RESTATED
CERTIFICATE OF INCORPORATION
of
UNITED TECHNOLOGIES CORPORATION
Pursuant to Section 245
of the General Corporation Law
of the State of Delaware
==============
Original Certificate of Incorporation filed
with the Secretary of State of the State
of Delaware July 21, 1934
and the name under which the Corporation
was originally incorporated is
United Aircraft Corporation
==============
FIRST: The name of the Corporation is UNITED TECHNOLOGIES CORPORATION.
SECOND: Its registered office or place of business in the State of
Delaware is to be located at Corporation Trust Center, 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name of its
registered agent is The Corporation Trust Company and the address of the
said registered agent is Corporation Trust Center, 1209 Orange Street, in
the said City of Wilmington.
THIRD: The nature of the business, or objects or purposes to be
transacted, promoted or carried on, are those necessary to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock of all classes which the
Corporation shall have authority to issue is 1,250,000,000 shares, of which
250,000,000 shares shall be Preferred Stock of the par value of $1 each
(hereinafter called "Preferred Stock") and 1,000,000,000 shares shall be
Common Stock of the par value of $1 each (hereinafter called "Common
Stock").
The designations and the powers, preferences and rights and the
qualifications, limitations or restrictions thereof of the shares of each
class are as follows:
1. The Preferred Stock may be issued from time to time in one or more
series, the shares of each series to have such voting powers, full or
limited, and such designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions thereof as are stated and expressed herein or in the
resolution or resolutions providing for the issue of such series,
adopted by the Board of Directors as hereinafter provided.
2. Authority is hereby expressly granted to the Board of Directors of
the Corporation, subject to the provisions of this Article Fourth and to
the limitations prescribed by law, to authorize the issue of one or more
series of Preferred Stock and with respect to each such series to fix by
resolution or resolutions providing for the issue of such series the
voting powers, full or limited, if any, of the shares of such series and
the designations, preferences and relative, participating, optional or
other special rights and the qualifications, limitations or restrictions
thereof. The authority of the Board of Directors with respect to each
series shall include, but not be limited to, the determination or fixing
of the following:
(a) The designation of such series.
(b) The dividend rate of such series, the conditions and dates
upon which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or
classes of stock, and whether such dividends shall be cumulative or
non-cumulative.
(c) Whether the shares of such series shall be subject to
redemption by the Corporation and, if made subject to such redemption,
the times, prices and other terms and conditions of such redemption.
(d) The terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series.
(e) Whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other class or
classes or of any other series of any class or classes of stock of the
Corporation, and, if provision be made for conversion or exchange,
the
times, prices, rates, adjustments, and other terms and conditions of
such conversion or exchange.
(f) The extent, if any, to which the holders of the shares of
such series shall be entitled to vote with respect to the election of
directors or otherwise.
(g) The restrictions, if any, on the issue or reissue or any
additional Preferred Stock.
(h) The rights of the holders of the shares of such series upon
the dissolution of, or upon the distribution of assets of, the
Corporation.
3. Except as otherwise required by law and except for such voting
powers with respect to the election of directors or other matters as may
be stated in the resolution or resolutions of the Board of Directors
providing for the issue of any series of Preferred Stock, the holders of
any such series shall have no voting power whatsoever. Subject to such
restrictions as may be stated in the resolution or resolutions of the
Board of Directors providing for the issue of any series of Preferred
Stock, any amendment to the Certificate of Incorporation which shall
increase or decrease the authorized stock of any class or classes may be
adopted by the affirmative vote of the holders of a majority of the
outstanding shares of the voting stock of the Corporation.
4. No holder of stock of any class of the Corporation shall as such
holder 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 the Corporation, issued or sold, or to any right of
subscription to, or to any warrant or option for the purchase of any
thereof, other than such (if any) as the Board of Directors of the
Corporation, in its discretion, may determine from time to time.
5. The Corporation may from time to time issue and dispose of any of
the authorized and unissued shares of Common Stock or of Preferred Stock
for such consideration, not less than its par value, as may be fixed
from time to time by the Board of Directors, without action by the
stockholders. The Board of Directors may provide for payment therefor
to be received by the Corporation in cash, property or services. Any
and all such shares of the Preferred or Common Stock of the Corporation
the issuance of which has been so authorized, and for which
consideration so fixed by the Board of Directors has been paid or
delivered, shall be deemed full paid stock and shall not be liable to
any further call or assessment thereon.
Certificate of Designation
of
Series A ESOP Convertible Preferred Stock
The Board of Directors authorized the series of Preferred Stock
hereinafter provided for and caused adoption of the following resolution
creating a series of 20,000,000 shares of Preferred Stock, par value $1.00
per share, designated as Series A ESOP Convertible Preferred Stock:
RESOLVED that, pursuant to the authority vested in the Board of
Directors of the Company, in accordance with the provisions of its Restated
Certificate of Incorporation, a series of Preferred Stock of the Company
be, and it hereby is, created, and that the designation and amount thereof
and the voting powers, preferences and relative, participating, optional or
other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
SECTION 1. Designation and Amount; Special Purpose Restricted Transfer
Issue.
A. The shares of this series of Preferred Stock shall be designated
as Series A ESOP Convertible Preferred Stock ("Series A Preferred Stock")
and the number of shares constituting such series shall be 20,000,000.
B. Shares of Series A Preferred Stock shall be issued only to a
trustee acting on behalf of any employee stock ownership plan or trust
or other similar employee benefit plan or trust maintained by the
Company or by any of its affiliates (the "ESOP"). In the event of any
transfer of shares of Series A Preferred Stock to any person other than
any such plan trustee, the shares of Series A Preferred Stock so
transferred, upon such transfer and without any further action by the
Company or the holder, shall be automatically converted into shares of
Common Stock on the terms otherwise provided for the conversion of
shares of Series A Preferred Stock into shares of Common Stock pursuant
to Section 5 hereof and no such transferee shall have any of the voting
powers, preferences and relative, participating, optional or special
rights ascribed to shares of Series A Preferred Stock hereunder but,
rather, only the powers and rights pertaining to the Common Stock into
which such shares of Series A Preferred Stock shall be so converted.
Certificates representing shares of Series A Preferred Stock shall be
legended to reflect such restrictions on transfer. Notwithstanding the
foregoing provisions of this paragraph B of Section 1, shares of Series
A Preferred Stock (i) may be converted into shares of Common Stock as
provided by Section 5 hereof and the shares of Common Stock issued upon
such conversion may be transferred by the holder thereof as permitted by
law and (ii) shall be redeemable by the Company upon the terms and
conditions provided by Sections 6, 7 and 8 hereof.
SECTION 2. Dividends and Distributions.
