CERTIFICATE OF AMENDMENT TO THE
RESTATED CERTIFICATE OF INCORPORATION
PENNZENERGY COMPANY, a corporation organized and existing
under and by virtue of the General Corporation Law of the State
of Delaware, DOES HEREBY CERTIFY:
FIRST: Article FIFTH of the corporation's current Restated
Certificate of Incorporation is hereby amended by deleting the
first sentence of Section 2 of Article FIFTH in its entirety and
substituting the following sentence therefor:
The number of Directors which shall constitute the
whole Board of Directors of the corporation shall be not
less than 3 nor more than 9 as specified from time to time
in the By-laws of the corporation, except in the case of an
increase in the number of Directors by reason of any default
provisions contained in Article FOURTH.
SECOND: The foregoing amendment to the corporation's
Restated Certificate of Incorporation was unanimously adopted by
the corporation's Board of Directors at a meeting duly called and
held on February 17, 1999 and by the holders of a majority of the
outstanding shares of the corporation's capital stock at a
meeting duly called and held on May 6, 1999, all in accordance
with the provisions of Section 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate to be executed in its name and on its behalf by its
duly authorized officer and its corporate seal to be affixed
hereto and attested by its Secretary on this 6th day of May,
1999.
PENNZENERGY COMPANY
By: /s/ Stephen D. Chesebro'
Stephen D. Chesebro'
President and Chief Executive Officer
ATTEST:
By: /s/ Linda L. Meagher
Linda L. Meagher
Corporate Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
PENNZENERGY COMPANY
INTO
PENNZOIL COMPANY
Pursuant to Section 253 of the
General Corporation Law of the State of Delaware
PENNZOIL COMPANY, a corporation organized and existing
under the laws of Delaware (the "Company"), DOES HEREBY CERTIFY:
FIRST: That the Company was incorporated on April 1,
1968, pursuant to the General Corporation Law of the State of
Delaware;
SECOND: That the Company is the legal and beneficial
owner of all of the outstanding shares of Common Stock, par value
$.01 per share, of PennzEnergy Company, a Delaware corporation,
and that said Common Stock is the only issued and outstanding
class of stock of PennzEnergy Company;
THIRD: That the Company desires to merge into itself
PennzEnergy Company and thereby to change the Company's corporate
name to "PennzEnergy Company" pursuant to the provisions of
Section 253 of the Delaware General Corporation Law (the "DGCL");
FOURTH: That the Company, by the following resolutions
of its Board of Directors, duly adopted on December 2, 1998,
determined to merge into itself PennzEnergy Company, and thereby
assume all of the liabilities and obligations of PennzEnergy
Company, and to change the Company's corporate name to
"PennzEnergy Company":
Merger of Merger Sub into Company
WHEREAS, the Company is the legal and beneficial owner
of all of the outstanding shares of Common Stock, par value $.01
per share ("Merger Sub Common Stock"), of PennzEnergy Company, a
Delaware corporation ("Merger Sub");
WHEREAS, said Merger Sub Common Stock is the only
issued and outstanding class of stock of Merger Sub;
WHEREAS, the Company desires to merge into itself
Merger Sub pursuant to the
provisions of Section 253 of the DGCL;
NOW, THEREFORE, LET IT BE
RESOLVED, that, pursuant to the provisions of Section
253 of the DGCL, the Company merge (the "Merger") into itself
Merger Sub, and assume all of the liabilities and obligations of
Merger Sub; and further
RESOLVED, that, pursuant to the provisions of Section
253(b) of the DGCL, at the effective time of the Merger, the name
of the Company be changed to "PennzEnergy Company"; and further
RESOLVED, that the Merger shall become effective upon
the filing of the Certificate of Ownership and Merger with the
Secretary of State of the State of Delaware (the "Certificate of
Ownership and Merger"), or at such later time as may be set forth
in the Certificate of Ownership and Merger; and further
RESOLVED, that, at any time prior to the time that the
filing of the Certificate of
Ownership and Merger becomes effective, the Board of Directors of
the Company may terminate
the Certificate of Ownership and Merger; and further
RESOLVED, that the Chairman of the Board, the President
or any Vice President of the Company is authorized to make and
execute a Certificate of Ownership and Merger setting forth a
copy of these resolutions, and the date of adoption thereof, and
to cause the same to be filed with the Secretary of State of
Delaware; and further
RESOLVED, that the officers of the Company are
authorized to execute, deliver, file and record such documents,
deeds, certificates and other instruments, in the name and on
behalf of the Company, and to take all such further action to
carry out and effect the Merger and the changes of ownership
effected thereby as they shall consider necessary, desirable or
appropriate.
FIFTH: That the merger of Merger Sub into the Company
and the name change of
the Company effected thereby shall be effective upon the filing
of this Certificate of Ownership and Merger with the Secretary of
State of the State of Delaware.
I, THE UNDERSIGNED, being an authorized officer of the
Company, do make this Certificate, hereby declaring and
certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this
28th day of December 1998.
