EXHIBIT 1
RESTATED
CERTIFICATE OF INCORPORATION
of
REYNOLDS METALS COMPANY
___________
INTRODUCTION
This Restated Certificate of Incorporation has been duly adopted
by the Board of Directors of Reynolds Metals Company in accordance with
Section 245 of the General Corporation Law of the State of Delaware. It only
restates and integrates, and does not further amend, the provisions of the
corporation's Certificate of Incorporation as heretofore amended or
supplemented, and there is no discrepancy between those provisions and this
Restated Certificate of Incorporation. The corporation's original Certificate
of Incorporation was filed with the Delaware Secretary of State on July 18,
1928.
ARTICLE I
The name of the corporation is
REYNOLDS METALS COMPANY
ARTICLE II
Its registered office in the State of Delaware is located at
1013 Centre Road, in the City of Wilmington, County of New Castle, Delaware.
The name and address of its registered agent is CORPORATION SERVICE COMPANY, a
corporation of the State of Delaware, located at 1013 Centre Road, Wilmington,
New Castle County, Delaware.
ARTICLE III
The nature of the business and the objects and purposes proposed
to be transacted, promoted or carried on are:
1. To manufacture, purchase, or otherwise acquire, hold, own,
mortgage, pledge, sell, lease, assign and transfer, or otherwise dispose of,
to invest, trade, deal in and deal with, goods, wares and merchandise and real
and personal property of every class and description.
2. To erect, or cause to be erected, on any lands owned, held,
and occupied by the corporation, buildings or other structures with their
appurtenances and to rebuild, enlarge, alter, or improve any buildings or
other structures now, or hereafter erected, on any lands so owned, held, or
occupied.
3. To enter into, make and perform contracts of every kind for
any lawful purpose with any person, firm, association or corporation,
municipality, body politic, country, territory, State, government or colony or
dependency thereof.
4. To acquire the goodwill, rights and property 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; to
pay for the said goodwill, rights, property, and assets in cash, the stock of
this company, bonds or otherwise, or by undertaking the whole or any part of
the liabilities of the transferor; to hold or in any manner to dispose of the
whole or any part of the property so purchased; to conduct in any lawful
manner 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.
5. To apply for, purchase, register or in any manner to
acquire, and to hold, own, use, operate and introduce, and to sell, lease,
assign, pledge, or in any manner dispose of, and in any manner deal with
patents, patent rights, licenses, copyrights, trademarks, trade names, and to
acquire, own, use or in any manner dispose of any and all inventions,
improvements and processes, labels, designs, brands, or other rights, and to
work, operate, or develop the same, and to carry on any business,
manufacturing or otherwise, which may directly or indirectly effectuate these
objects or any of them.
6. To guarantee, purchase, receive, hold, own, sell, assign,
transfer, mortgage, pledge or otherwise dispose of shares of capital stock,
bonds, mortgages, debentures, notes or other securities, obligations,
contracts or evidences of indebtedness of any corporation, company or
association (organized under the laws of this State or any other State,
country, nation or government) or of any state, country, nation, municipality,
government or a body politic; to receive, collect and dispose of interest,
dividends and income upon, of and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held or owned by it
and to exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences of
indebtedness and other property any and all rights, powers and privileges of
individual ownership thereof, including the right to vote thereon.
7. Without limit as to amount to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable instruments
and evidences of indebtedness whether secured by mortgage or otherwise, as
well as to secure the same by mortgage or otherwise, so far as may be
permitted by the laws of the State of Delaware.
8. To purchase, in so far as the same may be done without
impairing the capital of the corporation, and to hold, pledge and reissue
shares of its own capital stock; but such stock, so acquired and held, shall
not be entitled to vote nor to receive dividends.
9. To have one or more offices, conduct its business and
promote its objects within and without the State of Delaware, in other States,
the District of Columbia, the territories, colonies and dependencies of the
United States, and in foreign countries, without restriction as to place or
amount, but subject to the laws of such State, District, territory, colony,
dependency or country.
10. To do any or all of the things herein set forth to the same
extent as natural persons might or could do and in any part of the world, as
principals, agents, contractors, trustees, or otherwise, and either alone or
in company with others.
11. In general to carry on any other business in connection
therewith, whether manufacturing or otherwise, not forbidden by the laws of
the State of Delaware, and with all the powers conferred upon corporations by
the laws of the State of Delaware.
But if this corporation shall undertake to do any of the things
hereinabove set forth in any State other than Delaware, in the District of
Columbia, in any territory, colony, or dependency of the United States, or in
any foreign country or in any colony or dependency thereof, then as to such
jurisdictions and each of them this corporation shall be deemed to have such
powers in so far only as such jurisdictions respectively permit corporations
within their several respective jurisdictions to be organized for or to
execute such powers.
It is the intention that each of the objects, purposes and
powers specified in each of the paragraphs of this third article of this
Certificate of Incorporation shall, except where otherwise specified, be
nowise limited or restricted by reference to or inference from the terms of
any other paragraph or of any other article in this Certificate of
Incorporation, but that the objects, purposes and powers specified in this
article and in each of the articles or paragraphs of this Certificate shall be
regarded as independent objects, purposes and powers, and the enumeration of
specific purposes and powers shall not be construed to restrict in any manner
the general terms and powers of this corporation, nor shall the expression of
one thing be deemed to exclude another, although it be of like nature.
ARTICLE IV
The total number of shares of stock of all classes that may be
issued by the Corporation is Two Hundred Twenty-one Million (221,000,000)
shares, of which Twenty Million (20,000,000) shares shall be preferred stock
without par value and shall be designated "Preferred Stock", One Million
(1,000,000) shares shall be second preferred stock of the par value of One
Hundred Dollars ($100.00) each and shall be designated "Second Preferred
Stock" and Two Hundred Million (200,000,000) shares shall be common stock
without par value and shall be designated "Common Stock".
I. PREFERRED STOCK
1. The Preferred Stock may be issued in one or more series,
from time to time, with each such series to have such designation, powers,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issue of such
series adopted by the Board of Directors of the Corporation (referred to
herein as the "Issuing Resolution" for such series), subject to the
limitations prescribed by law and in accordance with the provisions hereof,
the Board of Directors being hereby expressly vested with authority to adopt
any such resolution or resolutions.
2. The authority of the Board of Directors with respect to
each series of the Preferred Stock shall include, but not be limited to, the
determination or fixing of the following:
(a) The distinctive designation and number of shares
comprising such series, which number may (except where otherwise
provided by the Board of Directors in creating such series) be
increased or decreased (but not below the number of shares then
outstanding) from time to time by like action of the Board of
Directors;
(b) The dividend rate of such series, the conditions upon
which and times at which such dividends shall be payable, the
relation which such dividends shall bear to the dividends
payable on any other series of the Preferred Stock, and whether
such dividends shall be cumulative or noncumulative;
(c) The conditions, if any, upon which the shares of such
series shall be subject to redemption by the Corporation and the
times, prices and other terms and provisions upon which the
shares of the series may be redeemed;
(d) Whether or not the shares of the series shall be
subject to the operation of a retirement or sinking fund to be
applied to the purchase or redemption of such shares and, if
such retirement or sinking fund be established, the annual
amount thereof and the terms and provisions governing the
operation of such retirement or sinking fund;
(e) Whether or not the shares of the series shall be
convertible into or exchangeable for shares of any other class
or classes, with or without par value, or of any other series of
the same class, and, if provision is made for conversion or
exchange, the times, prices, rates, adjustments, and other terms
and conditions of such conversion or exchange;
(f) Whether or not the shares of the series shall have
voting rights, in addition to the voting rights provided by law,
and, if so, the terms of such voting rights;
(g) The rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up
of the Corporation;
(h) The relative seniority, parity or junior rank of such
series with respect to any other series of the Preferred Stock;
and
(i) Any other powers, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of the
shares of such series, as the Board of Directors may deem
advisable and as shall not be inconsistent with the provisions
of this Certificate of Incorporation.
3. No holder of shares of any series of the Preferred Stock
shall have any preemptive or preferential right of subscription to any stock
of any class of the Corporation, or to any obligations convertible into stock
of any class, or to any warrant or option for the purchase of stock of any
class, except to the extent granted in the Issuing Resolution creating such
series.
4. The Board of Directors of the Corporation shall be
empowered to provide in any Issuing Resolution with respect to any series of
the Preferred Stock that any of the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of such series may be
made dependent upon facts ascertainable outside this Certificate of
Incorporation or any amendment hereto, or the Issuing Resolution with respect
to such series, so long as the manner in which such facts shall operate upon
the voting powers, designations, preferences, rights and qualifications,
limitations or restrictions of such series is clearly and expressly set forth
in this Certification of Incorporation, as amended, or in the Issuing
Resolution for such series.
5. The holders of shares of the Preferred Stock of each series
shall be entitled to receive, when and as declared by the Board of Directors,
out of funds legally available for the payment of dividends, dividends at the
rate fixed by the Board of Directors in the Issuing Resolution for such
series, and no more, before
(i) any dividends (other than dividends payable in Second
Preferred Stock or in Common Stock or in any other class of stock ranking
junior to the Preferred Stock both as to dividends and upon liquidation,
dissolution or winding up) shall be declared and paid, or set apart for
payment, on, or
(ii) any moneys or other consideration (other than shares
of Second Preferred Stock or Common Stock or any other class of
stock ranking junior to the Preferred Stock both as to dividends
and upon liquidation, dissolution or winding up) is set aside
for or applied to the purchase or redemption of,
shares of the Second Preferred Stock or the Common Stock or any other class of
stock ranking junior to the Preferred Stock as to dividends or upon
liquidation, dissolution or winding up.
6. The holders of shares of the Preferred Stock of each series
shall be entitled upon liquidation, dissolution or winding up of the
Corporation, whether involuntary or voluntary, to such preferences as are
provided in the Issuing Resolution creating such series of the Preferred
Stock, and no more, before any distribution of the assets of the Corporation
shall be made to or set apart for the holders of shares of the Second
Preferred Stock or the Common Stock or any other class of stock ranking junior
to the Preferred Stock upon liquidation, dissolution or winding up. For the
purposes of this paragraph 6, a consolidation or merger of the Corporation
with or into one or more other corporations (whether or not the Corporation is
the corporation surviving such consolidation or merger), or a sale, lease or
exchange of all or substantially all of the assets of the Corporation, shall
not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. The distinctive designation
of the series shall be "Series A Junior Participating Preferred Stock." The
shares constituting such series shall be without par value. The number of
shares constituting such series shall be 2,000,000, subject to increase or
decrease by action of the Board of Directors as evidenced by a certificate of
designations.
Section 2. Dividends and Distributions. (A) Subject to the
prior rights of the holders of any shares of any series of Preferred Stock
ranking prior 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 shall be entitled to receive, when and as
declared by the Board of Directors out of funds legally available for the
payment of dividends, quarterly dividends payable in cash on the first day of
January, April, July and October in each year or such other days on which
dividends are declared with respect to the Common Stock (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) $10
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 Junior Participating Preferred Stock. If
the Corporation shall at any time after November 20, 1987 (the "Rights
Declaration Date") (i) declare any dividend 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 amount to which holders of shares of Series A Junior Participating
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 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, if 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 $10 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, unless (i) such date of issue 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 (ii) such date
of issue is either a Quarterly Dividend Payment Date or 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 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Junior Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock shall
entitle the holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any dividend 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 number of votes per share to which holders of
shares of Series A Junior Participating 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 or by law, the holders
of shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If and whenever at any time or times dividends payable
on shares of any Series A Junior Participating Preferred Stock shall have been
in arrears and unpaid in an aggregate amount equal to or exceeding the amount
of dividends payable thereon for six quarterly dividend periods, then the
holders of shares of any Series A Junior Participating Preferred Stock,
together with the holders of any other series of Preferred Stock as to which
dividends are in arrears and unpaid in an aggregate amount equal to or
exceeding the amount of dividends payable thereon for six quarterly dividend
periods, shall have the exclusive right, voting separately as a class with
such other series, to elect two directors of the Corporation, such directors
to be in addition to the number of directors constituting the Board of
Directors immediately prior to the accrual of such right, the remaining
directors to be elected by the other class or classes of stock entitled to
vote therefor at each meeting of stockholders held for the purpose of electing
directors.
(ii) Such voting right may be exercised initially either at a
special meeting of the holders of the Preferred Stock having such voting
right, called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and thereafter at
each such annual meeting until such time as all cumulative dividends
accumulated and payable on the shares of Series A Junior Participating
Preferred Stock shall have been paid in full, at which time such voting right
shall terminate, subject to revesting on the basis set forth in paragraph
(C)(i).