A. Subject to the provisions for adjustment hereinafter set forth,
the holders of shares of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available therefor, cumulative preferred dividends in cash
("Preferred Dividends") in an amount equal to $4.80 per share per annum,
and no more, payable quarterly on September 10, December 10, March 10
and June 10 of each year (each a "Dividend Payment Date") commencing on
September 10, 1989, to holders of record at the start of business on
such Dividend Payment Date. Preferred Dividends shall begin to accrue
on outstanding shares of Series A Preferred Stock from the date of
issuance of such shares of Series A Preferred Stock. Preferred
Dividends shall accrue on a daily basis whether or not the Company shall
have earnings or surplus at the time, but Preferred Dividends accrued on
the shares of Series A Preferred Stock for any period less than a full
quarterly period between Dividend Payment Dates shall be computed on the
basis of a 360-day year of 30-day months. A pro-rated dividend payment
based on the rate of $4.80 per annum per share shall accrue for the
period from the date of issuance until September 10, 1989. Accumulated
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. So long as any Series A Preferred Stock shall be outstanding, no
dividend shall be declared or paid or set apart for payment on any
other series of stock ranking on a parity with the Series A Preferred
Stock as to dividends, unless there shall also be or have been declared
and paid or set apart for payment on the Series A Preferred Stock, like
dividends for all dividend payment periods of the Series A Preferred
Stock ending on or before the dividend payment date of such parity
stock, ratably in proportion to the respective amounts of dividends
accumulated and unpaid through such dividend payment period on the
Series A Preferred Stock and accumulated and unpaid or payable on such
parity stock through the dividend payment period on such parity stock
next preceding such dividend payment date. In the event that full
cumulative dividends on the Series A Preferred Stock have not been
declared and paid or set apart for payment when due, the Company shall
not declare or pay or set apart for payment any dividends or make any
other distributions on, or make any payment on account of the purchase,
redemption or other retirement of any other class of stock or series
thereof of the Company ranking, as to dividends or as to distributions
in the event of a liquidation, dissolution or winding-up of the Company,
junior to the Series A Preferred Stock until full cumulative dividends
on the Series A Preferred Stock shall have been paid or declared and
provided for; provided, however, that the foregoing shall not apply to
(i) any dividend payable solely in any shares of any stock ranking, as
to dividends or as to distributions in the event of a liquidation,
dissolution or winding-up of the Company, junior to the Series A
Preferred Stock, or (ii) the acquisition of shares of any stock ranking,
as to dividends or as to distributions in the event of a liquidation,
dissolution or winding-up of the Company, junior to the Series A
Preferred Stock either (A) pursuant to any employee or director
incentive or benefit plan or arrangement (including any employment,
severance or consulting agreement) of the Company or any subsidiary of
the Company heretofore or hereafter adopted or (B) in exchange solely
for shares of any other stock ranking junior to the Series A Preferred
Stock.
SECTION 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
A. The holders of Series A Preferred Stock shall be entitled to vote
on all matters submitted to a vote of the holders of Common Stock of the
Company, voting together with the holders of Common Stock as one class.
Each share of the Series A Preferred Stock shall be entitled to the
number of votes equal to the number of shares of Common Stock into which
such share of Series A Preferred Stock could be converted on the record
date for determining the stockholders entitled to vote, rounded to the
nearest one-tenth of a vote, multiplied by 1.3 (it being understood that
whenever the "Conversion Price" (as defined in Section 5 hereof) is
adjusted as provided in Section 9 hereof, the voting rights of the
Series A Preferred Stock shall also be similarly adjusted); provided,
however, that in the event that the New York Stock Exchange shall render
a final determination that, due to the foregoing voting rights, the
issuance of the Series A Preferred Stock violates the rules of such
Exchange in effect on the date of the first issuance of Series A
Preferred Stock and so notifies the Company of such determination, each
share of Series A Preferred Stock shall thereafter be entitled to the
number of votes equal to the number of shares of Common Stock into which
such share of Series A Preferred Stock could be converted on the record
date for determining the stockholders entitled to vote, rounded to the
nearest one-tenth of a vote (it being understood that whenever the
"Conversion Price" is adjusted as provided in Section 9 hereof, the
voting rights of the Series A Preferred Stock shall also be similarly
adjusted). Upon the occurrence of a change in voting rights as
described in the proviso of the immediately preceding sentence, the
Company shall give prompt notice thereof to the holders of Series A
Preferred Stock at the address shown on the books of the Company or any
transfer agent for the Series A Preferred Stock by first-class mail,
postage prepaid.
B. Except as otherwise required by law or set forth herein, holders
of Series A Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for the taking of
any corporate action; provided, however, that the vote of at least 66
2/3% of the outstanding shares of Series A Preferred Stock, voting
separately as a series, shall be necessary to adopt any alteration,
amendment or repeal of any provision of the Restated Certificate of
Incorporation of the Company, as amended, or this Resolution (including
any such alteration, amendment, or repeal effected by any merger or
consolidation in which the Company is the surviving or resulting
corporation) if such amendment, alteration or repeal would alter or
change the powers, preferences or special rights of the shares of Series
A Preferred Stock so as to affect them adversely.
C. At all elections of directors of the Company, each holder of
Series A Preferred Stock shall be entitled to the same cumulative voting
rights as the holders of shares of the Company's Common Stock as
described in paragraph (h) of Article Eighth of the Restated Certificate
of Incorporation of the Company as in effect on the date of the first
issuance of Series A Preferred Stock and as amended from time to time.
SECTION 4. Liquidation, Dissolution or Winding-Up.
A. Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the Company, the holders of Series A
Preferred Stock shall be entitled to receive out of assets of the
Company which remain after satisfaction in full of all valid claims of
creditors of the Company and which are available for payment to
stockholders and subject to the rights of the holders of any stock of
the Company ranking senior to or on a parity with the Series A Preferred
Stock in respect of distributions upon liquidation, dissolution or
winding-up of the affairs of the Company, before any amount shall be
paid or distributed among the holders of Common Stock or any other
shares ranking junior to the Series A Preferred Stock in respect of
distributions upon liquidation, dissolution or winding-up of the affairs
of the Company, liquidating distributions in the amount of $65.00 per
share, plus an amount equal to all accumulated and unpaid dividends
thereupon to the date fixed for distribution, and no more. If upon any
liquidation, dissolution or winding-up of the affairs of the Company,
the amounts payable with respect to the Series A Preferred Stock and
any other stock ranking as to any such distribution on a parity with the
Series A Preferred Stock are not paid in full, the holders of the Series
A Preferred Stock and of such other stock shall share ratably in any
distribution of assets in proportion to the full respective preferential
amounts to which they are entitled. After payment of the full amount to
which they are entitled as provided by the foregoing provisions of this
paragraph 4A, the holders of shares of Series A Preferred Stock shall
not be entitled to any further right or claim to any of the remaining
assets of the Company.
B. Neither the merger or consolidation of the Company with or into
any other corporation, nor the merger or consolidation of any other
corporation with or into the Company, nor the sale, transfer or lease of
all or any portion of the assets of the Company, shall be deemed to be a
dissolution, liquidation or winding-up of the affairs of the Company for
purposes of this Section 4, but the holders of Series A Preferred Stock
shall nevertheless be entitled in the event of any such merger or
consolidation to the rights provided by Section 8 hereof.
C. Written notice of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company, stating the payment date or
dates when, and the place or places where, the amounts distributable to
holders of Series A Preferred Stock in such circumstances shall be
payable, shall be given by first-class mail, postage prepaid, mailed not
less than twenty (20) days prior to any payment date stated therein, to
the holders of Series A Preferred Stock, at the address shown on the
books of the Company or any transfer agent for the Series A Preferred
Stock.
SECTION 5. Conversion into Common Stock.