PENNZOIL COMPANY
By: /s/ Linda F. Condit
Name: Linda F. Condit
Title: Vice President and
Corporate Secretary
CERTIFICATE OF AMENDMENT TO THE
RESTATED CERTIFICATE OF INCORPORATION
PENNZOIL COMPANY, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: Article FIFTH of the corporation's Restated
Certificate of Incorporation is hereby amended by deleting the
first sentence of subparagraph (f) of Section 1 of Article FIFTH
in its entirety and substituting the following sentence therefor:
To designate, by resolution or resolutions passed by a
majority of the whole Board, one or more committees, each
committee to consist of one or more of the Directors of the
corporation, which, to the extent provided in said
resolution or resolutions or in the By-laws of the
corporation, shall have and may exercise the power 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 that may require it.
SECOND: Article FIFTH of the corporation's Restated
Certificate of Incorporation is hereby amended by deleting the
first sentence of Section 2 of Article FIFTH in its entirety and
substituting the following sentence therefor:
The number of Directors which shall constitute the
whole Board of Directors of the corporation shall be not
less than 3 nor more than 13 as specified from time to time
in the By-laws of the corporation, except in the case of an
increase in the number of Directors by reason of any default
provisions contained in Article FOURTH.
THIRD: The foregoing amendments to the corporation's
Restated Certificate of Incorporation have been unanimously
adopted by the corporation's Board of Directors at a meeting duly
called and held on February 29, 1996 and by the holders of a
majority of the outstanding shares of the corporation's capital
stock at a meeting duly called and held on May 9, 1996, all in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate to be executed in its name and on its
behalf by its duly authorized officer and its corporate seal to
be affixed hereto and attested by its Secretary on this 9th day
of May, 1996.
PENNZOIL COMPANY
By: /s/ Thomas M. Hamilton
Thomas M. Hamilton
Executive Vice President
ATTEST:
By: /s/ Linda F. Condit
Linda F. Condit
Corporate Secretary
RESTATED CERTIFICATE OF INCORPORATION
OF
PENNZOIL COMPANY
Under Sections 242 and 245 of the
Delaware General Corporation Law
PENNZOIL COMPANY, a corporation organized and existing
under and by virtue of the Delaware General Corporation Law,
hereby certifies that:
(1) The name of the corporation is Pennzoil Company.
The corporation was, by a Certificate of Agreement of
Consolidation between United Gas Corporation, a corporation
organized and existing under the laws of the State of
Delaware, and Pennzoil Company, a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania,
formed under the name "Pennzoil United, Inc." Such
Certificate of Agreement of Consolidation was filed by the
Secretary of State of the State of Delaware on the 22nd day
of March, 1968.
(2) This Restated Certificate of Incorporation
restates and further amends the Restated Certificate of
Incorporation of the corporation. The amendments effected
by this Restated Certificate of Incorporation include, but
are not limited to, amendments (i) to increase the number of
authorized shares of the corporation's common stock, par
value $0.83 1/3 per share, to 100,000,000 and (ii) to
eliminate obsolete and unnecessary provisions.
(3) The restatement of and further amendments to the
Restated Certificate of Incorporation of the Corporation
have been duly adopted by vote of the stockholders in
accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
(4) The text of the Restated Certificate of
Incorporation of the Pennzoil Company, as heretofore amended
and supplemented, is hereby restated and further amended
hereby to read in its entirety as follows:
RESTATED CERTIFICATE OF INCORPORATION
of
PENNZOIL COMPANY
First: The name of the corporation is Pennzoil Company.
Second: The address of its registered office in the State of
Delaware is 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of its registered agent at such address
is The Corporation Trust Company.
Third: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
Fourth: The total number of shares of all classes of stock
which the corporation shall have authority to issue is
137,610,644, divided into classes as follows:
9,747,720 shares shall be Preferred Stock, par value
$1.00 per share ("Preferred Stock");
27,862,924 shares shall be Preference Common Stock, par
value $0.83 1/3 per share ("Preference Common Stock"); and
100,000,000 shares shall be Common Stock, par value
$0.83 1/3 per share ("Common Stock").
Shares of any class of stock of the corporation may be
issued for such consideration and for such corporate purposes as
the Board of Directors may from time to time determine.
The following is a statement of the powers, preferences and
rights, and the qualifications, limitations or restrictions, of
the Preferred Stock, Preference Common Stock and Common Stock.
Section I. Preferred Stock
Shares of Preferred Stock shall be issuable in one or more
series with such voting powers, full or limited, or no voting
powers, and such designations, powers, preferences and relative,
participating, optional, redemption, conversion, exchange and
other rights, and qualifications, limitations or restrictions
thereof, as are stated and expressed herein, and, to the extent
not stated and expressed herein, as shall be fixed by the Board
of Directors pursuant to the authority to do so, which is hereby
expressly vested in it, and stated and expressed in a resolution
or resolutions adopted by the Board of Directors providing for
the issuance of the Preferred Stock of such series.