(iii) At any time when such voting right shall have vested in
holders of the Preferred Stock, and if such right shall not already have been
initially exercised, a proper officer of the Corporation shall, upon the
written request of the record holders of 10% in number of shares of Preferred
Stock having such voting right then outstanding, addressed to the Secretary of
the Corporation, call a special meeting of the holders of Preferred Stock
having such voting right and of any other class or classes of stock having
voting power with respect to the election of such directors. Such meeting
shall be held at the earliest practicable date upon the notice required for
annual meetings of stockholders at the place for holding annual meetings of
stockholders of the Corporation or, if none, at a place designated by the
Board of Directors. If such meeting is not
called by the proper officers of the Corporation within 30 days after the
personal service of such written request upon the Secretary of the
Corporation, or within 30 days after mailing the same within the United States
of America, by registered mail, addressed to the Secretary of the Corporation
at its principal office (such mailing to be evidenced by the registry receipt
issued by the postal authorities), then the record holders of 10% in number of
shares of the Preferred Stock then outstanding which would be entitled to vote
at such meeting may designate in writing one of their number to call such
meeting at the expense of the Corporation, and such meeting may be called by
such person so designated upon the notice required for annual meetings of
stockholders and shall be held at the same place as is elsewhere provided for
in this paragraph (C)(iii) or such other place as is selected by such
designated stockholder. Any holder of the Preferred Stock who would be
entitled to vote at such meeting shall have access to the stock books of the
Corporation for the purpose of causing a meeting of stockholders to be called
pursuant to the provisions of this paragraph (C). Notwithstanding the
provisions of this paragraph (C), no such special meeting shall be called
during a period within 90 days immediately preceding the date fixed for the
next annual meeting of stockholders.
(iv) At any meeting held for the purpose of electing
directors at which the holders of the Preferred Stock shall have the right to
elect two directors in addition to the number of directors constituting the
Board of Directors immediately prior to accrual of such right as provided
herein, the presence in person or by proxy of the holders of 40% of the then
outstanding shares of Preferred Stock having such right shall be required and
shall be sufficient to constitute a quorum of such class of the election of
directors by such class. At any such meeting or adjournment thereof (i) the
absence of a quorum of the holders of the Preferred Stock having such right
shall not prevent the election of directors other than those to be elected by
the holders of the Preferred Stock, and the absence of a quorum or quorums of
the holders of capital stock entitled to elect such other directors shall not
prevent the election of directors to be elected by the holders of the
Preferred Stock entitled to elect such directors and (ii) except as otherwise
required by law, in the absence of a quorum of the holders of any class of
stock entitled to vote for the election of directors, a majority of the
holders present in person or by proxy of such class shall have the power to
adjourn the meeting for the election of directors which the holders of such
class are entitled to elect, from time to time, without notice other than
announcement at the meeting, until a quorum is present.
(v) Any vacancy in the Board of Directors in respect of a
director elected by holders of Preferred Stock pursuant to the voting right
created under this paragraph (C) shall be filled by vote of the remaining
director so elected, or if there be no such remaining director, by the holders
of Preferred Stock entitled to elect such director or directors at a special
meeting called in accordance with the procedures set forth in paragraph
(C)(iii), or, if no such special meeting is called, at the next annual meeting
of stockholders. Upon any termination of such voting right, subject to the
requirements of the General Corporation Law of Delaware, the term of office of
all directors elected by holders of Preferred Stock voting separately as a
class shall terminate.
(D) Except as set forth herein, or as required by law,
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.
Section 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 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;
(ii) 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 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 Article IV,
Section I of its Certificate of Incorporation or 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
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 the conditions and
restrictions on issuance set forth herein.
Section 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 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) 100 (as appropriately adjusted as set forth
in paragraph C below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock) (such number in clause
(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 Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior Participating Preferred
Stock and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) (i) If there are not sufficient assets available to
permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Series A Junior Participating Preferred Stock, then
such assets as are available shall be distributed ratably to the holders of
such parity shares in proportion to their respective liquidation preferences.
(ii) If there are not sufficient assets available to permit payment in full
of the Common Adjustment, then such assets as are available shall be
distributed ratably to the holders of Common Stock.
(C) If the Corporation shall at any time after November
20, 1987 (i) declare any dividend 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.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, then in any
such case the shares of Series A Junior Participating Preferred Stock shall at
the same time be similarly exchanged or changed in 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. If the Corporation shall at
any time after the Rights Declaration Date (i) declare any dividend 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 amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Junior Participating 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 Junior
Participating Preferred Stock shall not be redeemable.
Section 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 Issuing Resolution with respect to any such series shall provide
otherwise.
Section 10. Fractional Shares. Series A Junior
Participating Preferred Stock may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.
II. SECOND PREFERRED STOCK
1. The Second Preferred Stock may be issued, from time to
time, in one or more series, in any manner now or hereafter permitted by law.
2. The shares of each series shall have the designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, which are stated and
expressed in this section II, and those which are stated and expressed in the
resolution or resolutions providing for the issue of such series, adopted by
the Board of Directors under the authority granted to the Board of Directors
by the provisions of paragraph 3 of this section II.
3. Authority is hereby expressly granted to and vested in the
Board of Directors of the Corporation to provide for the issue of the Second
Preferred Stock in one or more series, and with respect to each such series to
fix, by resolution or resolutions, the following:
(a) The maximum number of shares to constitute the series
and the distinctive designation of the shares;
(b) The annual dividend rate on the shares of the series
and the date or dates from which dividends shall accumulate;
(c) The amount which the holders of shares of the series
shall be entitled to receive upon the voluntary liquidation,
dissolution or winding up of the Corporation, which shall not be
less than the par value plus an amount equal to all accumulated
and unpaid dividends to the date of final distribution to such
holders;
(d) Whether or not the shares of the series shall be
subject to redemption at the option of the Corporation and if
so, the price which holders of shares so redeemed shall be
entitled to receive, which price may vary at different
redemption dates but shall in no event be less than the par
value per share plus an amount equal to all accumulated and
unpaid dividends to the date of redemption, and if such price
varies, the period during which each such variation in price
shall be applicable;
(e) Whether or not the shares of the series shall be
subject to redemption through the operation of a sinking fund
and, if so, the terms and provisions of such sinking fund and
the extent to which and the manner in which such fund shall be
applied to the purchase, redemption or other acquisition of
shares of the series and the redemption price for shares
redeemed through the sinking fund, which price may vary at
different redemption dates but shall in no event be less than
the par value per share plus an amount equal to all accumulated
and unpaid dividends to the date of redemption, and if such
price varies, the period during which each such variation in
price shall be applicable;
(f) Whether or not there shall be a purchase fund to
acquire shares of the series and, if so, the terms and
provisions of the purchase fund and the extent to which and the
manner in which such purchase fund shall be applied to the
acquisition of shares of the series;
(g) The limitations and restrictions, if any, in addition
to, but not in derogation of, the limitations and restrictions
set forth in paragraph 5 of this section II, which are to be
effective while any shares of the series are outstanding, upon
payment of dividends on, or making of other distributions on,
and upon the purchase, redemption or other acquisition by the
Corporation or any subsidiary of, shares of Common Stock or any
other class of stock ranking junior to the Second Preferred
Stock as to dividends or upon liquidation;
(h) The conditions or restrictions, if any, which are to
be effective while any shares of the series are outstanding,
upon the creation of indebtedness of the Corporation or upon the
issuance of shares of stock of the Corporation;
(i) Any voting rights of the shares of the series, other
than the voting rights for the election of Directors provided by
paragraph 13 of this section II, in addition to and not
inconsistent with those granted by this Article IV to the
holders of the Second Preferred Stock;
(j) The right, if any, to exchange or convert the shares
of the series into shares of any other series of the Second
Preferred Stock or into shares of any other class of stock of
the Corporation and the rate or basis, time, manner and
conditions of exchange or conversion or the method by which the
same shall be determined;
(k) Any other designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of the
series, which are now or hereafter permitted by the laws of
Delaware, and which are not inconsistent with the provisions of
paragraphs 4 to 17, inclusive, of this section II.
The resolution or resolutions providing for the issue of shares
of any series are herein referred to as the "Issuing Resolution" for that
series.
4. All series of the Second Preferred Stock shall be senior to
the Common Stock and each series of the Second Preferred Stock shall rank
equally with every other series. Each share of any one series shall be
identical with every other share of that series except as to the date or dates
from which dividends shall accumulate.
5. Subject to the provisions of paragraph 5 of section I of
this Article IV and to any limitation or restriction contained in the Issuing
Resolution for any series of Preferred Stock, the holders of shares of each
series of the Second Preferred Stock shall be entitled to receive cash
dividends, when and as declared by the Board of Directors out of any funds
legally available therefor, at the annual rate fixed in the Issuing Resolution
for that particular series and no more. Such dividends on each series of the
Second Preferred Stock shall be payable quarterly on the first day of
February, May, August and November in each year to holders of record on a
date, not more than fifty (50) days before each such dividend payment date, to
be determined by the Board of Directors in advance of the payment of each
particular dividend. Dividends on each series of the Second Preferred Stock
shall be cumulative and preferential so that in no event shall any dividend or
other distribution (other than dividends payable in Common Stock or in any
other class of stock ranking junior to the Second Preferred Stock as to
dividends and upon liquidation) be declared or paid upon or set apart for the
Common Stock or any other class of stock ranking junior to the Second
Preferred Stock as to dividends or upon liquidation nor shall any moneys or
other consideration (other than shares of Common Stock or any other class of
stock ranking junior to the Second Preferred Stock as to dividends and upon
liquidation) be set aside for or applied to the purchase or redemption of
shares of Common Stock or any other class of stock ranking junior to the
Second Preferred Stock as to dividends or upon liquidation, unless all
dividends on each then outstanding series of the Second Preferred Stock for
all past quarter-yearly dividend periods shall have been paid, or declared and
a sum sufficient for the payment thereof set apart, and the full dividend
thereon for the then quarterly dividend period shall have been or concurrently
shall be paid or declared. With respect to each series of the Second
Preferred Stock, such dividends shall accumulate from the date or dates fixed
in the Issuing Resolution for such series which date or dates shall in no
instance be more than ninety days before or after the date of the issuance of
those shares for which the date is being set. No dividends shall be declared
on any series of the Second Preferred Stock in respect of any dividend period
unless the same proportion of the annual dividend rate respectively applicable
to the shares of every series of the Second Preferred Stock at the time
outstanding shall likewise be declared as a dividend in respect of such
dividend period.
The term "accumulated and unpaid dividends" means, in respect of
each share of the Second Preferred Stock of any series, that amount which
shall be equal to simple interest upon the par value of such share at the
dividend rate for such series from the date from which dividends on such share
commenced to accumulate to the date as of which the computation is to be made,
less the aggregate amount (without interest thereon) of all dividends
theretofore paid or declared and set aside for payment in respect thereof.
6. (a) In the event of any involuntary liquidation, dissolution
or winding up of the Corporation, the holders of the shares of every series of
the Second Preferred Stock shall, subject to the provisions of paragraph 6 of
section I of this Article IV, be entitled to receive payment at the rate of
$100 per share, plus an amount equal to all accumulated and unpaid dividends
to the date of final distribution to such holders, and no more, before any
payment or distribution of the assets of the Corporation shall be made to or
set apart for the holders of the Common Stock or any other class of stock
ranking junior to the Second Preferred Stock upon liquidation.
(b) In the event of any voluntary liquidation, dissolution or
winding up of the Corporation, the holders of the shares of each series of the
Second Preferred Stock shall, subject to the provisions of paragraph 6 of
section I of this Article IV, be entitled to receive the amount set forth for
such payment in the Issuing Resolution for that particular series, which
amount shall in no case be less than $100 per share, plus an amount equal to
all accumulated and unpaid dividends to the date of final distribution to such
holders, and no more, before any payment or distribution of the assets of the
Corporation shall be made to or set apart for the holders of the Common Stock
or any other class of stock ranking junior to the Second Preferred Stock upon
liquidation.
(c) If, upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the assets of the Corporation,
or proceeds thereof, distributable among the holders of the Second Preferred
Stock shall be insufficient to pay in full the preferential amount for every
series of the Second Preferred Stock, then such assets or the proceeds thereof
shall be distributed among the holders of the shares of all series of the
Second Preferred Stock in proportion to the respective amounts to which they
would be entitled if all amounts payable thereon were paid in full.
(d) For the purposes of this paragraph 6, a consolidation or
merger of the Corporation with or into one or more other corporations (whether
or not the Corporation is the corporation surviving such consolidation or
merger), or a sale, lease or exchange of all or substantially all of the
assets of the Corporation, shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
7. (a) If the Issuing Resolution for any series of the Second
Preferred Stock provides that the Corporation, at the option of the Board of
Directors, may redeem at any time all, or from time to time any part, of the
shares of the Second Preferred Stock of such series at the time outstanding or
if the Issuing Resolution for any series of the Second Preferred Stock
provides for the creation of a sinking fund to redeem outstanding shares of
that series of the Second Preferred Stock, the shares of the series to be
redeemed at the option of the Board of Directors or to be redeemed through
operation of the sinking fund shall be redeemed in the manner set forth in
this paragraph 7.