A. A holder of shares of Series A Preferred Stock shall be entitled,
at any time prior to the close of business on the date fixed for
redemption of such shares pursuant to Section 6, 7, or 8 hereof, to
cause any or all of such shares to be converted into shares of Common
Stock, at a conversion rate equal to the ratio of (i) $65.00 to (ii) the
amount which (A) initially shall be $65.00 and (B) shall be adjusted as
hereinafter provided (such amount, as it may be so adjusted from time to
time, is hereinafter sometimes referred to as the "Conversion Price")
(that is, a conversion rate initially equivalent to one share of Common
Stock for each share of Series A Preferred Stock so converted but that
is subject to adjustment as the Conversion Price is adjusted as
hereinafter provided).
B. Any holder of shares of Series A Preferred Stock desiring to
convert such shares into shares of Common Stock shall surrender the
certificate or certificates representing the shares of Series A
Preferred Stock being converted, duly assigned or endorsed for transfer
to the Company (or accompanied by duly executed stock powers relating
thereto), at the principal executive office of the Company or the
offices of the transfer agent for the Series A Preferred Stock or such
office or offices in the continental United States of an agent for
conversion as may from time to time be designated by notice to the
holders of the Series A Preferred Stock by the Company or the transfer
agent for the Series A Preferred Stock, accompanied by written notice of
conversion; provided, however, that in the event that the certificate or
certificates representing the shares of Series A Preferred Stock so to
be converted are held (whether in pledge or otherwise) by the Company or
such transfer agent or such agent for conversion, such written notice
may be sent by registered mail, hand delivery or by telecopier confirmed
in writing. Such notice of conversion shall specify (i) the number of
shares of Series A Preferred Stock to be converted and the name or names
in which such holder wishes the certificate or certificates for Common
Stock and for any shares of Series A Preferred Stock not to be so
converted to be issued, and (ii) the address to which such holder wishes
delivery to be made of such new certificates to be issued upon such
conversion.
C. Upon surrender of a certificate representing a share or shares of
Series A Preferred Stock for conversion, the Company shall issue and
send by hand delivery (with receipt to be acknowledged) or by first-
class mail, postage prepaid, to the holder thereof or to such holder's
designee, at the address designated by such holder, a certificate or
certificates for the number of shares of Common Stock to which such
holder shall be entitled upon conversion. In the event that there shall
have been surrendered a certificate or certificates representing shares
of Series A Preferred Stock, only part of which are to be converted, the
Company shall issue and deliver to such holder or such holder's designee
a new certificate or certificates representing the number of shares of
Series A Preferred Stock which shall not have been converted.
D. The issuance by the Company of shares of Common Stock upon a
conversion of shares of Series A Preferred Stock into shares of Common
Stock made at the option of the holder thereof shall be effective as of
the earlier of (i) the delivery to such holder or such holder's designee
of the certificates representing the shares of Common Stock issued upon
conversion thereof or (ii) the commencement of business on the second
business day after the surrender of the certificate or certificates for
the shares of Series A Preferred Stock to be converted, duly assigned or
endorsed for transfer to the Company (or accompanied by duly executed
stock powers relating thereto) as provided by this Resolution. On and
after the effective date of conversion, the person or persons entitled
to receive the Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such shares
of Common Stock, but no allowance or adjustment shall be made in respect
of dividends payable to holders of Common Stock in respect of any period
prior to such effective date. The Company shall not be obligated to pay
any dividends which shall have been declared and shall be payable to
holders of shares of Series A Preferred Stock on a Dividend Payment Date
if such Dividend Payment Date for such dividend shall coincide with or
be on or subsequent to the effective date of conversion of such shares.
E. The Company shall not be obligated to deliver to holders of Series
A Preferred Stock any fractional share or shares of Common Stock
issuable upon any conversion of such shares of Series A Preferred Stock,
but in lieu thereof may make a cash payment in respect thereof in any
manner permitted by law.
F. Whenever the Company shall issue shares of Common Stock upon
conversion of shares of Series A Preferred Stock as contemplated by this
Section 5, the Company shall issue together with each such share of
Common Stock one right to purchase Common Stock of the Company (or other
securities in lieu thereof) pursuant to the Rights Agreement dated as of
December 16, 1985 between the Company and Morgan Guaranty Trust Company
of New York, as Rights Agent, as such agreement may from time to time be
amended, or any other rights issued to holders of Common Stock of the
Company in addition thereto or in replacement therefor, whether or not
such rights shall be exercisable at such time, but only if such rights
are issued and outstanding and held by other holders of Common Stock of
the Company at such time and have not expired.
G. The Company shall at all times reserve and keep available out of
its authorized and unissued Common Stock, solely for issuance upon the
conversion of shares of Series A Preferred Stock as herein provided,
free from any preemptive rights, such number of shares of Common Stock
as shall from time to time be issuable upon the conversion of all the
shares of Series A Preferred Stock then outstanding. The Company shall
prepare and shall use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all requirements as to
registration or qualification of the Common Stock, in order to enable
the Company lawfully to issue and deliver to each holder of record of
Series A Preferred Stock such number of shares of its Common Stock as
shall from time to time be sufficient to effect the conversion of all
shares of Series A Preferred Stock then outstanding and convertible into
shares of Common Stock.
SECTION 6. Redemption at the Option of the Company.
A. The Series A Preferred Stock shall be redeemable, in whole or in
part, at the option of the Company at any time after June 10, 1994, or
on or before June 10, 1994 if permitted by paragraph D of this Section
6, at the following redemption prices per share:
During the
Twelve- Price
Month Period Per
Beginning Share
June 10
1989 $69.80
1990 $69.32
1991 $68.84
1992 $68.36
1993 $67.88
1994 $67.40
1995 $66.92
1996 $66.44
1997 $65.96
1998 $65.48
and thereafter at $65.00 per share, plus, in each case, an amount equal
to all accumulated and unpaid dividends thereon to the date fixed for
redemption, subject to the rights, if any, of holders of record on the
relevant record date to receive dividends on any Dividend Payment Date
occurring prior to the date fixed for redemption. Payment of the
redemption price shall be made by the Company in cash or shares of
Common Stock, or a combination thereof, as permitted by paragraph E of
this Section 6. From and after the date fixed for redemption, dividends
on shares of Series A Preferred Stock called for redemption will cease
to accrue, such shares will no longer be deemed to be outstanding and
all rights in respect of such shares of the Company shall cease, except
the right to receive the redemption price. If less than all of the
outstanding shares of Series A Preferred Stock are to be redeemed, the
Company shall either redeem a portion of the shares of each holder
determined pro rata based on the number of shares held by each holder or
shall select the shares to be redeemed by lot, as may be determined by
the Board of Directors of the Company.