In accordance with this Section I of Article Fourth, the
Board of Directors has designated shares of Preferred Stock with
the voting powers, preferences, rights, qualifications,
limitations and restrictions as set forth on Exhibit A hereto.
Section II. Preference Common Stock
Shares of Preference Common Stock shall be issuable in one
or more series with such designations, powers, preferences and
relative, participating, optional, redemption, conversion,
exchange and other rights, and qualifications, limitations or
restrictions thereof, as are stated and expressed herein, and, to
the extent not stated and expressed herein, as shall be fixed by
the Board of Directors pursuant to the authority to do so, which
is hereby expressly vested in it, and stated and expressed in a
resolution or resolutions adopted by the Board of Directors
providing for the issuance of the Preference Common Stock of such
series.
Subject to the prior rights of the holders of Preferred
Stock as may be set forth in a resolution or resolutions
of the Board of Directors providing for the issuance of any
series of Preferred Stock, the holders of Preference Common
Stock, in preference to the holders of Common Stock, shall be
entitled to receive if, as and when declared by the Board of
Directors, out of the assets of the corporation which are by law
available for the payment of dividends, dividends at but not
exceeding the rate set forth in a resolution or resolutions of
the Board of Directors providing for the issuance of any series
of Preference Common Stock.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the corporation,
then, before any distribution may be made to the holders of
Common Stock, the holders of Preference Common Stock (subject to
the prior rights of holders of Preferred Stock as may be set
forth in a resolution or resolutions of the Board of Directors
providing for the issuance of any series of Preferred Stock)
shall be entitled to be paid an amount equal to the accrued and
unpaid dividends thereon to the date of payment thereof. After
payment or provision for payment of the debts and other
liabilities of the corporation and any accrued and unpaid
dividends due the holders of Preference Common Stock (subject to
the prior rights of holders of Preferred Stock as may be set
forth in a resolution or resolutions of the Board of Directors
providing for the issuance of any series of Preferred Stock), the
holders of Preference Common Stock and Common Stock shall be
entitled to share ratably in the remaining assets of the
corporation. Neither the merger or consolidation of the
corporation into or with another corporation nor the merger or
consolidation of any other corporation into or with the
corporation shall be deemed to be a liquidation, dissolution or
winding up of the corporation within the meaning of this
paragraph, but the sale, lease or conveyance of all or
substantially all of the assets of the corporation shall be
deemed to be a liquidation, dissolution or winding up of the
corporation within the meaning of this paragraph.
In addition to any other voting powers of the holders of
Preference Common Stock as may be provided by law, (i) without
the affirmative vote of the holders of at least a majority of the
total number of shares of Preference Common Stock at the time
outstanding, the corporation shall not merge or consolidate with
or into any other corporation or sell or otherwise dispose of all
or substantially all of its assets (provided, however, that no
such vote shall be required in connection with a merger into the
corporation of a subsidiary at least 90% of the outstanding
shares of each class of stock of which is owned by the
corporation), (ii) without the affirmative vote of the holders of
at least two-thirds of the total number of shares of Preference
Common Stock at the time outstanding, the corporation shall not
voluntarily liquidate, dissolve or wind up the affairs of the
corporation, (iii) without the affirmative vote of the holders of
at least two-thirds of the total number of shares of Preference
Common Stock at the time outstanding, the corporation shall not
amend, alter or repeal any of the rights, preferences or powers
of the holders of Preference Common Stock so as to affect
adversely any such rights, preferences or powers (provided,
however, that if such amendment, alteration or repeal affects
adversely the rights, preferences or powers of one or more, but
not all, series of Preference Common Stock at the time
outstanding, only the affirmative vote of the holders of at least
two-thirds of the total number of outstanding shares of all
series so affected shall be required; and provided, further, that
an amendment to increase or decrease the authorized number of
shares of Preference Common Stock or to create or authorize, or
increase or decrease the amount of, any class of stock ranking
prior to or on a parity with the outstanding shares of Preference
Common Stock as to dividends shall not be deemed to affect
adversely the rights, preferences or powers of the holders of
Preference Common Stock or any series thereof) and (iv) without
the affirmative vote of the holders of at least two-thirds of the
total number of shares of Preference Common Stock at the time
outstanding, the corporation shall not create or authorize any
shares of any class of stock ranking prior to the Preference
Common Stock as to dividends or assets (other than Preferred
Stock) or issue any shares of any such prior ranking stock (other
than Preferred Stock) more than 12 months after the date as of
which the corporation was empowered to create or authorize such
prior ranking stock.
Section III. Common Stock
After the requirements with respect to any preferential
dividends upon the Preferred Stock and Preference Common Stock
have been met, the holders of the Common Stock shall be entitled
to receive such dividends as may be declared from time to time by
the Board of Directors.