(b) Notice of every such redemption shall be mailed at least 30
days in advance of the date designated for such redemption (herein called the
"redemption date") to the holders of record of the shares of the Second
Preferred Stock so to be redeemed at their respective addresses as the same
shall appear on the books of the Corporation. In order to facilitate the
redemption of any shares of the Second Preferred Stock that may be chosen for
redemption as provided in this paragraph 7, the Board of Directors shall be
authorized to cause the transfer books of the Corporation to be closed as to
such shares as of a date within fifteen (15) days prior to the redemption
date. In case of the redemption of a part only of any series of the Second
Preferred Stock at the time outstanding, the shares of such series so to be
redeemed shall be selected by lot or by such other equitable method as the
Board of Directors may determine.
(c) If said notice of redemption shall have been given as
aforesaid, and if on or before the redemption date, the funds necessary for
such redemption shall have been set aside by the Corporation, separate and
apart from its other funds, in trust for the pro rata benefit of the holders
of the shares so called for redemption, then, from and after the redemption
date, notwithstanding that any certificate for shares of the Second Preferred
Stock so called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall not be deemed outstanding,
and all rights of the holders of the shares of the Second Preferred Stock so
called for redemption shall forthwith, from and after the redemption date,
cease and terminate, excepting only the right to receive the redemption price
therefor but without interest. Any moneys so set aside by the Corporation and
unclaimed at the end of six years from the date fixed for such redemption
shall revert to the general funds of the Corporation after which reversion any
holder of such shares so called for redemption shall have only such rights, if
any, as he may possess under applicable law to receive from the Corporation
payment of the redemption price.
(d) If, on or before the redemption date, the Corporation shall
deposit in trust, with a bank or trust company in the Borough of Manhattan, in
the City of New York, having a capital and surplus of at least $5,000,000, the
funds necessary for the redemption of the shares of the Second Preferred Stock
so to be redeemed, to be applied to the redemption of such shares, and if the
Corporation shall have given notice of redemption as aforesaid or given
irrevocable written authorization to such bank or trust company, in form
satisfactory to it, for the timely giving of such notice, then from and after
the time when such deposit is made all shares of the Second Preferred Stock so
called for redemption shall not be deemed to be outstanding, and all rights of
the holders of such shares of the Second Preferred Stock so called for
redemption shall cease and terminate, excepting only the right to receive the
redemption price therefor, but without interest.
In case such deposit is made with a bank or trust company and
any holder of shares of the Second Preferred Stock which shall have been
called for redemption shall not, within one year after the redemption date,
claim the amount deposited with respect to the redemption thereof, such bank
or trust company shall, upon demand, pay over to the Corporation such
unclaimed amount and thereupon such bank or trust company shall be relieved of
all responsibility in respect thereof to such holder and such holder
thereafter shall have only such rights, if any, as he may possess under
applicable law to receive from the Corporation payment thereof. Any interest
accrued on funds so deposited shall be paid to the Corporation from time to
time. Any such unclaimed amounts paid over by any such bank or trust company
to the Corporation shall, for a period terminating six years after the date
fixed for redemption, be set aside and held by the Corporation in the same
manner as if such unclaimed amounts had been set aside under the preceding
paragraph 7(c).
8. Whether or not the Issuing Resolution for any series of the
Second Preferred Stock provides for optional redemption of shares, or for a
sinking fund or a purchase fund for the redemption or purchase of shares of
such series, the Corporation shall have the right, subject to the provisions
of paragraph 5 of section I of this Article IV and subject to any limitation
thereon in any Issuing Resolution for any series of Preferred Stock or Second
Preferred Stock, at any time to purchase privately or in the public markets,
and to solicit tenders of, any portion or the whole of the shares of any or
all series at prices which are not in excess of the respective redemption
prices of such shares.
9. (a) All shares of any series of the Second Preferred Stock
which have been acquired through the operation of a purchase fund or of a
sinking fund or by redemption or have been credited against any purchase fund
or sinking fund or have been surrendered to the Corporation on the conversion
or exchange thereof into or for other shares of the Corporation shall, upon
compliance with any applicable provisions of the General Corporation Law of
the State of Delaware, have the status of authorized and unissued shares of
the Second Preferred Stock, but shall be reissued only as, or as part of, a
new series of the Second Preferred Stock to be created by an Issuing
Resolution of the Board of Directors or as part of any other series of the
Second Preferred Stock the terms of which do not prohibit such reissue as a
part thereof, and shall not be reissued as a part of the series of which they
were originally a part.
(b) All shares of any series of the Second Preferred Stock
which have been acquired otherwise than through the operation of a purchase
fund or of a sinking fund or by redemption and which have not been credited
against any purchase fund or sinking fund, and which have not been surrendered
to the Corporation on the conversion or exchange thereof into or for other
shares of the Corporation, shall have the status of treasury stock and may be
disposed of as permitted by law.
10. So long as any of the Second Preferred Stock is
outstanding, the Corporation will not, without the affirmative vote or consent
of the holders of at least 66-2/3% of all of the Second Preferred Stock at the
time outstanding, voting as a class regardless of series, given in person or
by proxy, either in writing or by resolution adopted at a special meeting
called for the purpose:
(a) Amend, alter or repeal any of the provisions of this
Article IV so as to affect adversely the designations,
preferences and relative, participating, optional or other
special rights, or the qualifications, limitations or
restrictions thereof, of all of the series of the Second
Preferred Stock;
(b) (i) increase the authorized amount of the Preferred
Stock, (ii) create any other class or classes of stock ranking
senior to the Second Preferred Stock either as to dividends or
upon liquidation, (iii) create any class or classes of stock
which have any right to be converted into any class or classes
of stock ranking senior to the Second Preferred Stock as to
dividends or upon liquidation or grant any rights to any class
of stock to be so converted, or (iv) merge or consolidate with
or into any other corporation, if such merger or consolidation
would affect adversely the designations, preferences and
relative, participating, optional or other special rights, or
the qualifications, limitations or restrictions thereof, of all
of the series of the Second Preferred Stock.
11. The Corporation will not amend, alter or repeal any of the
provisions of this Article IV or of any Issuing Resolution for series of
Second Preferred Stock so as to affect adversely the designations, preferences
and relative, participating, optional or other special rights, or the
qualifications, limitations or restrictions thereof, of one or more, but not
all, series of the Second Preferred Stock, or merge or consolidate with or
into any other corporation if such merger or consolidation would affect
adversely the designations, preferences and relative, participating, optional
or other special rights, or the qualifications, limitations or restrictions
thereof, of one or more, but not all, series of the Second Preferred Stock,
without the affirmative vote or consent of the holders of at least 66-2/3% of
each series so adversely affected at the time outstanding, voting as a class,
in person or by proxy, either in writing or by resolution adopted at a special
meeting called for the purpose, but the other series of the Second Preferred
Stock not affected thereby shall not have the right to vote thereon.
12. The Corporation will not, without the affirmative vote or
consent of the holders of at least a majority of all of the Second Preferred
Stock at the time outstanding, voting as a class regardless of series, given
in person or by proxy, either in writing or by resolution adopted at a special
meeting called for the purpose, (a) increase the authorized amount of the
Second Preferred Stock, (b) create any class or classes of stock ranking on a
parity with the Second Preferred Stock either as to dividends or upon
liquidation, or (c) create any class or classes of stock which have any right
to be converted into any class or classes of stock ranking on a parity with
the Second Preferred Stock as to dividends or upon liquidation or grant any
rights to any class of stock to be so converted.
13. (a) If, and whenever, at any time or times, there shall
remain unpaid, on any series of the Second Preferred Stock, the dividends
which were payable for four full quarterly dividend periods, or if any
arrearage or default in any sinking fund provided for in any Issuing
Resolution shall occur under such conditions and continue for such period of
time as, under the provisions of such Issuing Resolution, to entitle the
holders of the outstanding shares of the Second Preferred Stock to the voting
rights provided by this paragraph 13, the outstanding Second Preferred Stock
of all series, voting separately as a class, shall have the right to elect two
Directors and the remaining Directors shall be elected by the holders of
shares of the Common Stock (subject to the voting rights of the holders of the
Preferred Stock).
(b) Whenever such right of the holders of the Second Preferred
Stock shall have vested, such right may be exercised initially either at a
special meeting of such holders of the Second Preferred Stock called as
provided in this paragraph, or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders. If the date upon which such
right of the holders of the Second Preferred Stock shall become vested shall
be more than sixty days preceding the date of the next ensuing annual meeting
of stockholders as fixed by the By-Laws of the Corporation, the President of
the Corporation shall call promptly a special meeting of the holders of the
Second Preferred Stock and the Common Stock to be held within thirty days for
the purpose of electing a new Board of Directors (exclusive of any Directors
elected to represent the Preferred Stock pursuant to the provisions of section
I of this Article IV) to serve until the next annual meeting and until their
successors shall be elected and shall qualify. Notice of such meeting shall
be mailed to each holder of Second Preferred Stock and each holder of Common
Stock not less than ten days prior to the date of such meeting. If at any
such meeting any Director (other than a Director elected to represent the
Preferred Stock) shall not be re-elected, his term of office shall end upon
the election of his successor, notwithstanding that the term for which he was
originally elected shall not then have expired. In the event that at any such
meeting at which holders of the Second Preferred Stock shall be entitled to
elect Directors, a quorum of the holders of the Second Preferred Stock shall
not be present in person or by proxy, the holders of the Common Stock, if a
quorum thereof be present, may elect the Directors whom the holders of the
Second Preferred Stock were entitled, but failed, to elect. Such Directors
shall be designated as having been so elected to represent the Second
Preferred Stock and their successors shall be elected by the holders of the
Second Preferred Stock at the next annual meeting.
(c) Whenever the holders of the Second Preferred Stock shall be
entitled to elect Directors as provided in paragraph 13(a) of this section II,
any holder of Second Preferred Stock shall have the right, during regular
business hours, in person or by a duly authorized representative, to examine
and to make transcripts of the stock records of the Corporation for the Second
Preferred Stock for the purpose of communicating with other holders of Second
Preferred Stock with respect to the exercise of such right of election.
(d) At any election of members of the Board of Directors by the
Second Preferred Stock, each holder of Second Preferred Stock shall have one
vote for each share of such stock standing in his name on the books of the
Corporation on any record date fixed for such purpose, or, if no such date be
fixed, on the date on which the election is held.
(e) The right of the holders of the Second Preferred Stock,
voting separately as a class, to elect members of the Board of Directors of
the Corporation as aforesaid shall continue until such time as any and all
unpaid dividends shall have been paid and any and all sinking fund arrearages
and defaults shall have been fully cured, at which time the right of the
holders of the Second Preferred Stock to elect members of the Board of
Directors shall terminate, subject to revesting.
(f) Whenever the holders of the Second Preferred Stock shall be
divested of the right to elect members of the Board of Directors, the
President of the Corporation shall, within ten days after delivery to the
Corporation at its principal office of a request to such effect signed by any
holder of Common Stock, call a special meeting of the holders of the Common
Stock to be held within forty days after the delivery of such request for the
purpose of electing a new Board of Directors (exclusive of any Directors
elected to represent the Preferred Stock pursuant to the provisions of section
I of this Article IV) to serve until the next annual meeting or until their
respective successors shall be elected and shall qualify. If, at any such
special meeting, any Director (other than a Director elected to represent the
Preferred Stock) shall not be re-elected, his term of office shall terminate
upon the election and qualification of his successor, notwithstanding that the
term for which such Director was originally elected shall not then have
expired.
14. At any annual or special meeting of stockholders held for
the purpose of electing Directors when the holders of the Second Preferred
Stock shall be entitled to elect members of the Board of Directors as provided
in paragraph 13 of this section II, the presence in person or by proxy of the
holders of one-third of all of the outstanding shares of the Second Preferred
Stock regardless of series shall be required to constitute a quorum for the
election by the Second Preferred Stock of such Directors, and the presence in
person or by proxy of the holders of a majority of the outstanding shares of
the Common Stock shall be required to constitute a quorum for the election by
the Common Stock of the remaining Directors (other than Directors elected to
represent the Preferred Stock pursuant to the provisions of section I of this
Article IV); provided, however, that absence of a quorum of the Common Stock
shall not prevent the Second Preferred Stock if it has a quorum present from
electing the number of Directors such class shall be entitled to elect and the
Directors so elected by the Second Preferred Stock shall replace an equal
number of Directors then in office. The Directors to be replaced by those
elected by the holders of the Second Preferred Stock shall be designated by
the Board of Directors of the Corporation; and, if the Board of Directors
shall fail to make such designation within 15 days following such meeting,
then such designation shall be made by the Directors elected by the holders of
the Second Preferred Stock. The absence of a quorum of the Second Preferred
Stock shall not prevent the Common Stock from electing the entire Board of
Directors (other than Directors elected to represent the Preferred Stock)
which shall include the proper number of members to represent the Second
Preferred Stock.