B. Unless otherwise required by law, notice of any redemption
pursuant to paragraphs A, C or D of the Section 6 will be sent to the
holders of Series A Preferred Stock at the address shown on the books of
the Company or any transfer agent for the Series A Preferred Stock by
first-class mail, postage prepaid, mailed not less than thirty (30) days
nor more than sixty (60) days prior to the redemption date. Each such
notice shall state:
(i) the redemption date;
(ii) the total number of shares of the Series A Preferred Stock
to be redeemed and, if fewer than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed from such
holder;
(iii) the redemption price;
(iv) the place or places where certificates for such shares are
to be surrendered for payment of the redemption price;
(v) that dividends on the shares to be redeemed will cease to
accrue on such redemption date; and
(vi) the conversion rights of the shares to be redeemed, the
period within which conversion rights may be exercised, and the
Conversion Price and number of shares of Common Stock issuable upon
conversion of a share of Series A Preferred Stock at the time. The
foregoing notice provisions may be amended if necessary so as to
comply with the optional redemption provisions for preferred stock as
"qualifying employer securities" or "employer securities" within the
meaning of Section 4975(e)(8) and 409(l) under the Internal Revenue
Code of 1986, as amended (the "Code"), or under any successor
provision thereof or as "qualifying employer securities" under Section
407(d)(5) of the Employee Retirement Income Security Act or under any
successor provision thereof. Upon surrender of the certificates for
any shares so called for redemption and not previously converted
(properly endorsed or assigned for transfer, if the Board of
Directors
of the Company shall so require and the notice shall so state), such
shares shall be redeemed by the Company at the date fixed for
redemption and at the redemption price set forth in this Section 6.
C. (i) In the event of a change in the federal tax laws of the
United States of America (or any regulations or rulings promulgated
thereunder), or any change in the application, enforcement or
interpretation in respect of such laws, regulations or rulings,
including any of the foregoing taken by a court of competent
jurisdiction, which has the effect of precluding the Company from
claiming any of the tax deductions, in whole or in part, for dividends
paid on the Series A Preferred Stock when such dividends are used as
provided under Section 404(k)(2) of the Code in effect on the date
shares of Series A Preferred Stock are initially issued, or
(ii) upon certification by the Company to the holders of the
Series A Preferred Stock that the Company has determined, based on
correspondence from, or the commencement of litigation by, the
Department of Labor or the Internal Revenue Service to or against the
Company, the ESOP or the trustee of the ESOP and the advice of counsel
that the issuance of the shares of Series A Preferred Stock to the
holders was not in compliance with applicable law or regulation, or
(iii) if the ESOP, as amended, or any successor plan is
determined by the Internal Revenue Service not to be qualified under
Section 401(a) and 4975(e)(7) of the Code, or
(iv) in the event of a change in the federal tax laws of the
United States of America which permits the Company to claim a tax
deduction, in whole or in part, for any dividends paid on any of the
Company's common equity securities (for federal tax purposes) other
than in relation to the ESOP or similar plan, the Company may, at any
time thereafter and in its sole discretion and notwithstanding
anything to the contrary in paragraph A of this Section 6, elect to
redeem the Series A Preferred Stock, in whole or in part, for $65.00
per share, plus an amount equal to accumulated and unpaid dividends
thereon to the date fixed for redemption. Notice of such redemption
shall be provided in accordance with the procedures set forth in
paragraph B of this Section 6.
D. In the event that the Company shall at any time terminate the ESOP,
the Company may, at any time thereafter and in its sole discretion and
notwithstanding anything to the contrary in paragraph A of this Section 6,
elect to redeem the Series A Preferred Stock, in whole or in part, at the
redemption price per share set forth in paragraph A of this Section 6
applicable at the time of such termination (plus an amount equal to all
accumulated and unpaid dividends thereon to the date fixed for redemption)
and otherwise on the terms and conditions set forth in paragraphs A and B
of this Section 6.
E. The Company, at its option, may make payment of the redemption price
required upon redemption of shares of Series A Preferred Stock in cash or
in shares of Common Stock, or in a combination of such shares and cash, any
such shares to be valued for such purpose at their Fair Market Value (as
defined in paragraph G of Section 9 hereof, provided, however, that in
calculating their Fair Market Value the Adjustment Period shall be deemed
to be the five (5) consecutive trading days preceding, and including, the
date of redemption). Notwithstanding anything herein to the contrary, in
the event that the Company elects, by a resolution of its Board of
Directors, to make payment of all future redemption prices solely in cash
or solely in shares of Common Stock of the Company and notifies the holders
of Series A Preferred Stock of such election, all such payments thereafter
shall be made in compliance with such election and such election shall be
irrevocable.
SECTION 7. Other Redemption Rights. Shares of Series A Preferred Stock
shall be redeemed by the Company, to the extent permitted by applicable
statutes and regulations, for shares of Common Stock, or, if the Company so
elects, for cash, or for a combination of such shares and cash, any such
shares of Common Stock to be valued for such purpose as provided by the last
sentence of this Section 7, at a redemption price of $65.00 per share plus
accumulated and unpaid dividends thereon to the date fixed for redemption, at
the option of the holder, at any time and from time to time upon notice to
the Company given not less than five (5) business days prior to the date
fixed by the holder in such notice for such redemption, (i) when and to the
extent necessary, for such holder to provide for distributions required to be
made under, or to satisfy an investment election provided to participants in
accordance with, the ESOP, as the same may be amended, or any successor plan
to participants in the ESOP, (ii) when and to the extent necessary, for such
holder to make payment of principal, interest or premium due and payable on
any indebtedness incurred by the holder for the benefit of the ESOP, or (iii)
if the ESOP is determined by the Internal Revenue Service no longer to be
qualified within the meaning of Sections 401(a) and 4975(e)(7) of the Code,
but in such event the holder shall have such option only at such time as the
Company is not in good faith taking steps to reinstate the qualification of
the ESOP under such Sections. Any shares of Common Stock for which Series A
Preferred Stock is redeemed pursuant to this Section 7 shall be valued for
such purpose (x) in the case of any redemption pursuant to either of clauses
(ii) and (iii) of the next preceding sentence, as provided in paragraph E of
Section 6 and (y) in the case of any redemption pursuant to clause (i) of the
next preceding sentence to provide for distributions required to be made or
to satisfy an investment election, at the Fair Market Value (as defined in
paragraph G of Section 9 hereof) of such shares of Common Stock; provided,
however, that in calculating such Fair Market Value, the Adjustment Period
shall be deemed to be the applicable valuation date for any such distribution
or with respect to any such investment election, in either case, as provided
in the ESOP.
SECTION 8. Consolidation, Merger, etc.
A. In the event that the Company shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the
outstanding shares of Common Stock are by operation of law exchanged solely
for or changed, reclassified or converted solely into stock of any successor
or resulting company (including the Company) that constitutes "qualifying
employer securities" with respect to a holder of Series A Preferred Stock
within the meaning of Section 4975(e)(8) of the Code and Section 407(d)(5) of
the Employee Retirement Income Security Act of 1974, as amended, or any
successor provisions of law, and, if applicable, for a cash payment in lieu
of fractional shares, if any, the shares of the Series A Preferred Stock of
such holder shall be assumed by and shall become preferred stock of such
successor or resulting company, having in respect of such company insofar as
possible the same powers, preferences and relative, participating, optional
or other special rights (including the redemption rights provided by Section
6, 7, and 8 hereof), and the qualifications, limitations or restrictions
thereon, that the Series A Preferred Stock had immediately prior to such
transaction, except that after such transaction each share of the Series A
Preferred Stock shall be convertible, otherwise on the terms and conditions
provided by Section 5 hereof, into the qualifying employer securities so
receivable by a holder of the number of shares of Common Stock into which
such shares of Series A Preferred Stock could have been converted immediately
prior to such transaction if such holder of Common Stock failed to exercise
any rights of election to receive any kind or amount of stock, securities,
cash or other property (other than such qualifying employer securities and a
cash payment, if applicable, in lieu of fractional shares) receivable upon
such transaction (provided that, if the kind or amount of qualifying employer
securities receivable upon such transaction is not the same for each non-
electing share, then the kind and amount of qualifying employer securities
receivable upon such transaction for each non-electing share shall be the
kind and amount so receivable per share by a plurality of the non-electing
shares). The rights of the Series A Preferred Stock as preferred stock of
such successor or resulting company shall successively be subject to
adjustments pursuant to Section 9 hereof after any such transaction as nearly
equivalent to the adjustments provided for by such section prior to such
transaction. The Company shall not consummate any such merger, consolidation
or similar transaction unless all then outstanding shares of the Series A
Preferred Stock shall be assumed and authorized by the successor or resulting
company as aforesaid.