Section IV. Provisions Applicable to Capital Stock
1. Voting Rights. Each share of Common Stock and each
share of Preference Common Stock shall entitle the holder thereof
to one vote for each share held and, except as otherwise provided
herein or by law, the Common Stock and the Preference Common
Stock (and any other stock of the corporation at the time
entitled to vote) shall vote together as one class. At all
elections of directors, each holder of record of shares of Common
Stock and/or Preference Common Stock shall be entitled to as many
votes as shall equal the number of such shares of Common Stock
and/or Preference Common Stock so held multiplied by the number
of directors to be elected, and such holder may cast all of such
votes for a single director, or may distribute them among the
number to be voted for, or for any two or more of them, as such
holder may see fit.
2. Regarding Pre-emptive Rights. No stockholder of the
corporation shall by reason of his holding shares of any class of
stock have any pre-emptive or preferential right to subscribe
for, purchase or otherwise acquire or receive any shares of any
class of stock issued by the corporation, whether now or
hereafter authorized, or any shares of any class of stock of the
corporation now or hereafter acquired by the corporation as
treasury stock and subsequently reissued or sold or otherwise
disposed of, or any notes, debentures, bonds or other securities
convertible into or carrying options or warrants to purchase
shares of any class of stock, whether now or hereafter
authorized, whether or not the issuance of any such shares, or
such notes, debentures, bonds or other securities, would
adversely affect the dividend or voting rights of such
stockholder; and the Board of Directors may issue shares of any
class of stock of the corporation, or any notes, debentures,
bonds or other securities convertible into or carrying options or
warrants to purchase shares of any class of stock, without
offering any such shares of any class, either in whole or in
part, to the existing stockholders of any class.
Fifth: 1. All corporate powers shall be exercised by the
Board of Directors except as otherwise provided by law or by the
Certificate of Incorporation.
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
(a) Except as may be otherwise provided in the By-laws,
to make, alter, amend and repeal the By-laws of the
corporation, subject always to the power of the stockholders
to change such action.
(b) To fix in or pursuant to the By-laws from time to
time the number of Directors of the corporation, none of
whom need be stockholders.
(c) To fix, determine and vary from time to time the
amount to be maintained as surplus of the corporation and
the amount or amounts to be set apart as working capital of
the corporation.
(d) To authorize and cause to be executed mortgages and
liens upon the real and personal property of the
corporation.
(e) To set apart out of any of the funds of the
corporation available for dividends a reserve or reserves
for any proper purposes and/or to abolish any such reserve
in the manner in which it was created.
(f) To designate, by resolution or resolutions passed
by a majority of the whole Board, one or more committees,
each committee to consist of two or more of the Directors of
the corporation, which, to the extent provided in said
resolution or resolutions or in the By-laws of the
corporation, shall have and may exercise the power 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. Such committee or committees shall have such
name or names as may be stated in the By-laws of the
corporation or as may be determined from time to time by
resolutions adopted by the Board of Directors.
2. The number of Directors which shall constitute the whole
Board of Directors of the corporation shall be not less than 3
nor more than 18 as specified from time to time in the By-laws of
the corporation, except in the case of an increase in the number
of directors by reason of any default provisions adopted pursuant
to Article Fourth. The Board of Directors shall be divided into
three classes, Class I, Class II and Class III. Such classes
shall be as nearly equal in number of directors as possible.
Each Director shall serve for a term ending on the third annual
meeting following the annual meeting at which such Director was
elected. The foregoing notwithstanding, each Director shall
serve until his successor shall have been duly elected and
qualified, unless he shall resign, become disqualified, disabled
or shall otherwise be removed.
At each annual election, the Directors chosen to succeed
those whose terms then expire shall be of the same class as the
Directors they succeed, unless, by reason of any intervening
changes in the authorized number of Directors, the Board shall
designate one or more directorships whose term then expires as
directorships of another class in order more nearly to achieve
equality of number of Directors among the classes.
Notwithstanding the provision that the three classes shall
be as nearly equal in number of Directors as possible, in the
event of any change in the authorized number of Directors, each
Director then continuing to serve as such shall nevertheless
continue as a Director of the class of which he is a member until
the expiration of his current term, or his prior death,
resignation or removal. If any newly created directorship may,
consistent with the provision that the three classes shall be as
nearly equal in number of Directors as possible, be allocated to
one or two or more classes, the Board shall allocate it to that
of the available classes whose terms of office are due to expire
at the earliest date following such allocation.
3. No Director of the corporation shall be removed from his
office as a Director by vote or other action of stockholders or
otherwise except for cause.
4. Except as provided in or pursuant to Article Fourth
hereof, newly created directorships resulting from any increase
in the number of Directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification,
removal or other cause shall be filled by the affirmative vote of
a majority of the remaining Directors then in office, even though
less than a quorum of the Board of Directors. Any Director
elected in accordance with the preceding sentence shall hold
office for the remainder of the full term of the class of
Directors in which the new directorship was created or the
vacancy occurred and until such Director's successor shall have
been elected and qualified. No decrease in the number of
Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
5. No contract or other transaction between the corporation
and any other corporation shall be affected or invalidated by the
fact that one or more of the Directors of the corporation are
interested in, or is a director or directors or officer or
officers of such other corporation, and no contract or other
transaction between the corporation and any other person or firm
shall be affected or invalidated by the fact that one or more of
the Directors of the corporation is a party to, or are parties
to, or interested in, such contract or transaction; provided that
in each such case the nature and extent of the interest of such
Director or Directors in such contract or other transaction
and/or the fact that such Director or Directors is or are a
director or directors or officer or officers of such other
corporation is known to the Board of Directors or is disclosed at
the meeting of the Board of Directors at which such contract or
other transaction is authorized.