15. If, during any interval between annual meetings of
stockholders for the election of Directors and while the holders of the Second
Preferred Stock shall be entitled to elect Directors, one of the Directors in
office elected by the holders of the Second Preferred Stock shall resign or
die or be removed, the vacancy shall be filled by a majority vote of all of
the remaining Directors then in office, although less than a quorum, who shall
elect a nominee designated by the remaining Director elected by the holders of
the Second Preferred Stock or his successor and if not so filled within forty
days after the creation thereof, the President of the Corporation shall call a
special meeting in the manner provided in paragraph 13 of this section II but
limited to the holders of shares of the Second Preferred Stock and such
vacancy shall be filled at such special meeting, to be held within forty days
after the delivery of such request.
16. If the Corporation is unable to meet the requirements of
all sinking fund and of all purchase fund provisions of all Issuing
Resolutions for series of Second Preferred Stock containing such provisions,
the number of shares of the respective series to be redeemed or purchased, as
the case may be, shall be in proportion to the respective amounts which would
be redeemed or purchased if all such provisions were complied with in full.
17. No holder of shares of any series of the Second Preferred
Stock shall have any preemptive or preferential right of subscription to any
stock of any class of the Corporation, or to any obligations convertible into
stock of any class, or to any warrant or option for the purchase of stock of
any class but the Board of Directors of the Corporation, in the Issuing
Resolution creating any series of the Second Preferred Stock, may confer on
that series the right to subscribe to additional shares of that series or to
shares of any series of the Second Preferred Stock which may be created
thereafter.
III. COMMON STOCK
1. All rights shall be held and possessed by the Common Stock
except for the designations, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, conferred on the Preferred Stock and the Second Preferred Stock by
applicable law, by the provisions of sections I and II of this Article IV or
by the provisions of any Issuing Resolutions for series of the Preferred Stock
or the Second Preferred Stock.
2. Holders of the shares of Common Stock without par value
shall have no right to subscribe for or purchase any part of any new or
additional issue of stock of any class whatsoever or of securities convertible
into stock of any class whatsoever whether now or hereafter authorized.
ARTICLE V
The number of shares with which this corporation will commence
business is ten (10) shares of common stock, which shares are without nominal
or par value.
ARTICLE VI
This corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE VII
This corporation is to have perpetual existence.
ARTICLE VIII
The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
ARTICLE IX
In furtherance, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
1. To make, alter, amend and rescind the by-laws of this
corporation, without any action on the part of the stockholders.
2. To authorize and cause to be executed mortgages and liens
upon the real and personal property of this corporation.
3. To fix, determine and vary the amount to be maintained as
surplus and, subject to the other provisions and requirements of this
Certificate of Incorporation, the amount or amounts to be set apart or
reserved as working capital or for any other lawful purposes. If so
determined by the Board of Directors, the corporation may from time to time
receive money and/or other property and credit the amount or value thereof to
reserve or surplus, and such money or other property may be an undivided part
of money or other property for another part of which stock, bonds, debentures
and/or other obligations of the corporation are issued. Against any reserve
or surplus so established there may be charged losses at any time incurred by
the corporation, also dividends or other distributions upon stock. Such
reserve or surplus may be reduced from time to time by the Board of Directors
for the purposes above specified or by transfer from such reserve or surplus
to capital account.
4. From time to time to determine whether and to what extent,
and at what times and places, and under what conditions and regulations, the
accounts and books of this corporation (other than the stock ledger), or any
of them, shall be open to inspection of stockholders; and no stockholder shall
have any right of inspecting any account, book or document of this corporation
except as conferred by statute, unless authorized by a resolution of
stockholders or directors.
5. If the by-laws so provide, to designate two or more of its
number to constitute an executive committee, which committee shall for the
time being, as provided in said resolution or in the by-laws of this
corporation, have and exercise any or all of the powers of the Board of
Directors in the management of the business and affairs of this corporation,
and have power to authorize the seal of this corporation to be affixed to all
papers which may require it.
6. Pursuant to the affirmative vote of the holders of at least
a majority of the stock issued and outstanding having voting power, given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of the holders of a majority of the voting stock issued and
outstanding, the Board of Directors shall have power and authority at any
meeting to sell, lease or exchange all of the property and assets of this
corporation, including its goodwill and its corporate franchises, upon such
terms and conditions as its Board of Directors deem expedient and for the best
interests of the corporation.
7. Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 3883 of the Revised Code of 1915 of said State, or
on the application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of Section 43 of this
Chapter, order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may
be, and also on this corporation.
8. This corporation may in its by-laws confer powers upon its
directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon them by the statute.
9. Both stockholders and directors shall have power, if the
by-laws so provide, to hold their meetings, and to have one or more offices
within or without the State of Delaware 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 be from time to time designated by the Board
of Directors.
ARTICLE X
The number of directors of this corporation shall be such
number, not less than three, as shall from time to time be fixed by the
by-laws of the corporation. In case of any vacancy in the Board of Directors
through death, resignation, disqualification or other cause, the remaining
directors, by affirmative vote of a majority thereof, may elect a successor to
office for the unexpired portion of the term of the director whose place shall
be vacant and until the election of a successor.
ARTICLE XI
A director of this corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except that nothing contained in this Article XI
shall eliminate or limit the liability of a director (1) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (3) under Section 174 of the Delaware General
Corporation Law, or (4) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article XI 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 or repeal.
ARTICLE XII
In the absence of fraud, no contract or transaction between this
corporation and any other association or corporation shall be affected by the
fact that any of the Directors or officers of this corporation are interested
in or are directors or officers of such other association or corporation, and
any director or officer of this corporation individually may be a party to or
may be interested in any such contract or transaction of this corporation; and
no such contract or transaction of this corporation with any person or
persons, firm, association or corporation shall be affected by the fact that
any director or officer of this corporation is a party to or interested in
such contract or transaction or in any way connected with such person or
persons, firm, association or corporation; and each and every person who may
become a director or officer of this corporation is hereby relieved from any
liability that might otherwise exist from thus contracting with this
corporation for the benefit of himself or any person, firm, association or
corporation in which he may be in any wise interested.
IN WITNESS WHEREOF, the corporation has caused its corporate
seal to be affixed and this Restated Certificate of Incorporation to be signed
by its Senior Vice President and General Counsel and attested by its Secretary
this 21st day of October, 1988.
REYNOLDS METALS COMPANY
By /s/ John H. Galea
John H. Galea
Senior Vice President and
General Counsel
ATTEST:
/s/ Donald T. Cowles
Donald T. Cowles
Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
FOIL DISTRIBUTING COMPANY
INTO
REYNOLDS METALS COMPANY
___________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
___________________________________
REYNOLDS METALS COMPANY, a corporation incorporated on the
18th day of July, 1928, pursuant to the provisions of the General Corporation
Law of the State of Delaware (the "Corporation"), does hereby certify that the
Corporation owns all of the outstanding stock of FOIL DISTRIBUTING COMPANY, a
corporation incorporated on the 4th day of April, 1983, pursuant to the
provisions of the general corporation Law of the State of Delaware, and that
the Corporation by resolutions of its Board of Directors duly adopted at a
meeting held on the 17th day of April, 1991, determined to and did merge into
itself said FOIL DISTRIBUTING COMPANY, which resolutions are as follows:
RESOLVED, that this corporation, as owner of
all the outstanding capital stock of Foil
Distributing Company, merge into itself Foil
Distributing Company and assume all of its
liabilities and obligations effective as of 12:01
a.m. on April 30, 1991; and
FURTHER RESOLVED, that the Chairman of the
Board, the President, any Vice President, the
Secretary and any Assistant Secretary are each
hereby authorized to take all such other action,
including, without limitation, incurrence and
payment of all fees, expenses and other charges,
and to execute and deliver all such agreements,
instruments and documents, which in the opinion of
any of them may be necessary or desirable to
achieve the purposes of or effect the transactions
contemplated by the preceding resolution, the
taking of such action or the execution of any such
agreements, instruments or documents to be
conclusive evidence of the authority to take or
execute the same.
This Certificate of Ownership and Merger shall be effective
as of 12:01 A.M. on April 30, 1991.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed and attested by its officers thereunto duly
authorized this 22nd day of April, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
Donna C. Dabney
Assistant Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
REYNOLDS OF HAWAII, INC.
INTO
REYNOLDS METALS COMPANY
___________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
___________________________________
REYNOLDS METALS COMPANY, a corporation incorporated on the
18th day of July, 1928, pursuant to the provisions of the General Corporation
Law of the State of Delaware (the "Corporation"), does hereby certify that the
Corporation owns all of the outstanding stock of REYNOLDS OF HAWAII, INC., a
corporation incorporated on the 4th day of May, 1979, pursuant to the
provisions of the general corporation Law of the State of Delaware, and that
the Corporation by resolutions of its Board of Directors duly adopted at a
meeting held on the 17th day of April, 1991, determined to and did merge into
itself said REYNOLDS OF HAWAII, INC., which resolutions are as follows:
RESOLVED, that this corporation, as owner of
all the outstanding capital stock of Reynolds of
Hawaii, Inc., merge into itself Reynolds of
Hawaii, Inc. and assume all of its liabilities and
obligations effective as of 12:01 a.m. on April
30, 1991; and
FURTHER RESOLVED, that the Chairman of the
Board, the President, any Vice President, the
Secretary and any Assistant Secretary are each
hereby authorized to take all such other action,
including, without limitation, incurrence and
payment of all fees, expenses and other charges,
and to execute and deliver all such agreements,
instruments and documents, which in the opinion of
any of them may be necessary or desirable to
achieve the purposes of or effect the transactions
contemplated by the preceding resolution, the
taking of such action or the execution of any such
agreements, instruments or documents to be
conclusive evidence of the authority to take or
execute the same.
This Certificate of Ownership and Merger shall be effective
as of 12:01 A.M. on April 30, 1991.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed and attested by its officers thereunto duly
authorized this 22nd day of April, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
Donna C. Dabney
Assistant Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
BROAD ST. ROAD CORPORATION
INTO
REYNOLDS METALS COMPANY
___________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
___________________________________
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify that the Corporation owns all the
outstanding stock of BROAD ST. ROAD CORPORATION, a Delaware corporation, and
that the Corporation by resolutions of its Board of Directors duly adopted at
a meeting held on the 15th day of November, 1991, determined to and did merge
into itself BROAD ST. ROAD CORPORATION, which resolutions are as follows:
RESOLVED, that this corporation, as owner of
all the outstanding capital stock of Broad St.
Road Corporation, merge into itself Broad St. Road
Corporation and assume all of its liabilities and
obligations effective as of 5:00 p.m. on December
31, 1991; and
FURTHER RESOLVED, that the Chairman of the
Board, the President, any Vice President, the
Secretary and any Assistant Secretary are each
hereby authorized to take all such other action,
including, without limitation, incurrence and
payment of all fees, expenses and other charges,
and to execute and deliver all such agreements,
instruments and documents, which in the opinion of
any of them may be necessary or desirable to
achieve the purposes of or effect the transactions
contemplated by the preceding resolution, the
taking of such action or the execution of any such
agreements, instruments or documents to be
conclusive evidence of the authority to take or
execute the same.
This Certificate of Ownership and Merger shall be effective
as of 5:00 p.m. on December 31, 1991.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed and attested by its officers thereunto duly
authorized this 26th day of November, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
D. Michael Jones
Assistant Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
REYNOLDS ALUMINUM RECYCLING COMPANY
INTO
REYNOLDS METALS COMPANY
____________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
____________________________________
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify that the Corporation owns all the
outstanding stock of REYNOLDS ALUMINUM RECYCLING COMPANY, a Missouri
corporation, and that the Corporation by resolutions of its Board of Directors
duly adopted by unanimous written consent on December 16, 1991 pursuant to
Section 141(f) of the Delaware General Corporation Law determined to and did
merge into itself REYNOLDS ALUMINUM RECYCLING COMPANY, which resolutions are
as follows:
RESOLVED, that this corporation, as owner of
all the outstanding capital stock of Reynolds
Aluminum Recycling Company, merge into itself
Reynolds Aluminum Recycling Company and assume all
of its liabilities and obligations effective as of
5:00 p.m. on December 31, 1991 pursuant to the
following Plan of Merger:
1. Reynolds Metals Company of Delaware
is the survivor.
2. All of the property, rights,
privileges, leases and patents of
Reynolds Aluminum Recycling Company, a
Missouri corporation, are to be
transferred to and become the property
of Reynolds Metals Company, the
survivor. The officers and board of
directors of the above named
corporations are authorized to execute
all deeds, assignments, and documents of
every nature which may be needed to
effectuate a full and complete transfer
of ownership.
3. The officers and board of directors
of Reynolds Metals Company shall
continue in office until their
successors are duly elected and
qualified under the provisions of the
by-laws of the surviving corporation.
