A
Preferred Stock, or any shares of stock
ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding-
up) with the Series 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
cancelled promptly after the acquisition
thereof. All such shares shall upon their
cancellation become authorized but unissued
shares of preferred stock, without
designation asto series, and may be reissued
as part of a new series of preferred stock to
be created by resolution or resolutions of
the Board of Directors, subject to the
conditions and restrictions on issuance set
forth herein, in the Restated Certificate of
Incorporation, in any other certificate of
designation 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 voluntary or
involuntary liquidation, dissolution or
winding-up of the Corporation, no
distribution shall be made (A) 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 the higher of (i) $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,
or (ii) 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 Common Stock; nor shall any
distribution be made (B) to the holders 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 other
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 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
provision in clause (A) of the preceding
sentence shall be adjusted by multiplying
such amount by a fraction the numerator of
which is the number of shares of Common Stock
outstanding immediately after such event and
thedenominator 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, or otherwise changed, 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 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. Unless otherwise
provided in the Restated Certificate of
Incorporation of the Corporation or a
Certificate of Designation relating to a
subsequent series of preferred stock of the
Corporation, the Series A Preferred Stock
shall rank junior to all other series of the
Corporation's preferred stock as to the
payment of dividends and the distribution of
assets on liquidation, dissolution or winding-
up, and senior to the Common Stock of this
Corporation.
Section 10. Amendment. The Restated
Certificate of Incorporation of the
Corporation, as amended, 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 series.
Section 11. Fractional Shares. Series A
Preferred Stock may be issued in fractions of
a share (in one one-hundredths (1/100) of a
share and integral multiples thereof) which
shall be entitle the holder, in proportion to
such holder's fractional shares, to exercise
voting rights, receive dividends, participate
in distributions and to have the benefit of
all other rights of holders of Series A
Preferred Stock.