Sixth: 1. Except as set forth in Paragraph 4 of this
Article Sixth, the affirmative vote or consent of the holders of
80% of all stock of this corporation entitled to vote in
elections of directors (excluding stock entitled so to be
exercised only upon the happening of some contingency unless such
contingency shall have occurred and is continuing), considered
for the purposes of this Article Sixth as one class and
hereinafter in this Article Sixth embraced in the term "voting
stock", shall be required:
(i) for a merger or consolidation of the corporation
with or into any other corporation, or
(ii) for any sale or lease of all or any substantial
part of the assets of the corporation to any other
corporation, person or other entity, or
(iii) any sale or lease to the corporation or any
subsidiary thereof of any assets (except assets having an
aggregate fair market value of less than $5,000,000) in
exchange for voting stock (or securities convertible into or
exchangeable for voting stock or options, warrants or rights
to purchase voting stock or securities convertible into
voting stock) of the corporation or any subsidiary of the
corporation by any other corporation, person or entity,
if as of the record date for the determination of stockholders
entitled to notice thereof and to vote thereon or consent
thereto, or as of the time the Board of Directors shall have
approved a memorandum of understanding, or the corporation shall
have entered into any agreement, with respect to any such
transaction for which the vote or consent of the holders of no
class or series of stock of the corporation is otherwise required
by law, the Certificate of Incorporation or any other contract or
agreement, such other corporation, person or entity which is
party to such a transaction is the beneficial owner, directly or
indirectly, of 5% or more of the outstanding shares of any class
or series of voting stock of the corporation. There shall also
be required for any such transaction for which such affirmative
vote or consent shall be required by this Paragraph 1 the
affirmative vote or consent of the holders of a majority of all
voting stock of this corporation, exclusive of all voting stock
of this corporation of which such other corporation, person or
entity which is party to such transaction is, directly or
indirectly, the beneficial owner. Each such affirmative vote or
consent shall be in addition to the vote or consent of the
holders of any class or series of stock of the corporation
otherwise required by law or the Certificate of Incorporation or
the resolution or resolutions providing for the issuance of such
class or series which have been adopted by the Board of Directors
or any agreement between the corporation and any national
securities exchange.
2. For purposes of this Article Sixth any corporation,
person or other entity shall be deemed to be the beneficial owner
of any shares of stock of the corporation:
(i) which it owns directly, whether or not of record,
or
(ii) which it has the right to acquire pursuant to any
agreement or understanding or upon exercise of conversion
rights, exchange rights, warrants or options or otherwise,
or
(iii) which are beneficially owned, directly or
indirectly (including shares deemed to be owned through
application of clause (ii) above), by any "affiliate" or
"associate" as those terms are defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange
Act of 1934 as in effect on March 1, 1975, or
(iv) which are beneficially owned, directly or
indirectly (including shares deemed owned through
application of clause (ii) above), by any other corporation,
person or entity with which it or its "affiliate" or
"associate" has any agreement or arrangement or
understanding for the purpose of acquiring, holding, voting
or disposing of stock of the corporation.
For the purposes of this Article Sixth, the outstanding
shares of any class or series of stock of the corporation
shall include shares deemed owned through the application of
clauses (2)(ii), (iii) and (iv) above, but shall not include
any other shares which may be issuable pursuant to any
agreement or upon exercise of conversion rights, warrants,
options or otherwise. As used in this Article Sixth, the
term "subsidiary" shall mean a corporation a majority of the
voting power of the capital stock (that is, voting power
entitled to be exercised in the election of directors, but
excluding voting power entitled so to be exercised only upon
the happening of some contingency unless such contingency
shall have occurred and is continuing) of which shall be
owned by the corporation or by one or more subsidiaries or
by the corporation and one or more subsidiaries.
3. The Board of Directors shall have the power and duty to
determine for the purposes of this Article Sixth
on the basis of information known to this corporation whether
(i) such other corporation, person or other entity
beneficially owns 5% or more of the outstanding shares of
any class or series of voting stock of the corporation,
(ii) a corporation, person or entity is an "affiliate"
or "associate" (as defined in Paragraph 2 above) of another,
(iii) the assets being acquired by the corporation, or
any subsidiary thereof, have an aggregate fair market value
of less than $5,000,000, and
(iv) the memorandum of understanding referred to in
Paragraph 4 below is substantially consistent with the
transaction covered thereby.
Any such determination shall be conclusive and binding for
all purposes of this Article Sixth.