4. It is agreed that, upon and after
the issuance of a certificate of merger
by the Secretary of State of the State
of Missouri:
a. The surviving corporation
may be served with process in
the State of Missouri in any
proceeding for the enforcement
of any obligation of any
corporation organized under
the laws of the State of
Missouri which is a party to
the merger and in any
proceeding for the enforcement
of the rights of a dissenting
shareholder of any such
corporation organized under
the laws of the State of
Missouri against the surviving
corporation;
b. The Secretary of State of
the State of Missouri shall be
and hereby is irrevocably
appointed as the agent of the
surviving corporation to
accept service of process in
any such proceeding; the
address to which the service
of process in any such
proceeding shall be mailed is:
Secretary, Reynolds Metals
Company, 6601 West Broad
Street, Richmond, Virginia
23230; and
c. The surviving corporation will
promptly pay to the dissenting
shareholders of any corporation
organized under the laws of the
State of Missouri which is a party
to the merger the amount, if any,
to which they shall be entitled
under the provisions of "The
General and Business Corporation
Law of Missouri" with respect to
the rights of dissenting
shareholders.
5. The articles of incorporation of
the survivor are not amended.
provided that, at any time prior to the filing
with the Delaware Secretary of State of a
Certificate of Ownership and Merger merging
Reynolds Aluminum Recycling Company into this
corporation, the Board of Directors of this
corporation may terminate this resolution and
abandon the merger contemplated hereby; and
FURTHER RESOLVED, that the Chairman of the
Board, the President, any Vice President, the
Secretary and any Assistant Secretary are each
hereby authorized to take all such action,
including, without limitation, incurrence and
payment of all fees, expenses and other charges,
and to execute and deliver all such agreements,
instruments and documents, which in the opinion of
any of them may be necessary or desirable to
achieve the purposes of or effect the transactions
contemplated by the preceding resolution, the
taking of such action or the execution of any such
agreements, instruments or documents to the
conclusive evidence of the authority to take or
execute the same.
This Certificate of Ownership and Merger shall be effective
as of 5:00 p.m. on December 31, 1991.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed and attested by its officers thereunto duly
authorized this 20th day of December, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
D. Michael Jones
Assistant Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
REYNOLDS SEATTLE CAN COMPANY
INTO
REYNOLDS METALS COMPANY
_____________________________________________
Pursuant to Section 253 of the
General Corporation Law of Delaware
_____________________________________________
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to
the General Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding
shares of each class of the capital stock of REYNOLDS SEATTLE CAN COMPANY, a
Delaware corporation.
THIRD: That the Corporation, by the following resolutions
of its Board of Directors, duly adopted at a meeting held on the 19th day of
June, 1992, determined to merge into itself REYNOLDS SEATTLE CAN COMPANY on
the conditions set forth in such resolutions:
RESOLVED, that this corporation, as
owner of all of the outstanding shares of
each class of the capital stock of Reynolds
Seattle Can Company, merge into itself
Reynolds Seattle Can Company and assume all
of its liabilities and obligations effective
as of 5:00 p.m. E.D.T. on June 30, 1992; and
FURTHER RESOLVED, that the Chief
Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, any
Vice Chairman, any Executive Vice President,
any Vice President, the Secretary and any
Assistant Secretary are each hereby
authorized to take all such action,
including, without limitation, incurrence and
payment of all fees, expenses and other
charges, and to execute and deliver all such
agreements, instruments and documents
(including, without limitation, a certificate
of ownership and merger) which in the opinion
of any of them may be necessary or desirable
to achieve the purposes of or effect the
transactions contemplated by the preceding
resolution, the taking of any such action or
the execution of any such agreements,
instruments or documents to be conclusive
evidence of the authority to take or execute
the same.
This Certificate of Ownership and Merger shall be effective
as of 5:00 p.m. E.D.T. on June 30, 1992.
IN WITNESS WHEREOF, the Corporation has caused its
corporate seal to be affixed and this Certificate to be executed and attested
by its officers thereunto duly authorized this 19th day of June, 1992.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By: D. Michael Jones
Assistant Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
REYNOLDS ALUMINUM CREDIT CORPORATION
INTO
REYNOLDS METALS COMPANY
Pursuant to Section 253 of the
General Corporation Law of Delaware
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to
the General Corporation Law of the State of Delaware.
SECOND: That the Corporations owns all of the outstanding
shares of the capital stock of REYNOLDS ALUMINUM CREDIT CORPORATION, a
Delaware corporation.
THIRD: That the Corporation, by the following
resolutions of its Board of Directors, duly adopted by unanimous written
consent dated December 16, 1993, determined to merge into itself REYNOLDS
ALUMINUM CREDIT CORPORATION on the conditions set forth in such resolutions:
RESOLVED, that this corporation, as owner of all of
the outstanding shares of the capital stock of Reynolds
Aluminum Credit Corporation, merge into itself Reynolds
Aluminum Credit Corporation and assume all of its
liabilities and obligations effective as of 5:00 p.m.
E.S.T. on December 31, 1993;
FURTHER RESOLVED, that the Chief Executive Officer,
the Chief Financial Officer, any Vice Chairman, any
Executive Vice President, any Vice President, the Secretary
and any Assistant Secretary are each hereby authorized to
take all such action, including, without limitation,
incurrence and payment of all fees, expenses and other
charges, and to execute and deliver all such agreements,
instruments and documents (including, without limitation, a
certificate of ownership and merger) which in the opinion
of any of them may be necessary or desirable to achieve the
purposes of or effect the transactions contemplated by the
preceding resolution, the taking of any such action or the
execution of any such agreements, instruments or documents
to be conclusive evidence of the authority to take or
execute the same.
This Certificate of Ownership and Merger shall be effective
as of 5:00 p.m. E.S.T. on December 31, 1993.
IN WITNESS WHEREOF, the Corporation has caused its
corporate seal to be affixed and this Certificate to be executed and attested
by its officers thereunto duly authorized this 29th day of December, 1993.
REYNOLDS METALS COMPANY
By: D. Michael Jones
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By:Carol L. Dillon
Assistant Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
REYNOLDS KANSAS CITY CAN COMPANY
INTO
REYNOLDS METALS COMPANY
Pursuant to Section 253 of the
General Corporation Law of Delaware
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to
the General Corporation Law of the State of Delaware.
SECOND: That the Corporations owns all of the outstanding
shares of each class of the capital stock of REYNOLDS KANSAS CITY CAN COMPANY,
a Delaware corporation.
THIRD: That the Corporation, by the following
resolutions of its Board of Directors, duly adopted by unanimous written
consent dated December 16, 1993, determined to merge into itself REYNOLDS
KANSAS CITY CAN COMPANY on the conditions set forth in such resolutions:
RESOLVED, that this corporation, as owner of all of
the outstanding shares of each class of the capital stock
of Reynolds Kansas City Can Company, merge into itself
Reynolds Kansas City Can Company and assume all of its
liabilities and obligations effective as of 5:00 p.m.
E.S.T. on December 31, 1993;
FURTHER RESOLVED, that the Chief Executive Officer,
the Chief Financial Officer, any Vice Chairman, any
Executive Vice President, any Vice President, the Secretary
and any Assistant Secretary are each hereby authorized to
take all such action, including, without limitation,
incurrence and payment of all fees, expenses and other
charges, and to execute and deliver all such agreements,
instruments and documents (including, without limitation, a
certificate of ownership and merger) which in the opinion
of any of them may be necessary or desirable to achieve the
purposes of or effect the transactions contemplated by the
preceding resolution, the taking of any such action or the
execution of any such agreements, instruments or documents
to be conclusive evidence of the authority to take or
execute the same.
This Certificate of Ownership and Merger shall be effective
as of 5:00 p.m. E.S.T. on December 31, 1993.
IN WITNESS WHEREOF, the Corporation has caused its
corporate seal to be affixed and this Certificate to be executed and attested
by its officers thereunto duly authorized this 29th day of December, 1993.
REYNOLDS METALS COMPANY
By:D. Michael Jones
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By:Carol L. Dillon
Assistant Secretary
CERTIFICATE OF DESIGNATIONS,
PREFERENCES, RIGHTS AND LIMITATIONS OF
7% PRIDES, Convertible Preferred Stock
of
REYNOLDS METALS COMPANY
______________________
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
______________________
Reynolds Metals Company, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), hereby
certifies that, under (i) authority conferred upon the Board of Directors by
the Restated Certificate of Incorporation of the Corporation, as amended to
date, (ii) the provisions of Sections 141(c) and 151 of the General
Corporation Law of the State of Delaware, and (iii) resolutions adopted by the
Board of Directors at its meeting on December 17, 1993, the 1993 Preferred
Stock Committee of the Board of Directors at its meeting on January 18, 1994
duly adopted the following resolution:
RESOLVED, that under (i) authority conferred upon the 1993
Preferred Stock Committee by the Board of Directors and (ii)
authority conferred upon the Board of Directors by the Restated
Certificate of Incorporation, as amended to date (the "Restated
Certificate of Incorporation"), the 1993 Preferred Stock
Committee hereby authorizes the issuance of 11,000,000 shares of
authorized and unissued preferred stock, without par value, of
the Corporation, and hereby fixes the designation, powers,
preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or
restrictions thereof, of such shares, in addition to those set
forth in the Restated Certificate of Incorporation, as follows,
to be set forth in a certificate of designations (the
"Certificate of Designations"):
Section 1. Designation and Size of Issue; Ranking.
(a) The distinctive designation of the series of preferred
stock shall be "7% PRIDES, Convertible Preferred Stock" (the
"PRIDES"). The shares are Preferred Redeemable Increased
Dividend Equity Securities. The number of shares constituting
the PRIDES shall be 11,000,000 shares. Each share of PRIDES
shall have a stated value of $47.25.
(b) Any shares of the PRIDES which at any time have
been redeemed for, or converted into, Common Stock, without par
value, of the Corporation (the "Common Stock") or otherwise
reacquired by the Corporation shall, after such redemption,
conversion or other acquisition, resume the status of authorized
and unissued shares of preferred stock, without par value, of
the Corporation (the "Preferred Stock"), without designation as
to series until such shares are once more designated as part of
a particular series by the Board of Directors.
(c) The shares of PRIDES shall rank on a parity, both
as to payment of dividends and distribution of assets upon
liquidation, with any Preferred Stock issued by the Corporation
after the date of this Certificate of Designations that by its
terms ranks pari passu with the PRIDES.
Section 2. Dividends. (a) The holders of record of
the shares of PRIDES shall be entitled to receive, when and as
declared by the Board of Directors out of funds legally
available therefor, cash dividends ("Preferred Dividends") from
the date of the issuance of the shares of PRIDES at the rate per
annum of 7 percent of the stated value per share (equivalent to
$3.31 per annum or $0.8275 per quarter for each share of
PRIDES), payable quarterly in arrears, on each April 1, July 1,
October 1 and December 31 (each a "Dividend Payment Date") or,
if any such date is not a business day (as defined herein), the
Preferred Dividend due on such Dividend Payment Date shall be
paid on the next succeeding business day; provided, however,
that, with respect to any dividend period during which a
redemption occurs, the Corporation may, at its option, declare
accrued Preferred Dividends to, and pay such Preferred Dividends
on, the date fixed for redemption, in which case such Preferred
Dividends shall be payable to the holders of shares of PRIDES as
of the record date for such dividend payment and shall not be
included in the calculation of the related PRIDES Call Price (as
defined herein). The first dividend period shall be from the
date of initial issuance of the shares of PRIDES to but
excluding April 1, 1994 and the first Preferred Dividend shall
be payable on April 1, 1994. Preferred Dividends on shares of
PRIDES shall be cumulative and shall accumulate from the date of
original issuance. Preferred Dividends on shares of PRIDES
shall cease to accrue on and after the Mandatory Conversion Date
(as defined herein) or on and after the date of their earlier
conversion or redemption, as the case may be. Preferred
Dividends shall be payable to holders of record as they appear
on the stock register of the Corporation on such record dates,
not less than 15 nor more than 60 days preceding the payment
date thereof, as shall be fixed by the Board of Directors.
Preferred Dividends payable on shares of PRIDES for any period
less than a full quarterly dividend period (or, in the case of
the first Preferred Dividend, from the date of initial issuance
of the shares of PRIDES to but excluding the first Dividend
Payment Date) shall be computed on the basis of a 360-day year
of twelve 30-day months and the actual number of days elapsed in
any period less than one month. Preferred Dividends shall
accrue on a daily basis whether or not there are funds of the
Corporation legally available for the payment of such dividends
and whether or not such Preferred Dividends are declared.
Accrued but unpaid Preferred Dividends shall cumulate as of the
Dividend Payment Date on which they first become payable, but no
interest shall accrue on accumulated but unpaid Preferred
Dividends.