B. In the Event that the Company shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the
outstanding shares of Common Stock are by operation of law exchanged for or
changed, reclassified or converted into other stock or securities or cash or
any other property, or any combination thereof, other than any such
consideration which is constituted solely of qualifying employer securities
(as referred to in paragraph A of this Section 8) and cash payments, if
applicable, in lieu of fractional shares, outstanding shares of Series A
Preferred Stock shall, without any action on the part of the Company or any
holder thereof (but subject to paragraph C of this Section 8), be deemed
converted by virtue of such merger, consolidation or similar transaction
immediately prior to such consummation into the number of shares of Common
Stock into which such shares of Series A Preferred Stock could have been
converted at such time and each share of Series A Preferred Stock shall, by
virtue of such transaction and on the same terms as apply to the holders of
Common Stock, be converted into or exchanged for the aggregate amount of
stock, securities, cash or other property (payable in like kind) receivable
by a holder of the number of shares of Common Stock into which such shares of
Series A Preferred Stock could have been converted immediately prior to such
transaction if such holder of Common Stock failed to exercise any rights of
election as to the kind or amount of stock, securities, cash or other
property receivable upon such transaction (provided that, if the kind or
amount of stock, securities, cash or other property receivable upon such
transaction is not the same for each non-electing share, then the kind and
amount of stock, securities, cash or other property receivable upon such
transaction for each non-electing share shall be the kind and amount so
receivable per share by a plurality of the non-electing shares).
C. In the event the Company shall enter into any agreement providing for
any consolidation or merger or similar transaction described in paragraph B
of this Section 8, then the Company shall as soon as practicable thereafter
(and in any event at least fifteen (15) business days before consummation of
such transaction) give notice of such agreement and the material terms
thereof to each holder of Series A Preferred Stock and each such holder shall
have the right to elect, by written notice to the Company, to receive, upon
consummation of such transaction (if and when such transaction is
consummated), from the Company or the successor of the Company, in redemption
and retirement of such Series A Preferred Stock, a cash payment equal to the
redemption price per share of Series A Preferred Stock, applicable at the
date such written notice is given, set forth in paragraph A of Section 6
hereof, plus an amount in cash equal to any accumulated and unpaid dividends
on such Series A Preferred Stock to the date of consummation of such
transaction. In the event that any such election is made by any holder, such
redemption and retirement of Series A Preferred Stock that is the subject of
such election shall be a condition to the consummation of such transaction.
No such notice of redemption shall be effective unless given to the Company
prior to the close of business on the fifth business day prior to
consummation of such transaction, unless the Company or the successor of the
Company shall waive such prior notice, but any notice of redemption so given
prior to such time may be withdrawn by notice of withdrawal given to the
Company prior to the close of business on the fifth business day prior to
consummation of such transaction.
SECTION 9. Anti-dilution Adjustments.
A. In the event the Company shall, at any time or from time to time while
any of the shares of the Series A Preferred Stock are outstanding, (i) pay a
dividend or make a distribution in respect of the Common Stock in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller number of
shares, in each case whether by reclassification of shares, recapitalization
of the Company (including a recapitalization effected by a merger or
consolidation to which Section 8 hereof does not apply) or otherwise, the
Conversion Price in effect immediately prior to such action shall be adjusted
by multiplying such Conversion Price by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately before such
event and the denominator of which is the number of shares of Common Stock
outstanding immediately after such event. An adjustment made pursuant to
this paragraph 9 A shall be given effect, upon payment of such a dividend or
distribution, as of the record date for the determination of shareholders
entitled to receive such dividend or distribution (on a retroactive basis)
and in the case of a subdivision or combination shall become effective
immediately as of the effective date thereof.
B. In the event that the Company shall, at any time or from time to time
while any of the shares of Series A Preferred Stock are outstanding, issue to
holders of shares of Common Stock as a dividend or distribution, including by
way of a reclassification of shares or a recapitalization of the Company, any
right or warrant to purchase shares of Common Stock (but not including, as
such a right or warrant, any security convertible into or exchangeable for
shares of Common Stock) at a purchase price per share less than the Fair
Market Value (as hereinafter defined) of a share of Common Stock on the date
of issuance of such right or warrant, then, subject to the provisions of
paragraphs E and F of this Section 9, the conversion price shall be adjusted
by multiplying such Conversion Price by a fraction the numerator of which
shall be the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the number of shares of Common Stock
which could be purchased at the Fair Market Value of a share of Common Stock
at the time of such issuance for the maximum aggregate consideration payable
upon exercise in full of all such rights or warrants and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the maximum number of shares
of Common Stock that could be acquired upon exercise in full of all such
rights and warrants.
C. In the event the Company shall, at any time or from time to time while
any of the shares of Series A Preferred Stock are outstanding, issue, sell or
exchange shares of Common Stock (other than pursuant to any right or warrant
to purchase or acquire shares of Common Stock (including as such a right or
warrant any security convertible into or exchangeable for shares of Common
Stock) and other than pursuant to any employee or director incentive or
benefit plan or arrangement, including any employment, severance or
consulting agreement, of the Company or any subsidiary of the Company
heretofore or hereafter adopted) for a consideration having a Fair Market
Value on the date of such issuance, sale or exchange less than the Fair
Market Value of such shares on the date of such issuance, sale or exchange,
then, subject to the provisions of paragraphs E and F of this Section 9, the
Conversion Price shall be adjusted by multiplying such Conversion Price by
the fraction the numerator of which shall be the sum of (i) the Fair Market
Value of all the shares of Common Stock outstanding on the day immediately
preceding the first public announcement of such issuance, sale or exchange
plus (ii) the Fair Market Value of the consideration received by the Company
in respect of such issuance, sale or exchange of shares of Common Stock, and
the denominator of which shall be the product of (i) the Fair Market Value of
a share of Common Stock on the day immediately preceding the first public
announcement of such issuance, sale or exchange multiplied by (ii) the sum of
the number of shares of Common Stock outstanding on such day plus the number
of shares of Common Stock so issued, sold or exchanged by the Company. In
the event the Company shall, at any time or from time to time while any
shares of Series A Preferred Stock are outstanding, issue, sell or exchange
any right or warrant to purchase or acquire shares of Common Stock (including
as such a right or warrant any security convertible into or exchangeable for
shares of Common Stock), other than any such issuance to holders of shares of
Common Stock as a dividend or distribution (including by way of a
reclassification of shares or a recapitalization of the Company) and other
than pursuant to any employee or director incentive or benefit plan or
arrangement (including any employment, severance or consulting agreement) of
the Company or any subsidiary of the Company heretofore or hereafter adopted,
for a consideration having a Fair Market Value on the date of such issuance,
sale or exchange less than the Non-Dilutive Amount (as hereinafter defined),
then, subject to the provisions of paragraphs E and F of this Section 9, the
Conversion Price shall be adjusted by multiplying such Conversion Price by a
fraction the numerator of which shall be the sum of (i) the Fair Market Value
of all the shares of Common Stock outstanding on the day immediately
preceding the first public announcement of such issuance, sale or exchange
plus (ii) the Fair Market Value of the consideration received by the Company
in respect of such issuance, sale or exchange of such right or warrant plus
(iii) the Fair Market Value at the time of such issuance of the consideration
which the Company would receive upon exercise in full of all such rights or
warrants, and the denominator of which shall be the product of (i) the Fair
Market Value of a share of Common Stock on the day immediately preceding the
first public announcement of such issuance, sale or exchange multiplied by
(ii) the sum of the number of shares of Common Stock outstanding on such day
plus the maximum number of shares of Common Stock which could be acquired
pursuant to such right or warrant at the time of the issuance, sale or
exchange of such right or warrant (assuming shares of Common Stock could be
acquired pursuant to such right or warrant at such time).