4. The provisions of Paragraph 1 of this Article Sixth
shall not apply to:
(i) any merger or consolidation of this corporation
with any corporation, or any sale or lease to this
corporation or any subsidiary thereof of any assets of, or
any sale or lease by this corporation or any subsidiary
thereof of any of its assets to, any corporation, person or
entity, if the Board of Directors of this corporation has
approved a memorandum of understanding with such other
corporation, person or entity with respect to such
transaction prior to the time that such other corporation,
person or entity shall have become a beneficial owner of 5%
or more of the outstanding shares of any class or series of
voting stock of the corporation; or
(ii) any merger or consolidation of this corporation
with, or any sale or lease to this corporation or any
subsidiary thereof of any assets of, or any sale or lease by
this corporation or any subsidiary thereof of any of its
assets to, any corporation 40% or more of the outstanding
voting stock of which is beneficially owned, directly or
indirectly, by this corporation.
5. The corporation shall have the right, subject to any
express provisions or restrictions contained in the Certificate
of Incorporation or the By-laws, from time to time to amend the
Certificate of Incorporation or any provision thereof in any
manner now or hereafter provided by law, and all rights and
powers at any time conferred upon the Directors or stockholders
of the corporation by the Certificate of Incorporation or any
amendment thereof are subject to such right of the corporation.
6. Notwithstanding any other provision of this Certificate
of Incorporation or the By-laws (and in addition to any other
vote that may be required by law, this Certificate of
Incorporation or the By-laws), there shall be required to amend,
alter, change or repeal, directly or indirectly, this Article
Sixth the affirmative vote or consent of (i) the holders of 80%
of all voting stock of the corporation (considered for this
purpose as one class) and (ii) the holders of a majority of all
voting stock of the corporation (considered for this purpose as
one class), exclusive of all voting stock of the corporation
beneficially owned, directly or indirectly, by any corporation,
person or entity which is, as of the record date for the
determination of stockholders entitled to notice of such
amendment, alteration, change or repeal and to vote thereon or
consent thereto, the beneficial owner of 5% or more of the
outstanding shares of any class or series of voting stock of the
corporation.
Seventh: No action required to be taken or which may be
taken at any annual or special meeting of stockholders of the
corporation may be taken without a meeting, and the power of
stockholders to consent in writing
to the taking of any action is specifically denied.
Eighth: No director of the corporation shall be personally
liable to the corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a director involving any
act or omission of any such director occurring on or after April
30, 1987; provided, however, that the foregoing provision shall
not eliminate or limit the liability of a director (a) for any
breach of such director's duty of loyalty to the corporation or
its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violation of law,
(c) under Title 8, Section 174 of the General Corporation Law of
the State of Delaware or (d) for any transaction from which such
director derived an improper personal benefit. Any repeal or
modification of this Article Eighth by the stockholders of the
corporation shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of
the corporation existing at the time of such repeal or
modification.
________________________________
(5) This Certificate shall become effective upon the
filing hereof in the office of the Secretary of State of the
State of Delaware.
IN WITNESS WHEREOF, Pennzoil Company has caused this
Restated Certificate of Incorporation to be signed by its
authorized officer this 3rd day of May, 1995.
PENNZOIL COMPANY
By: /s/ David P. Alderson, II
David P. Alderson, II
Group Vice President - Finance
EXHIBIT A
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
PENNZOIL COMPANY
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
PENNZOIL COMPANY, a corporation organized and existing under
the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 103 thereof, DOES
HEREBY CERTIFY:
That pursuant to the authority vested in the Board of
Directors in accordance with the provisions of the Restated
Certificate of Incorporation of the said Corporation, the said
Board of Directors on October 28, 1994 adopted the following
resolution creating a series of 750,000 shares of Preferred Stock
designated as "Series A Junior Participating Preferred Stock":
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with
the provisions of the Restated Certificate of Incorporation,
a series of Preferred Stock, par value $1.00 per share, of
the Corporation be and hereby is created, and that the
designation and number of shares thereof and the voting and
other powers, preferences and relative, participating,
optional or other rights of the shares of such series and
the qualifications, limitations and restrictions thereof are
as follows:
Series A Junior Participating Preferred Stock
1. Designation and Amount. There shall be a series of
Preferred Stock that shall be designated as "Series A Junior
Participating 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, however, that no decrease shall reduce the
number of shares of Series A Junior Participating Preferred Stock
to less than the number of shares then issued and outstanding
plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding
securities issued by the Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders
of any shares of any series of Preferred Stock ranking prior and
superior to the shares of Series A Junior Participating Preferred
Stock with respect to dividends, the holders of shares of Series
A Junior Participating Preferred Stock, in preference to the
holders of shares of any class or series of stock of the
Corporation ranking junior to the Series A Junior Participating
Preferred Stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the 15th
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 Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $2.00 or (b) the Adjustment Number (as defined
below) times the aggregate per share amount of all cash
dividends, and the Adjustment Number 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,
par value $0.83 1/3 per share, of the Corporation (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 Junior Participating Preferred Stock. The
"Adjustment Number" shall initially be 100. In the event the
Corporation shall at any time after October 28, 1994 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment 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) The Corporation shall declare a dividend or distribution
on the Series A Junior Participating Preferred Stock as provided
in paragraph (A) above 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 $2.00 per share on the Series A Junior
Participating 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 Junior Participating Preferred
Stock from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares of Series A Junior Participating
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
Junior Participating 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 Junior Participating
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 Junior Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the date fixed
for the payment thereof.