(b) As long as shares of PRIDES are outstanding, no
dividends (other than dividends payable in shares of, or
warrants, rights or options exercisable for or convertible into
shares of, Second Preferred Stock, $100 par value, of the
Corporation (the "Second Preferred Stock"), Common Stock or any
other capital stock of the Corporation ranking junior to the
shares of PRIDES as to the payment of dividends and the
distribution of assets upon liquidation (collectively, the
"Junior Stock") and cash in lieu of fractional shares in
connection with any such dividend) shall be paid or declared in
cash or otherwise, nor shall any other distribution be made
(other than a distribution payable in Junior Stock and cash in
lieu of fractional shares in connection with any such
distribution), on any Junior Stock unless (i) full dividends on
Preferred Stock (including the shares of PRIDES) that does not
constitute Junior Stock ("Parity Preferred Stock") have been
paid, or declared and set aside for payment, for all dividend
periods terminating at or before the date of such Junior Stock
dividend or distribution payment to the extent such dividends
are cumulative; (ii) dividends in full for the current quarterly
dividend period have been paid, or declared and set aside for
payment, on all Parity Preferred Stock to the extent such
dividends are cumulative; (iii) the Corporation has paid or set
aside all amounts, if any, then or theretofore required to be
paid or set aside for all purchase, retirement, and sinking
funds, if any, for any Parity Preferred Stock; and (iv) the
Corporation is not in default on any of its obligations to
redeem any Parity Preferred Stock.
(c) As long as any shares of PRIDES are outstanding,
no shares of any Junior Stock may be purchased, redeemed, or
otherwise acquired by the Corporation or any of its subsidiaries
(except in connection with a reclassification or exchange of any
Junior Stock through the issuance of other Junior Stock (and
cash in lieu of fractional shares in connection therewith) or
the purchase, redemption or other acquisition of any Junior
Stock with any Junior Stock (and cash in lieu of fractional
shares in connection therewith)) nor may any funds be set aside
or made available for any sinking fund for the purchase or
redemption of any Junior Stock unless: (i) full dividends on
Parity Preferred Stock have been paid, or declared and set aside
for payment, for all dividend periods terminating at or before
the date of such purchase, redemption or other acquisition to
the extent such dividends are cumulative; (ii) dividends in full
for the current quarterly dividend period have been paid, or
declared and set aside for payment, on all Parity Preferred
Stock to the extent such dividends are cumulative; (iii) the
Corporation has paid or set aside all amounts, if any, then or
theretofore required to be paid or set aside for all purchase,
retirement, and sinking funds, if any, for any Parity Preferred
Stock; and (iv) the Corporation is not in default on any of its
obligations to redeem any Parity Preferred Stock.
(d) As long as any shares of PRIDES are outstanding,
dividends or other distributions may not be declared or paid on
any Parity Preferred Stock (other than dividends or other
distributions payable in Junior Stock and cash in lieu of
fractional shares in connection therewith), and the Corporation
may not purchase, redeem or otherwise acquire any Parity
Preferred Stock (except with any Junior Stock and cash in lieu
of fractional shares in connection therewith), unless either:
(a)(i) full dividends on Parity Preferred Stock have been paid,
or declared and set aside for payment, for all dividend periods
terminating at or before the date of such Parity Preferred Stock
dividend, distribution, purchase, redemption or other
acquisition payment to the extent such dividends are cumulative;
(ii) dividends in full for the current quarterly dividend period
have been paid, or declared and set aside for payment, on all
Parity Preferred Stock to the extent such dividends are
cumulative; (iii) the Corporation has paid or set aside all
amounts, if any, then or theretofore required to be paid or set
aside for all purchase, retirement, and sinking funds, if any,
for any Parity Preferred Stock; and (iv) the Corporation is not
in default on any of its obligations to redeem any Parity
Preferred Stock; or (b) with respect to the payment of dividends
only, any such dividends shall be declared and paid pro rata so
that the amounts of any dividends declared and paid per share of
PRIDES and each other share of Parity Preferred Stock shall in
all cases bear to each other the same ratio that accrued
dividends (including any accumulation with respect to unpaid
dividends for prior dividend periods, if such dividends are
cumulative) per share of PRIDES and such other shares of Parity
Preferred Stock bear to each other.
Section 3. Conversion or Redemption. (a) Unless
previously either redeemed or converted at the option of the
holder in accordance with the provisions of Section 3(c), on
December 31, 1997 (the "Mandatory Conversion Date"), each
outstanding share of PRIDES shall mandatorily convert
("Mandatory Conversion") into (i) shares of authorized Common
Stock at the PRIDES Common Equivalent Rate (as defined herein)
in effect on the Mandatory Conversion Date and (ii) the right to
receive cash in an amount equal to all accrued and unpaid
Preferred Dividends on such share of PRIDES (other than
previously declared dividends payable to a holder of record as
of a prior date) to but excluding the Mandatory Conversion Date,
whether or not declared, out of funds legally available for the
payment of Preferred Dividends, subject to the right of the
Corporation to redeem the shares of PRIDES on or after December
31, 1996 (the "Initial Redemption Date") and before the
Mandatory Conversion Date and subject to the conversion of the
shares of PRIDES at the option of the holder at any time before
the Mandatory Conversion Date. The "PRIDES Common Equivalent
Rate" shall initially be one share of Common Stock for each
share of PRIDES and shall be subject to adjustment as set forth
in Sections 3(d) and 3(e). Shares of PRIDES shall cease to be
outstanding on the Mandatory Conversion Date. The Corporation
shall make such arrangements as it deems appropriate for the
issuance of certificates representing shares of Common Stock and
for the payment of cash in respect of such accrued and unpaid
dividends, if any, or cash in lieu of fractional shares, if any,
in exchange for and contingent upon surrender of certificates
representing the shares of PRIDES, and the Corporation may defer
the payment of dividends on such shares of Common Stock and the
voting thereof until, and make such payment and voting
contingent upon, the surrender of certificates representing the
shares of PRIDES; provided, that the Corporation shall give the
holders of the shares of PRIDES such notice of any such actions
as the Corporation deems appropriate and upon surrender such
holders shall be entitled to receive such dividends declared and
paid, if any, on such shares of Common Stock subsequent to the
Mandatory Conversion Date.
(b)(i) Shares of PRIDES are not redeemable by the
Corporation before the Initial Redemption Date. At any time and
from time to time on or after that date until immediately before
the Mandatory Conversion Date, the Corporation shall have the
right to redeem, in whole or in part, the outstanding shares of
PRIDES (subject to the notice provisions set forth in Section
3(b)(iii)). Upon any such redemption, the Corporation shall
deliver to each holder thereof, in exchange for each such share
of PRIDES subject to redemption, the greater of:
(A) the number of shares of Common Stock equal to the
applicable PRIDES Call Price (as defined herein) in effect
on the redemption date divided by the Current Market Price
(as defined herein) of the Common Stock, determined as of
the second Trading Day (as defined herein) immediately
preceding the Notice Date (as defined herein); or
(B) .82 of a share of Common Stock (subject to
adjustment in the same manner as the PRIDES Optional
Conversion Rate (as defined herein) is adjusted).
Preferred Dividends on the shares of PRIDES shall cease to
accrue on and after the date fixed for their redemption.
The "PRIDES Call Price" of each share of PRIDES shall
be the sum of (x) $48.077 on and after the Initial Redemption
Date, to and including March 31, 1997; $47.870 on and after
April 1, 1997, to and including June 30, 1997; $47.663 on and
after July 1, 1997, to and including September 30, 1997; $47.457
on and after October 1, 1997, to and including November 30,
1997; and $47.25 on and after December 1, 1997, to and including
December 31, 1997; and (y) all accrued and unpaid Preferred
Dividends thereon to but not including the date fixed for
redemption (other than previously declared Preferred Dividends
payable to a holder of record as of a prior date). If fewer
than all the outstanding shares of PRIDES are to be called for
redemption, shares of PRIDES to be called shall be selected by
the Corporation from outstanding shares of PRIDES not previously
called by lot or pro rata (as nearly as may be) or by any other
method determined by the Board of Directors in its sole
discretion to be equitable.
(ii) The term "Current Market Price" per share of the
Common Stock on any date of determination means the lesser of
(x) the average of the Closing Prices (as defined herein) of the
Common Stock for the 15 consecutive Trading Days ending on and
including such date of determination, or (y) the Closing Price
of the Common Stock for such date of determination; provided,
however, that, with respect to any redemption of shares of
PRIDES, if any event resulting in an adjustment of the PRIDES
Common Equivalent Rate occurs during the period beginning on the
first day of such 15-day period and ending on the applicable
redemption date, the Current Market Price as determined pursuant
to the foregoing shall be appropriately adjusted to reflect the
occurrence of such event.
(iii) The Corporation shall provide notice of any
redemption of the shares of PRIDES to holders of record of the
shares of PRIDES to be called for redemption not less than 15
nor more than 60 days before the date fixed for redemption. Any
such notice shall be provided by mail, sent to the holders of
record of the shares of PRIDES to be called at each such
holder's address as it appears on the stock register of the
Corporation, first class postage prepaid; provided, however,
that failure to give such notice or any defect therein shall not
affect the validity of the proceeding for redemption of any
shares of PRIDES to be redeemed except as to the holder to whom
the Corporation has failed to give such notice or whose notice
was defective. A public announcement of any call for redemption
shall be made by the Corporation before, or at the time of, the
mailing of such notice of redemption. The term "Notice Date"
with respect to any notice given by the Corporation in
connection with a redemption of the shares of PRIDES means the
date on which first occurs either the public announcement of
such redemption or the commencement of mailing of the notice to
the holders of shares of PRIDES, in each case pursuant to this
Section 3(b)(iii).
Each such notice shall state, as appropriate, the
following and may contain such other information as the
Corporation deems advisable:
(A) the redemption date;
(B) that all outstanding shares of PRIDES are to be
redeemed or, in the case of a redemption of fewer than all
outstanding shares of PRIDES, the number of such shares
held by such holder to be redeemed;
(C) the PRIDES Call Price, the number of shares of
Common Stock deliverable upon redemption of each share of
PRIDES to be redeemed and the Current Market Price used to
calculate such number of shares of Common Stock;
(D) the place or places where certificates for such
shares are to be surrendered for redemption; and
(E) that dividends on the shares of PRIDES to be
redeemed shall cease to accrue on and after such redemption
date (except as otherwise provided herein).
(iv) The Corporation's obligation to deliver shares
of Common Stock and provide funds upon redemption in accordance
with this Section 3(b) shall be deemed fulfilled if, on or
before a redemption date, the Corporation shall deposit with a
bank or trust company, or an affiliate of a bank or trust
company, having an office or agency in New York, New York and
having (or such affiliate having) a combined capital and surplus
of at least $50,000,000 according to its last published
statement of condition, or shall set aside or make other
reasonable provision for the issuance of, such number of shares
of Common Stock as are required to be delivered by the
Corporation pursuant to this Section 3(b) upon the occurrence of
the related redemption of shares of PRIDES and for the payment
of cash in lieu of the issuance of fractional share amounts and
accrued and unpaid dividends payable in cash on the shares of
PRIDES to be redeemed as required by this Section 3(b), in trust
for the account of the holders of such shares of PRIDES to be
redeemed (and so as to be and continue to be available
therefor), with irrevocable instructions and authority to such
bank or trust company that such shares and funds be delivered
upon redemption of the shares of PRIDES so called for
redemption. Any interest accrued on such funds shall be paid to
the Corporation from time to time. Any shares of Common Stock
or funds so deposited and unclaimed at the end of three years
from such redemption date shall be repaid and released to the
Corporation, after which the holder or holders of such shares of
PRIDES so called for redemption shall look only to the
Corporation for delivery of shares of Common Stock and the
payment of any other funds due in connection with the redemption
of the shares of PRIDES.
(v) Each holder of shares of PRIDES called for
redemption must surrender the certificates evidencing such
shares (properly endorsed or assigned for transfer, if the Board
of Directors shall so require and the notice shall so state) to
the Corporation at the place designated in the notice of such
redemption and shall thereupon be entitled to receive
certificates evidencing shares of Common Stock and to receive
any funds payable pursuant to this Section 3(b) following such
surrender and following the date of such redemption. In case
fewer than all the shares represented by any such surrendered
certificate are called for redemption, a new certificate shall
be issued at the expense of the Corporation representing the
unredeemed shares. If such notice of redemption shall have been
given, and if on the date fixed for redemption shares of Common
Stock and funds necessary for the redemption shall have been
irrevocably either set aside by the Corporation separate and
apart from its other funds or assets in trust for the account of
the holders of the shares to be redeemed (and so as to be and
continue to be available therefor) or deposited with a bank or
trust company or an affiliate thereof as provided herein or the
Corporation shall have made other reasonable provision therefor,
then notwithstanding that the certificates evidencing any shares
of PRIDES so called for redemption shall not have been
surrendered, the shares represented thereby so called for
redemption shall be deemed no longer outstanding and Preferred
Dividends with respect to the shares so called for redemption
and all rights with respect to the shares so called for
redemption shall forthwith on and after such date cease and
terminate (unless the Corporation defaults on the payment of the
redemption price), except for (i) the rights of the holders to
receive the shares of Common Stock and funds, if any, payable
pursuant to this Section 3(b) without interest upon surrender of
their certificates therefor and (ii) the right of the holders,
pursuant to Section 3(c) to convert the shares of PRIDES called
for redemption until immediately before the close of business on
any redemption date; provided, however, that holders of shares
of PRIDES at the close of business on a record date for any
payment of Preferred Dividends shall be entitled to receive the
Preferred Dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the redemption of such
shares following such record date and before the Dividend
Payment Date. Holders of shares of PRIDES that are redeemed
shall not be entitled to receive dividends declared and paid on
such shares of Common Stock, and such shares of Common Stock
shall not be entitled to vote, until such shares of Common Stock
are issued upon the surrender of the certificates representing
such shares of PRIDES and upon such surrender such holders shall
be entitled to receive such dividends declared and paid on such
shares of Common Stock subsequent to such redemption date.