D. In the event the Company shall, at any time or from time to time while
any of the shares of Series A Preferred Stock are outstanding, make an
Extraordinary Distribution (as hereinafter defined) in respect of the Common
Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Company (including a recapitalization or
reclassification effected by a merger or consolidation to which Section 8
hereof does not apply) or effect a Pro Rata Repurchase (as hereinafter
defined) of Common Stock, the Conversion Price in effect immediately prior to
such Extraordinary Distribution or Pro Rata Repurchase shall, subject to
paragraphs E and F of this Section 9, be adjusted by multiplying such
Conversion Price by the fraction the numerator of which is (i) the product of
(x) the number of shares of Common Stock outstanding immediately before such
Extraordinary Distribution or Pro Rata Repurchase multiplied by (y) the Fair
Market Value (as herein defined) of a share of Common Stock on the record
date with respect to an Extraordinary Distribution, or on the applicable
expiration date (including all extensions thereof) of any tender offer which
is a Pro Rata Repurchase, or on the date of purchase with respect to any Pro
Rata Repurchase which is not a tender offer, as the case may be, minus (ii)
the Fair Market Value of the Extraordinary Distribution or the aggregate
purchase price of the Pro Rata Repurchase, as the case may be, and the
denominator of which shall be the product of (a) the number of shares of
Common Stock outstanding immediately before such Extraordinary Dividend or
Pro Rata Repurchase minus, in the case of a Pro Rata Repurchase, the number
of shares of Common Stock repurchased by the Company multiplied by (b) the
Fair Market Value of a share of Common stock on the record date with respect
to an Extraordinary Distribution or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a Pro Rata
Repurchase or on the date of purchase with respect to any Pro Rata Repurchase
which is not a tender offer, as the case may be. The Company shall send each
holder of Series A Preferred Stock (i) notice of its intent to make any
dividend or distribution and (ii) notice of any offer of the Company to make
a Pro Rata Repurchase, in each case at the same time as, or as soon as
practicable after, such offer is first communicated (including by
announcement of a record date in accordance with the rules of any stock
exchange on which the Common Stock is listed or admitted to trading) to
holders of Common Stock. Such notice shall indicate the intended record date
and the amount and nature of such dividend or distribution, or the number of
shares subject to such offer for a Pro Rata Repurchase and the purchase price
payable by the Company pursuant to such offer, as well as the Conversion
Price and the number of shares of Common Stock into which a share of Series A
Preferred Stock may be converted at such time.
E. Notwithstanding any other provisions of this Section 9, the Company
shall not be required to make any adjustment of the Conversion Price unless
such adjustment would require an increase or decrease of at least one percent
(1%) in the Conversion Price. Any lesser adjustment shall be carried forward
and shall be made no later than the time of, and together with, the next
subsequent adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least one
percent (1%) in the Conversion Price. In addition, notwithstanding any other
provisions of this Section 9, the Company shall not be required to make any
adjustment of the Conversion Price that would result in the Company receiving
less than the par value of the Common Stock upon conversion of the Series A
Preferred Stock into Common Stock.
F. If the Company shall make any dividend or distribution on the Common
Stock or issue any Common Stock, other capital stock or other security of the
Company or any rights or warrants to purchase or acquire any such security,
which transaction does not result in an adjustment to the Conversion Price
pursuant to the forgoing provisions of this Section 9, the Board of Directors
of the Company shall have the authority to consider whether such action is of
such a nature that an adjustment to the Conversion Price should equitably be
made in respect of such transaction. If in such case the Board of Directors
of the Company determines that an adjustment to the Conversion Price should
be made, an adjustment shall be made effective as of such date, as determined
by the Board of Directors of the Company. The determination of the Board of
Directors of the Company as to whether an adjustment to the Conversion Price
should be made pursuant to the foregoing provisions of this paragraph 9 F,
and, if so, as to what adjustment should be made and when, shall be final and
binding on the Company and all stockholders of the Company. The Company
shall be entitled to make such additional adjustments in the Conversion
Price, in addition to those required by the foregoing provisions of this
Section 9, as shall be necessary in order that any dividend or distribution
in shares of capital stock of the Company, subdivision, reclassification or
combination of shares of stock of the Company or any recapitalization of the
Company shall not be taxable to holders of the Common Stock.
G. For purposes of this Resolution, the following definitions shall apply:
"Extraordinary Distribution" shall mean any dividend or other
distribution (effected while any of the shares of Series A Preferred Stock
are outstanding) of (i) cash, where the aggregate amount of such cash
dividend or distribution together with the amount of all cash dividends and
distributions made during the preceding period of 12 months, when combined
with the aggregate amount of all Pro Rata Repurchases (for this purpose,
including only that portion of the aggregate purchase price of such Pro
Rata Repurchase which is in excess of the Fair Market Value of the Common
Stock repurchased as determined on the applicable expiration date
(including all extensions thereof) of any tender offer or exchange offer
which is a Pro Rata Repurchase, or the date of purchase with respect to any
other Pro Rata Repurchase which is not a tender offer or exchange offer
made during such period), exceeds twelve and one-half percent (12 1/2%) of
the aggregate Fair Market Value of all shares of Common Stock outstanding
on the record date for determining the shareholders entitled to receive
such Extraordinary Distribution and (ii) any shares of capital stock of the
Company (other than shares of Common Stock), other securities of the
Company (other than securities of the type referred to in paragraph B of
this Section 9), evidences of indebtedness of the Company or any other
person or any other property (including shares of any subsidiary of the
Company), or any combination thereof. The Fair Market Value of an
Extraordinary Distribution for purposes of paragraph D of this Section 9
shall be the sum of the Fair Market Value of such Extraordinary
Distribution plus the amount of any cash dividends which are not
Extraordinary Distributions made during such twelve month period and not
previously included in the calculation of an adjustment pursuant to
paragraph D of this Section 9.