3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting
rights:
(A) Each share of Series A Junior Participating Preferred
Stock shall entitle the holder thereof to a number of votes equal
to the Adjustment Number on all matters submitted to a vote of
the stockholders of the Corporation. At all elections of
directors at which the Series A Junior Participating Preferred
Stock shall vote together with the Common Stock (and any other
capital stock of the Corporation at the time entitled thereto),
each share of Series A Participating Preferred Stock shall
entitle the holder thereof to as many votes as shall equal the
Adjustment Number multiplied by the number of directors to be
elected, and such holder may cast all of such votes for a single
director, or may distribute them among the number to be voted
for, or for any two or more of them, as such holder may see fit.
(B) Except as otherwise provided herein, in the Restated
Certificate of Incorporation or by law, the holders of shares of
Series A Junior Participating Preferred Stock, the holders of
shares of Preference Common Stock, par value $0.83 1/3 per share,
of the Corporation ("Preference Common 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 at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount
equal to six quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a
"default period") that shall extend until such time when all
accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all
shares of Series A Junior Participating Preferred Stock then
outstanding shall have been declared and paid or set apart for
payment. During each default period, (1) the number of Directors
shall be increased by two, effective as of the time of election
of such Directors as herein provided, and (2) the holders of
Preferred Stock (including holders of the Series A Junior
Participating Preferred Stock) upon which these or like voting
rights have been conferred and are exercisable (the "Voting
Preferred Stock") with dividends in arrears in an amount equal to
six quarterly dividends thereon, voting as a class, irrespective
of series, shall have the right to elect such two Directors.
(ii) During any default period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be
exercised initially at a special meeting called pursuant to
subparagraph (iii) of this Section 3(C) or at any annual meeting
of stockholders, and thereafter at annual meetings of
stockholders, provided that such voting right shall not be
exercised unless the holders of at least one-third in number of
the shares of Voting Preferred Stock outstanding shall be present
in person or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the holders of
Voting Preferred Stock of such voting right.
(iii) Unless the holders of Voting Preferred Stock shall,
during an existing default period, have previously exercised
their right to elect Directors, the Board of Directors may order,
or any stockholder or stockholders owning in the aggregate not
less than ten percent of the total number of shares of Voting
Preferred Stock outstanding, irrespective of series, may request,
the calling of a special meeting of the holders of Voting
Preferred Stock, which meeting shall thereupon be called by the
Chairman of the Board, the President, a Vice President or the
Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Voting Preferred Stock are
entitled to vote pursuant to this paragraph (C)(iii) shall be
given to each holder of record of Voting Preferred Stock by
mailing a copy of such notice to him at his last address as the
same appears on the books of the Corporation. Such meeting shall
be called for a time not earlier than 20 days and not later than
60 days after such order or request or, in default of the calling
of such meeting within 60 days after such order or request, such
meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent of
the total number of shares of Voting Preferred Stock outstanding.
Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual
meeting of the stockholders.
(iv) In any default period and after the holders of Voting
Preferred Stock shall have exercised their right to elect
Directors voting as a class, (x) the Directors so elected by the
holders of Voting Preferred Stock shall continue in office until
their successors shall have been elected by such holders or until
the expiration of the default period, and (y) any vacancy in the
Board of Directors may be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the
class or classes of stock which elected the Director whose office
shall have become vacant. References in this paragraph (C) to
Directors elected by the holders of a particular class or classes
of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Voting Preferred Stock as a class to
elect Directors shall cease, (y) the term of any Directors
elected by the holders of Voting Preferred Stock as a class shall
terminate and (z) the number of Directors shall be such number as
may be provided for in the Restated Certificate of Incorporation
or By-Laws irrespective of any increase made pursuant to the
provisions of paragraph (C) of this Section 3 (such number being
subject, however, to change thereafter in any manner provided by
law or in the Restated Certificate of Incorporation or By-Laws).
Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may
be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special
voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
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
Junior Participating Preferred Stock outstanding shall have been
paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on 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 Junior Participating Preferred Stock, except
dividends paid ratably on the Series A Junior Participating
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; or
(iii) redeem or purchase or otherwise acquire for
consideration any shares of Series A Junior Participating
Preferred Stock, or any shares of stock ranking on a parity with
the Series A Junior Participating 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 Series A Junior Participating Preferred Stock, or to
such holders and holders of any such shares ranking on a parity
therewith, 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 Junior
Participating 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 to be created by resolution or
resolutions of the Board of Directors, subject to any conditions
and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up
of the Corporation, 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 Junior
Participating Preferred Stock unless, prior thereto, the holders
of shares of Series A Junior Participating 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 A 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 Junior
Participating Preferred Stock unless, prior thereto, the holders
of shares of Common Stock and Preference Common Stock shall have
received an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) the Adjustment Number. Following the payment
of the full amount of the Series A Liquidation Preference and the
Common Adjustment in respect of all outstanding shares of (1)
Series A Junior Participating Preferred Stock and (2) Common
Stock and Preference Common Stock, respectively, (a) holders of
Series A Junior Participating Preferred Stock and (b) holders of
shares of Common Stock and Preference Common Stock shall, subject
to the prior rights of all other series of Preferred Stock, if
any, ranking prior thereto, 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 (x) the
Series A Junior Participating Preferred Stock and (y) the Common
Stock and Preference 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, that rank on a parity
with the Series A Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of
such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock and Preference
Common Stock.
(C) Neither the merger or consolidation of the Corporation
into or with another corporation nor the merger or consolidation
of any other corporation into or with the Corporation shall be
deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this Section 6, but the sale,
lease or conveyance of all or substantially all the Corporation's
assets shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section
6.
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 Junior
Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share equal to the
Adjustment Number 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.
8. Redemption. (A) The Corporation, at its option, may
redeem shares of the Series A Junior Participating Preferred
Stock in whole at any time and in part from time to time, at a
redemption price equal to the Adjustment Number times the current
per share market price (as such term is hereinafter defined) of
the Common Stock on the date of the mailing of the notice of
redemption, together with unpaid accumulated dividends to the
date of such redemption. The "current per share market price" on
any date shall be deemed to be the average of the closing price
per share of such Common Stock for the ten consecutive Trading
Days (as such term is hereinafter defined) immediately prior to
such date; provided, however, that in the event that the current
per share market price of the Common Stock is determined during a
period following the announcement of (i) a dividend or
distribution on the Common Stock other than a regular quarterly
cash dividend or (ii) any subdivision, combination or
reclassification of such Common Stock and the ex-dividend date
for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, shall not have
occurred prior to the commencement of such ten Trading Day
period, then, and in each such case, the current per share market
price shall be properly adjusted to take into account ex-dividend
trading. The closing price for each day shall be the last sales
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal transaction
reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange, or, if the Common Stock
is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or, if the
Common Stock is not listed or admitted to trading on any national
securities exchange but sales price information is reported for
such security, as reported by the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other self-regulatory organization or registered
securities information processor (as such terms are used under
the Securities Exchange Act of 1934, as amended) that then
reports information concerning the Common Stock, or, if sales
price information is not so reported, the average of the high bid
and low asked prices in the over-the-counter market on such day,
as reported by NASDAQ or such other entity, or, if on any such
date the Common Stock is not quoted by any such entity, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock
selected by the Board of Directors of the Corporation. If on any
such date no such market maker is making a market in the Common
Stock, the fair value of the Common Stock on such date as
determined in good faith by the Board of Directors of the
Corporation shall be used. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which
the Common Stock is listed or admitted to trading is open for the
transaction of business, or, if the Common Stock is not listed or
admitted to trading on any national securities exchange but is
quoted by NASDAQ, a day on which NASDAQ reports trades, or, if
the Common Stock is not so quoted, a Monday, Tuesday, Wednesday,
Thursday or Friday on which banking institutions in the State of
New York are not authorized or obligated by law or executive
order to close.
(B) In the event that fewer than all the outstanding shares
of the Series A Junior Participating Preferred Stock are to be
redeemed, the number of shares to be redeemed shall be determined
by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board
of Directors or by any other method that may be determined by the
Board of Directors in its sole discretion to be equitable.
(C) Notice of any such redemption shall be given by mailing
to the holders of the shares of Series A Junior Participating
Preferred Stock to be redeemed a notice of such redemption, first
class postage prepaid, not later than the fifteenth day and not
earlier than the sixtieth day before the date fixed for
redemption, at their last address as the same shall appear upon
the books of the Corporation. Each such notice shall state: (i)
the redemption date; (ii) the number of shares to be redeemed
and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places
where certificates for such shares are to be surrendered for
payment of the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on the close of
business on such redemption date. Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the stockholder received such
notice, and failure duly to give such notice by mail, or any
defect in such notice, to any holder of Series A Junior
Participating Preferred Stock shall not affect the validity of
the proceedings for the redemption of any other shares of Series
A Junior Participating Preferred Stock that are to be redeemed.
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 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.
If fewer than all the shares represented by any such surrendered
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares.
(D) The shares of Series A Junior Participating Preferred
Stock shall not be subject to the operation of any purchase,
retirement or sinking fund.
9. Ranking. The Series A Junior Participating 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, unless the terms of any such series shall
provide otherwise, and shall rank senior to the Common Stock and
Preference Common Stock as to such matters.
10. Amendment. At any time that any shares of Series A
Junior Participating Preferred Stock are outstanding, the
Restated Certificate of Incorporation of the Corporation shall
not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A
Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share that shall
entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate
in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.