(c) Shares of PRIDES are convertible, in whole or in
part, at the option of the holders thereof ("Optional
Conversion"), at any time before the Mandatory Conversion Date,
unless previously redeemed, into shares of Common Stock at a
rate of .82 of a share of Common Stock for each share of PRIDES
(the "PRIDES Optional Conversion Rate"), subject to adjustment
as set forth below. The right of Optional Conversion of shares
of PRIDES called for redemption shall terminate immediately
before the close of business on any redemption date with respect
to such shares.
Optional Conversion of shares of PRIDES may be
effected by delivering certificates evidencing such shares of
PRIDES, together with written notice of conversion and a proper
assignment of such certificates to the Corporation or in blank
(and, if applicable, cash payment of an amount equal to the
Preferred Dividend attributable to the current quarterly
dividend period payable on such shares), to the office of the
transfer agent for the shares of PRIDES or to any other office
or agency maintained by the Corporation for that purpose and
otherwise in accordance with Optional Conversion procedures
established by the Corporation. Each Optional Conversion shall
be deemed to have been effected immediately before the close of
business on the date on which the foregoing requirements shall
have been satisfied. The Optional Conversion shall be at the
PRIDES Optional Conversion Rate in effect at such time and on
such date.
Holders of shares of PRIDES at the close of business
on a record date for any payment of declared Preferred Dividends
shall be entitled to receive the Preferred Dividend payable on
such shares of PRIDES on the corresponding Dividend Payment Date
notwithstanding the Optional Conversion of such shares of PRIDES
following such record date and before such Dividend Payment
Date. However, shares of PRIDES surrendered for Optional
Conversion after the close of business on a record date for any
payment of declared Preferred Dividends and before the opening
of business on the next succeeding Dividend Payment Date must be
accompanied by payment in cash of an amount equal to the
Preferred Dividends attributable to the current quarterly
dividend period payable on such date (unless such shares of
PRIDES are subject to redemption on a redemption date between
such record date established for such Dividend Payment Date and
such Dividend Payment Date). Except as provided above, upon any
Optional Conversion of shares of PRIDES, the Corporation shall
make no payment of or allowance for unpaid Preferred Dividends,
whether or not in arrears, on such shares of PRIDES as to which
Optional Conversion has been effected or for previously declared
dividends or distributions on the shares of Common Stock issued
upon Optional Conversion.
(d) The PRIDES Common Equivalent Rate and the PRIDES
Optional Conversion Rate are each subject to adjustment from
time to time as provided below in this paragraph (d).
(i) If the Corporation shall pay a stock dividend or
make a distribution with respect to its Common Stock in
shares of Common Stock (including by way of
reclassification of any shares of its Common Stock), the
PRIDES Common Equivalent Rate and the PRIDES Optional
Conversion Rate in effect at the opening of business on the
day following the date fixed for the determination by
stockholders entitled to receive such dividend or other
distribution shall each be increased by multiplying such
PRIDES Common Equivalent Rate and PRIDES Optional
Conversion Rate by a fraction of which the numerator shall
be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination, immediately before such dividend or
distribution, plus the total number of shares of Common
Stock constituting such dividend or other distribution, and
of which the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the
date fixed for such determination, immediately before such
dividend or distribution, such increase to become effective
immediately after the opening of business on the day
following the date fixed for such determination. For the
purposes of this clause (i), the number of shares of Common
Stock at any time outstanding shall not include shares held
in the treasury of the Corporation but shall include shares
issuable in respect of certificates issued in lieu of
fractions of shares of Common Stock.
(ii) In case outstanding shares of Common Stock shall
be subdivided or split into a greater number of shares of
Common Stock, the PRIDES Common Equivalent Rate and the
PRIDES Optional Conversion Rate in effect at the opening of
business on the day following the day upon which such
subdivision becomes effective shall each be proportionately
increased, and, conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of
shares of Common Stock, the PRIDES Common Equivalent Rate
and the PRIDES Optional Conversion Rate in effect at the
opening of business on the day following the day upon which
such combination becomes effective shall each be
proportionately reduced, such increases or reductions, as
the case may be, to become effective immediately after the
opening of business on the day following the day upon which
such subdivision or combination becomes effective.
(iii) If the Corporation shall, after the date of
this Certificate of Designations, issue rights or warrants
to all holders of its Common Stock entitling them (for a
period not exceeding 45 days from the date of such
issuance) to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market
Price of the Common Stock (determined pursuant to Section
3(b)(ii)) on the record date for the determination of
stockholders entitled to receive such rights or warrants,
then in each case the PRIDES Common Equivalent Rate and the
PRIDES Optional Conversion Rate shall each be adjusted by
multiplying the PRIDES Common Equivalent Rate and the
PRIDES Optional Conversion Rate in effect on such record
date by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants, immediately before
such issuance, plus the number of additional shares of
Common Stock offered for subscription or purchase pursuant
to such rights or warrants, and of which the denominator
shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights or warrants,
immediately before such issuance, plus the number of shares
of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so offered for
subscription or purchase pursuant to such rights or
warrants would purchase at such Current Market Price
(determined by multiplying such total number of shares by
the exercise price of such rights or warrants and dividing
the product so obtained by such Current Market Price).
Shares of Common Stock held by the Corporation or by
another corporation of which a majority of the shares
entitled to vote in the election of directors are held,
directly or indirectly, by the Corporation shall not be
deemed to be outstanding for purposes of such computation.
Such adjustment shall become effective at the opening of
business on the business day next following the record date
for the determination of stockholders entitled to receive
such rights or warrants. To the extent that shares of
Common Stock are not delivered after the expiration of such
rights or warrants, the PRIDES Common Equivalent Rate and
the PRIDES Optional Conversion Rate shall each be
readjusted to the PRIDES Common Equivalent Rate and the
PRIDES Optional Conversion Rate which would then be in
effect had the adjustments made after the issuance of such
rights or warrants been made upon the basis of issuance of
rights or warrants in respect of only the number of shares
of Common Stock actually delivered.
(iv) If the Corporation shall pay a dividend or make
a distribution to all holders of its Common Stock
consisting of evidences of its indebtedness, cash or other
assets (including shares of capital stock of the
Corporation other than Common Stock but excluding any cash
dividends or distributions, other than Extraordinary Cash
Distributions (as defined herein) and dividends referred to
in clauses (i) and (ii) above), or shall issue to all
holders of its Common Stock rights or warrants to subscribe
for or purchase any of its securities (other than those
referred to in clause (iii) above), then in each such case,
the PRIDES Common Equivalent Rate and the PRIDES Optional
Conversion Rate shall each be adjusted by multiplying the
PRIDES Common Equivalent Rate and the PRIDES Optional
Conversation Rate in effect on the record date for such
dividend or distribution or for the determination of
stockholders entitled to receive such rights or warrants,
as the case may be, by a fraction of which the numerator
shall be the Current Market Price per share of the Common
Stock (determined pursuant to Section 3(b)(ii) on such
record date), and of which the denominator shall be such
Current Market Price per share of Common Stock less either
(i) the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) on such
record date of the portion of the assets or evidences of
indebtedness so distributed, or of such subscription rights
or warrants, applicable to one share of Common Stock, or
(ii) if applicable, the amount of the Extraordinary Cash
Distributions. Such adjustment shall become effective on
the opening of business on the business day next following
the record date for such dividend or distribution or for
the determination of holders entitled to receive such
rights or warrants, as the case may be.
(v) Any shares of Common Stock issuable in payment of
a dividend or other distribution shall be deemed to have
been issued immediately before the close of business on the
record date for such dividend or other distribution for
purposes of calculating the number of outstanding shares of
Common Stock under this Section 3.
(vi) Anything in this Section 3 notwithstanding, the
Corporation shall be entitled (but shall not be required)
to make such upward adjustments in the PRIDES Common
Equivalent Rate, the PRIDES Optional Conversion Rate and
the PRIDES Call Price in addition to those set forth by
this Section 3, as the Corporation, in its sole discretion,
shall determine to be advisable, in order that any stock
dividends, subdivision of stock, distribution of rights to
purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock (or any
transaction that could be treated as any of the foregoing
transactions pursuant to Section 305 of the Internal
Revenue Code of 1986, as amended) hereafter made by the
Corporation to its stockholders shall not be taxable. The
term "Extraordinary Cash Distribution" means, with respect
to any consecutive 12-month period, all cash dividends and
cash distributions on the Common Stock during such period
(other than cash dividends and cash distributions for which
a prior adjustment to the PRIDES Common Equivalent Rate and
PRIDES Optional Conversion Rate was previously made) to the
extent such dividends and distributions exceed, on a per
share of Common Stock basis, 10% of the average daily
Closing Price of the Common Stock over such period.
(vii) In any case in which this Section 3(d) shall
require that an adjustment as a result of any event become
effective at the opening of business on the business day
next following a record date and the date fixed for
conversion pursuant to Section 3(a) or redemption pursuant
to Section 3(b) on and after such record date, but before
the occurrence of such event, the Corporation may, in its
sole discretion, elect to defer the following until after
the occurrence of such event: (A) issuing to the holder of
any shares of PRIDES surrendered for conversion or
redemption the fractional shares of Common Stock issuable
before giving effect to such adjustment; and (B) paying to
such holder any amount in cash in lieu of a fractional
share of Common Stock pursuant to Section 4.
(viii) All adjustments to the PRIDES Common
Equivalent Rate and the PRIDES Optional Conversion Rate
shall be calculated to the nearest 1/100th of a share of
Common Stock. No adjustment in the PRIDES Common
Equivalent Rate or in the PRIDES Optional Conversion Rate
shall be required unless such adjustment would require an
increase or decrease of at least one percent therein;
provided, however, that any adjustments which by reason of
this Section 3(d) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All adjustments to the PRIDES Common
Equivalent Rate and PRIDES Optional Conversion Rate shall
be made successively.
(ix) At least 10 business days before taking any
action that could result in an adjustment affecting the
PRIDES Common Equivalent Rate or the PRIDES Optional
Conversion Rate such that the conversion price (for
purposes of this section, an amount equal to the PRIDES
Call Price divided by the PRIDES Common Equivalent Rate or
the PRIDES Optional Conversion Rate, respectively, as in
effect from time to time) would be below the then par value
of the Common Stock, the Corporation shall take any
corporate action which may, in the opinion of its counsel,
be necessary in order that the Corporation may validly and
legally issue fully paid and nonassessable shares of Common
Stock at the PRIDES Common Equivalent Rate or the PRIDES
Optional Conversion Rate as so adjusted.
(x) Before redeeming any shares of PRIDES, the
Corporation shall take any corporate action which may, in
the opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock upon such redemption.
(e) In case of any consolidation or merger to which
the Corporation is a party (other than a consolidation or merger
in which the Corporation is the surviving or continuing
corporation and in which the shares of Common Stock outstanding
immediately before the merger or consolidation remain
unchanged), or in the case of any sale or transfer to another
corporation of the property of the Corporation as an entirety or
substantially as an entirety, or in the case of a statutory
exchange of securities with another corporation (other than in
connection with a merger or acquisition), each share of PRIDES
shall, after consummation of such transaction, be subject to (i)
conversion at the option of the holder into the kind and amount
of securities, cash, or other property receivable upon
consummation of such transaction by a holder of the number of
shares of Common Stock into which such share of PRIDES might
have been converted immediately before consummation of such
transaction, (ii) conversion on the Mandatory Conversion Date
into the kind and amount of securities, cash, or other property
receivable upon consummation of such transaction by a holder of
the number of shares of Common Stock into which such share of
PRIDES would have been converted if the conversion on the
Mandatory Conversion Date had occurred immediately before the
date of consummation of such transaction, plus the right to
receive cash in an amount equal to all accrued and unpaid
dividends on such share of PRIDES (other than previously
declared dividends payable to a holder of record as of a prior
date), and (iii) redemption on any redemption date in exchange
for the kind and amount of securities, cash, or other property
receivable upon consummation of such transaction by a holder of
the number of shares of Common Stock that would have been
issuable at the PRIDES Call Price in effect on such redemption
date upon a redemption of such share of PRIDES immediately
before consummation of such transaction, assuming that, if the
Notice Date for such redemption is not before such transaction,
the Notice Date had been the date of such transaction; and
assuming in each case that such holder of shares of Common Stock
failed to exercise rights of election, if any, as to the kind or
amount of securities, cash, or other property receivable upon
consummation of such transaction (provided that, if the kind or
amount of securities, cash, or other property receivable upon
consummation of such transaction is not the same for each
non-electing share, then the kind and amount of securities,
cash, or other property receivable upon consummation of such
transaction for each non-electing share shall be deemed to be
the kind and amount so receivable per share by a plurality of
the non-electing shares). The kind and amount of securities
into or for which the shares of PRIDES shall be convertible or
redeemable after consummation of such transaction shall be
subject to adjustment as described in Section 3(d) following the
date of consummation of such transaction. The Corporation may
not become a party to any such transaction unless the terms
thereof are consistent with the foregoing.