"Fair Market Value" shall mean, as to shares of Common Stock or any
other class of capital stock or securities of the Company or any other
issuer which are publicly traded, the average of the Current Market Prices
(as hereinafter defined) of such shares or securities for each day of the
Adjustment Period (as hereinafter defined). "Current Market Price" of
publicly traded shares of Common Stock or any other class of capital stock
or other security of the Company or any other issuer for a day shall mean
the last reported sales price, regular way, or, in case no sale takes place
on such day, the average of the reported closing bid and asked prices,
regular way, in either case as reported on the New York Stock Exchange
Composite Tape or, if such security is not listed or admitted to trading on
the New York Stock Exchange, on the principal national securities exchange
on which such security is listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, on the NASDAQ
National Market System or, if such security is not quoted on such National
Market System, the average of the closing bid and asked prices on each such
day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for such security on each such day shall not have been
reported through NASDAQ, the average of the bid and asked prices for such
day as furnished by any New York Stock Exchange member firm regularly
making a market in such security selected from time to time for such
purpose by the Board of Directors of the Company or a committee thereof on
each trading day during the Adjustment period. "Adjustment Period" shall
mean the period of five (5) consecutive trading days, selected by the Board
of Directors of the Company or a committee thereof, during the 20 trading
days preceding, and including, the date as of which the Fair Market Value
of a security is to be determined. The "Fair Market Value" of any security
which is not publicly traded or of any other property shall mean the fair
value thereof as determined by an independent investment banking or
appraisal firm experienced in the valuation of such securities or property
selected in good faith by the Board of Directors of the Company or a
committee thereof, or, if no such investment banking or appraisal firm is
in the good faith judgment of the Board of Directors or such committee
available to make such determination, as determined in good faith by the
Board of Directors of the Company or such committee.
"Non-Dilutive Amount" in respect of an issuance, sale or exchange by the
Company of any right or warrant to purchase or acquire shares of Common
Stock (including any security convertible into or exchangeable for shares
of Common Stock) shall mean the remainder of (i) the product of the Fair
Market Value of a share of Common Stock on the day preceding the first
public announcement of such issuance, sale or exchange multiplied by the
maximum number of shares of Common Stock which could be acquired on such
date upon the exercise in full of such rights and warrants (including upon
the conversion or exchange of all such convertible or exchangeable
securities), whether or not exercisable (or convertible or exchangeable) at
such date, minus (ii) the aggregate amount payable pursuant to such right
or warrant to purchase or acquire such maximum number of shares of Common
Stock; provided, however, that in no event shall the Non-Dilutive Amount be
less than zero. For purposes of the foregoing sentence, in the case of a
security convertible into or exchangeable for shares of Common Stock, the
amount payable pursuant to a right or warrant to purchase or acquire shares
of Common Stock shall be the Fair Market Value of such security on the date
of the issuance, sale or exchange of such security by the Company.
"Pro Rata Repurchase" shall mean any purchase of shares of Common Stock
by the Company or any subsidiary thereof, whether for cash, shares of
capital stock of the Company, other securities of the Company, evidences of
indebtedness of the Company or any other person or any other property
(including shares of a subsidiary of the Company), or any combination
thereof, effected while any of the shares of Series A Preferred Stock are
outstanding, pursuant to any tender offer or exchange offer subject to
Section 13(e) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any successor provision of law, or pursuant to any
other offer available to substantially all holders of Common Stock;
provided, however, that no purchase of shares by the Company or any
subsidiary thereof made in open market transactions shall be deemed a Pro
Rata Repurchase. For purposes of this paragraph 9 G, shares shall be
deemed to have been purchased by the Company or any subsidiary thereof "in
open market transactions" if they have been purchased substantially in
accordance with the requirements of Rule 10b-18 as in effect under the
Exchange Act, on the date shares of Series A Preferred Stock are initially
issued by the Company or on such other terms and conditions as the Board of
Directors of the Company or a committee thereof shall have determined are
reasonably designed to prevent such purchases from having a material effect
on the trading market for the Common Stock.
H. Whenever an adjustment to the Conversion Price and the related voting
rights of the Series A Preferred Stock is required pursuant to this
Resolution, the Company shall forthwith place on file with the transfer agent
for the Common Stock and the Series A Preferred Stock if there be one, and
with the Secretary of the Company, a statement signed by two officers of the
Company stating the adjusted Conversion Price determined as provided herein
and the resulting conversion ratio, and the voting rights (as appropriately
adjusted), of the Series A Preferred Stock. Such statement shall set forth
in reasonable detail such facts as shall be necessary to show the reason and
the manner of computing such adjustment, including any determination of Fair
Market Value involved in such computation. Promptly after each adjustment to
the Conversion Price and the related voting rights of the Series A Preferred
Stock, the Company shall mail a notice thereof and of the then prevailing
conversion ratio to each holder of shares of the Series A Preferred Stock.
SECTION 10. Ranking; Attributable Capital and Adequacy of Surplus; Retirement
of Shares.
A. The Series A Preferred Stock shall rank senior to the Common Stock as
to the payment of dividends and the distribution of assets on liquidation,
dissolution and winding up of the affairs of the Company, and shall rank
junior to all series of preferred stock of the Company currently authorized
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up and, unless otherwise provided in the Restated
Certificate of Incorporation of the Company, as amended, or a Certificate of
Designation relating to a subsequent series of preferred stock of the
Company, the Series A Preferred Stock shall rank junior to all other series
of the Company's Preferred Stock, as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding up.
B. The capital of the Company allocable to the Series A Preferred Stock
for purposes of the Delaware General Corporation Law (the "Corporation Law")
shall be $1.00 per share. In addition to any vote of stockholders required
by law, the vote of the holders of a majority of the outstanding shares of
Series A Preferred Stock shall be required to increase the par value of the
Common Stock or otherwise increase the capital of the Company allocable to
the Common Stock for the purpose of the Corporation Law if, as a result
thereof, the surplus of the Company for purposes of the Corporation Law would
be less than the amount of preferred Dividends that would accrue on the then
outstanding shares of Series A Preferred Stock during the following three
years.
C. Any shares of Series A Preferred Stock acquired by the Company by
reason of the conversion or redemption of such shares as provided by the
Resolution, or otherwise so acquired, shall be retired as shares of Series A
Preferred Stock and restored to the status of authorized but unissued shares
of preferred stock of the Company, undesignated as to series, and may
thereafter be reissued as part of a new series of such preferred stock as
permitted by law.
SECTION 11. Miscellaneous.
A. All notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of receipt
thereof or three (3) business days after the mailing thereof if sent by
registered mail (unless first-class mail shall be specifically permitted for
such notice under the terms of this Resolution) with postage prepaid,
addressed:
(i) if the Company, to its office at United Technologies Building,
Hartford Conn. 06101 (Attention: Secretary) or to the transfer agent for
the Series A Preferred Stock, or other agent of the Company designated as
permitted by this Resolution or
(ii) if to any holder of the Series A Preferred Stock or Common Stock,
as the case may be, to such holder at the address of such holder as listed
in the stock record books of the Company (which may include the records of
any transfer agent for the Series A Preferred Stock or Common Stock, as the
case may be) or
(iii) to such other address as the Company or any such holder, as the
case may be, shall have designated by notice similarly given.