(f) Whenever the PRIDES Common Equivalent Rate and
PRIDES Optional Conversion Rate are adjusted as provided in
Section 3(d), the Corporation shall:
(i) forthwith compute the adjusted PRIDES Common
Equivalent Rate and PRIDES Optional Conversion Rate in
accordance with this Section 3 and prepare a certificate
signed by the Chief Financial Officer, any Vice President,
the Treasurer or the Controller of the Corporation setting
forth the adjusted PRIDES Common Equivalent Rate and the
PRIDES Optional Conversion Rate, the method of calculation
thereof in reasonable detail and the facts requiring such
adjustment and upon which such adjustment is based, which
certificate shall be conclusive, final and binding evidence
of the correctness of the adjustment, and shall file such
certificate forthwith with the transfer agent for the
shares of the PRIDES and the Common Stock;
(ii) make a prompt public announcement stating that
the PRIDES Common Equivalent Rate and PRIDES Optional
Conversion Rate have been adjusted and setting forth the
adjusted PRIDES Common Equivalent Rate and PRIDES Optional
Conversion Rate;
(iii) mail a notice stating that the PRIDES Common
Equivalent Rate and the PRIDES Optional Conversion Rate
have been adjusted, the facts requiring such adjustment and
upon which such adjustment is based and setting forth the
adjusted PRIDES Common Equivalent Rate and PRIDES Optional
Conversion Rate, to the holders of record of the
outstanding shares of PRIDES, at or prior to the time the
Corporation mails an interim statement, if any, to its
stockholders covering the fiscal quarter period during
which the facts requiring such adjustment occurred, but in
any event within 45 days of the end of such fiscal quarter
period.
(g) In case, at any time while any of the shares of
PRIDES are outstanding,
(i) the Corporation shall declare a dividend (or any
other distribution) on the Common Stock, excluding any cash
dividends other than Extraordinary Cash Distributions; or
(ii) the Corporation shall authorize the issuance to
all holders of the Common Stock of rights or warrants to
subscribe for or purchase shares of the Common Stock or of
any other subscription rights or warrants; or
(iii) the Corporation shall authorize any
reclassification of the Common Stock (other than a
subdivision or combination thereof) or any consolidation or
merger to which the Corporation is a party and for which
approval of any stockholders of the Corporation is required
(except for a merger of the Corporation into one of its
subsidiaries solely for the purpose of changing the
corporate domicile of the Corporation to another state of
the United States and in connection with which there is no
substantive change in the rights or privileges of any
securities of the Corporation other than changes resulting
from differences in the corporate statutes of the state the
Corporation was then domiciled in and the new state of
domicile), or the sale or transfer of all or substantially
all of the assets of the Corporation;
then the Corporation shall cause to be filed at each office or
agency maintained for the purpose of conversion of the shares of
PRIDES, and shall cause to be mailed to the holders of shares of
PRIDES at their last addresses as they shall appear on the stock
register of the Corporation, at least 10 business days before
the date hereinafter specified in clause (A) or (B) below (or
the earlier of the dates hereinafter specified, in the event
that more than one date is specified), a notice stating (A) the
date on which a record is to be taken for the purpose of such
dividend, distribution, rights or warrants, or, if a record is
not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined, or (B) the date on
which any such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property (including
cash), if any, deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation
or winding up. The failure to give or receive the notice
required by this paragraph (g) or any defect therein shall not
affect the legality or validity of any such dividend,
distribution, right or warrant or other action.
Section 4. No Fractional Shares. No fractional
shares of Common Stock shall be issued upon redemption or
conversion of any shares of the PRIDES. In lieu of any
fractional share otherwise issuable in respect of the aggregate
number of shares of the PRIDES of any holder that are redeemed
or converted on any redemption date or upon Mandatory Conversion
or Optional Conversion, such holder shall be entitled to receive
an amount in cash (computed to the nearest cent) equal to the
same fraction of the (i) Current Market Price of the Common
Stock (determined as of the second Trading Day immediately
preceding the Notice Date) in the case of redemption, or (ii)
Closing Price of the Common Stock determined (A) as of the fifth
Trading Day immediately preceding the Mandatory Conversion Date,
in the case of Mandatory Conversion, or (B) as of the second
Trading Day immediately preceding the effective date of
conversion, in the case of an Optional Conversion by a holder.
If more than one share of PRIDES shall be surrendered for
conversion or redemption at one time by or for the same holder,
the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the
aggregate number of shares of the PRIDES so surrendered or
redeemed.
Section 5. Reservation of Common Stock. The
Corporation shall at all times reserve and keep available out of
its authorized and unissued Common Stock, solely for issuance
upon the conversion or redemption of shares of PRIDES, as herein
provided, free from preemptive rights, such maximum number of
shares of Common Stock as shall from time to time be issuable
upon the Mandatory Conversion or Optional Conversion or
redemption of all the shares of PRIDES then outstanding.
Section 6. Definitions. As used in this Certificate
of Designations:
(i) the term "business day" shall mean any day other
than a Saturday, Sunday, or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close;
(ii) the term "Closing Price", on any day, shall mean
the last sale price as shown on the New York Stock Exchange
Composite Tape on such day, or, in case no such sale takes
place on such day, the average of the reported closing bid
and asked prices regular way on the New York Stock
Exchange, or, if the Common Stock is not listed or admitted
to trading on such Exchange, on the principal national
securities exchange on which the Common Stock is listed or
admitted to trading, or, if not listed or admitted to
trading on any national securities exchange, the average of
the closing bid and asked prices of the Common Stock on the
over-the-counter market on the day in question as reported
by the National Association of Securities Dealers, Inc.
Automated Quotation System, or a similar generally accepted
reporting service, or if not so available in such manner,
as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for
that purpose;
(iii) the term "record date" shall be such date as
from time to time fixed by the Board of Directors with
respect to the receipt of dividends, the receipt of a
redemption price upon redemption or the taking of any
action or exercise of any voting rights permitted hereby;
and
(iv) the term "Trading Day" shall mean a date on
which the New York Stock Exchange (or any successor to such
Exchange) is open for the transaction of business.
Section 7. Payment of Taxes. The Corporation shall
pay any and all documentary, stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of
Common Stock on the redemption or conversion of shares of PRIDES
pursuant to Section 3; provided, however, that the Corporation
shall not be required to pay any tax which may be payable in
respect of any registration of transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of
the registered holder of shares of PRIDES redeemed or converted
or to be redeemed or converted, and no such issue or delivery
shall be made unless and until the person requesting such issue
has paid to the Corporation the amount of any such tax or has
established, to the satisfaction of the Corporation, that such
tax has been paid.
Section 8. Liquidation Rights. In the event of any
voluntary or involuntary liquidation, dissolution, or winding up
of the Corporation, and subject to the rights of holders of any
other series of Preferred Stock, the holders of outstanding
shares of PRIDES are entitled to receive the sum of $47.25 per
share, plus an amount equal to any accrued and unpaid Preferred
Dividends thereon, out of the assets of the Corporation
available for distribution to stockholders, before any
distribution of assets is made to holders of Second Preferred
Stock, Common Stock or any other capital stock ranking junior to
the shares of PRIDES upon liquidation, dissolution, or winding
up. If upon any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, the assets of the
Corporation are insufficient to permit the payment of the full
preferential amounts payable with respect to the shares of
PRIDES and all other series of Parity Preferred Stock, the
holders of shares of PRIDES and of all other series of Parity
Preferred Stock shall share ratably in any distribution of
assets of the Corporation in proportion to the full respective
preferential amounts to which they are entitled. After payment
of the full amount of the liquidating distribution to which they
are entitled, the holders of shares of PRIDES shall not be
entitled to any further participation in any distribution of
assets by the Corporation. A consolidation or merger of the
Corporation with or into one or more other corporations (whether
or not the Corporation is the corporation surviving such
consolidation or merger), or a sale, lease or exchange of all or
substantially all of the assets of the Corporation shall not be
deemed to be a voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation.
Section 9. Voting Rights. (a) The holders of shares
of PRIDES shall have the right with the holders of Common Stock
to vote in the election of directors and upon each other matter
coming before any meeting of the holders of Common Stock on the
basis of 4/5 of a vote for each share of PRIDES held. The
holders of shares of PRIDES and the holders of Common Stock
shall vote together as one class on such matters except as
otherwise provided by law or by the Restated Certificate of
Incorporation.
(b) In the event that dividends on the shares of
PRIDES or any other series of Preferred Stock shall be in
arrears and unpaid for six quarterly dividend periods, or if any
series of Preferred Stock (other than the PRIDES) shall be
entitled for any other reason to exercise voting rights,
separate from the Common Stock, to elect any directors of the
Corporation ("Preferred Stock Directors"), the holders of the
shares of PRIDES (voting separately as a class with holders of
all other series of Preferred Stock upon which like voting
rights have been conferred and are exercisable), with each share
of PRIDES entitled to one vote on this and other matters in
which Preferred Stock votes as a group, shall be entitled to
vote for the election of two directors of the Corporation, such
directors to be in addition to the number of directors
constituting the Board of Directors immediately before the
accrual of such right. Such right, when vested, shall continue
until all cumulative dividends accumulated and payable on the
shares of PRIDES and such other series of Preferred Stock shall
have been paid in full and the right of any other series of
Preferred Stock to exercise voting rights, separate from the
Common Stock, to elect Preferred Stock Directors shall terminate
or have terminated, and, when so paid and any such termination
occurs or has occurred, such right of the holders of the shares
of PRIDES shall cease. The term of office of any director
elected by the holders of the shares of PRIDES and such other
series shall terminate on the earlier of (i) the next annual
meeting of stockholders at which a successor shall have been
elected and qualified or (ii) the termination of the right of
holders of the shares of PRIDES and such other series to vote
for such directors.
(c) The Corporation shall not, without the approval
of the holders of at least 66-2/3 percent of the shares of
PRIDES then outstanding: (i) amend, alter, or repeal any of the
provisions of the Restated Certificate of Incorporation or
By-Laws of the Corporation so as to affect adversely the powers,
preferences or rights of the holders of the shares of PRIDES
then outstanding or reduce the minimum time for any required
notice to which the holders of the shares of PRIDES then
outstanding may be entitled (an amendment of the Restated
Certificate of Incorporation to authorize or create, or to
increase the authorized amount of, Junior Stock or any stock of
any class ranking on a parity with the PRIDES being deemed not
to affect adversely the powers, preferences, or rights of the
holders of the shares of PRIDES); (ii) authorize or create, or
increase the authorized amount of, any capital stock, or any
security convertible into capital stock of any class, ranking
prior to the shares of PRIDES either as to the payment of
dividends or the distribution of assets upon liquidation,
dissolution or winding up of the Corporation; or (iii) merge or
consolidate with or into any other corporation, unless each
holder of shares of PRIDES immediately preceding such merger or
consolidation shall receive or continue to hold in the resulting
corporation the same number of shares, with substantially the
same rights and preferences, as correspond to the shares of
PRIDES so held.
(d) The Corporation shall not, without the approval
of the holders of at least a majority of the shares of PRIDES
then outstanding: (i) increase the authorized number of shares
of Preferred Stock; or (ii) create any other class or classes of
capital stock of the Corporation ranking on a parity with the
Preferred Stock, either as to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding
up of the Corporation, or create any stock or other security
convertible into or exchangeable for or evidencing the right to
purchase any stock of such other class ranking on a parity with
the Preferred Stock, or increase the authorized number of shares
of any such other class or amount of such other stock or
security.
(e) Notwithstanding the provisions set forth in
Sections 9(c) and 9(d), no such approval described therein of
the holders of the shares of PRIDES shall be required if, at or
before the time when such amendment, alteration, or repeal is to
take effect or when the authorization, creation, increase or
issuance of any such prior or parity stock or convertible
security is to be made, or when such consolidation or merger,
voluntary liquidation, dissolution, or winding up, sale, lease,
conveyance, purchase, or redemption is to take effect, as the
case may be, provision is made for the redemption of all shares
of PRIDES at the time outstanding.
IN WITNESS WHEREOF, Reynolds Metals Company has caused this
certificate to be signed and attested this 20th day of January, 1994.
REYNOLDS METALS COMPANY
By: Henry S. Savedge, Jr.
Name: Henry S. Savedge, Jr.
Title: Executive Vice President and
Chief Financial Officer
Attest:
D. Michael Jones
Name: D. Michael Jones
Title: Vice President, General
Counsel and Secretary