B. The term "Common Stock" as used in this Resolution means the Company's
Common Stock, par value $5.00 per share, as the same exists at the date of
filing of a Certificate of Designation relating to Series A Preferred Stock
or any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
In the event that, at any time as a result of an adjustment made pursuant to
Section 9 of this Resolution, the holder of any share of the Series A
Preferred Stock upon thereafter surrendering such shares for conversion shall
become entitled to receive any shares or other securities of the Company
other than shares of Common Stock, the Conversion Price in respect of such
other shares or securities so receivable upon conversion of shares of Series
A Preferred Stock shall thereafter be adjusted, and shall be subject to
further adjustment from time to time, in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock
contained in Section 9 hereof, and the provisions of Sections 1 through 8 and
10 and 11 of this Resolution with respect to the Common Stock shall apply on
like or similar terms to any such other shares or securities.
C. The Company shall pay any and all stock transfer and documentary stamp
taxes that may be payable in respect of any issuance or delivery of shares of
Series A Preferred Stock or shares of Common Stock or other securities issued
on account of Series A Preferred Stock pursuant hereto or certificates
representing such shares or securities. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issuance or delivery of shares of Series A Preferred Stock or
Common Stock or other securities in a name other than that in which the
shares of Series A Preferred Stock with respect to which such shares or other
securities are issued or delivered were registered, or in respect of any
payment to any person with respect to any such shares or securities other
than a payment to the registered holder thereof, and shall not be required
to make any such issuance, delivery or payment unless and until the person
otherwise entitled to such issuance, delivery or payment has paid to the
Company the amount of any such tax or has established, to the satisfaction of
the Company, that such tax has been paid or is not payable.
D. In the event that a holder of shares of Series A Preferred Stock shall
not by written notice designate the name in which shares of Common Stock to
be issued upon conversion of such shares should be registered or to whom
payment upon redemption of shares of Series A Preferred Stock should be made
or the address to which the certificate or certificates representing such
shares, or such payment, should be sent, the Company shall be entitled to
register such shares, and make such payment, in the name of the holder of
such Series A Preferred Stock as shown on the records of the Company and to
send the certificate or certificates representing such shares, or such
payment, to the address of such holder shown on the records of the Company.
E. Unless otherwise provided in the Restated Certificate of Incorporation,
as amended, of the Company, all payments in the form of dividends,
distributions on voluntary or involuntary dissolution, liquidation or
winding-up or otherwise made upon the shares of Series A Preferred Stock and
any other stock ranking on a parity with the Series A Preferred Stock with
respect to such dividend or distribution shall be made pro rata, so that
amounts paid per share on the Series A Preferred Stock and such other stock
shall in all cases bear to each other the same ratio that the required
dividends, distributions or payments, as the case may be, then payable per
share on the shares of the Series A Preferred Stock and such other stock bear
to each other.
F. The Company may appoint, and from time to time discharge and change, a
transfer agent or a registrar or both for the Series A Preferred Stock. Upon
any such appointment or discharge of a transfer agent or registrar, the
Company shall send notice thereof by first-class mail, postage prepaid, to
each holder of record of Series A Preferred Stock.
FIFTH: The minimum amount of capital with which the Corporation will
commence business is One Thousand Dollars.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be subject
to the payment of corporate debts.
EIGHTH: Subject to the provisions of the laws of the State of Delaware,
the following provisions are adopted for the management of the business and
for the conduct of the affairs of the Corporation, and for defining, limiting
and regulating the powers of the Corporation, the directors and the
stockholders:
(a) The books of the Corporation may be kept outside the State of
Delaware at such place or places as may, from time to time, be designated
by the Board of Directors.
(b) The business of the Corporation shall be managed by its Board of
Directors; and the Board of Directors shall have power to exercise all the
powers of the Corporation, including (but without limiting the generality
hereof) the power to create mortgages upon the whole or any part of the
property of the Corporation, real or personal, without any action of or by
the stockholders, except as otherwise provided by statute or by the Bylaws.
(c) The number of the directors shall be fixed by the Bylaws, subject
to alteration, from time to time, by amendment of the Bylaws either by the
Board of Directors or the stockholders. An increase in the number of
directors shall be deemed to create vacancies in the Board, to be filled in
the manner provided in the Bylaws. Any director or any officer elected or
appointed by the stockholders or by the Board of Directors may be removed
at any time, in such manner as shall be provided in the Bylaws.
(d) The Board of Directors shall have power to make and alter Bylaws,
subject to such restrictions upon the exercise of such power as may be
imposed by the incorporators or the stockholders in any Bylaws adopted by
them from time to time.
(e) The Board of Directors shall have power, in its discretion, to fix,
determine and vary, from time to time, the amount to be retained as surplus
and the amount or amounts to be set apart out of any of the funds of the
Corporation available for dividends as working capital or a reserve or
reserves for any proper purpose, and to abolish any such reserve in the
manner in which it was created.
(f) The Board of Directors shall have power, in its discretion, from
time to time, to determine whether and to what extent and at what times and
places and under what conditions and regulations the books and accounts of
the Corporation, or any of them, other than the stock ledger, shall be open
to the inspection of stockholders; and no stockholder shall have any right
to inspect any account or book or document of the Corporation, except as
conferred by law or authorized by resolution of the directors or of the
stockholders.
(g) Upon any sale, exchange or other disposal of the property and/or
assets of the Corporation, payment therefor may be made either to the
Corporation or directly to the stockholders in proportion to their
interests, upon the surrender of their respective stock certificates, or
otherwise, as the Board of Directors may determine.
(h) At all elections of directors of the Corporation, each holder of
Common Stock shall be entitled to as many votes as shall equal the number
of his shares of such stock multiplied by the number of directors to be
elected by the holders of Common Stock, and he may cast all of such votes
for a single director or may distribute them among the number to be voted
for by the holders of the Common Stock, or any two or more of them as he
may see fit.
(i) In case the Corporation shall enter into any contract or transact
any business with one or more of its directors, or with any firm of which
any director is a member, or with any corporation or association of which
any director is a stockholder, director or officer, such contract or
transaction shall not be invalidated or in any way affected by the fact
that such director has or may have an interest therein which is or might be
adverse to the interests of the Corporation, even though the vote of such
director might have been necessary to obligate the Corporation upon such
contract or transaction; provided, that the fact of such interest shall
have been disclosed to the other directors or the stockholders of the
Corporation, as the case may be, acting upon or with reference to such
contract or transaction.
(j) 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 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions
of Section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as
the case may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been
made, 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.
(k) The Corporation reserves the right to amend, alter, change, add to
or repeal any provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by statute; and all rights herein
conferred are granted subject to this reservation.
NINTH: The stockholder vote required to approve Business Combinations
(hereinafter defined) shall be as set forth in this Article Ninth.
SECTION 1. Higher Vote for Business Combinations. In addition to any
affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in Section 3 of this Article Ninth:
A. any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (i) any Interested Stockholder (as hereinafter
defined) or (ii) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder; or
B. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary having an aggregate Fair
Market Value of $25,000,000 or more; or
C. the issuance or transfer by the Corporation or any subsidiary (in one
transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of $25,000,000 or more; or
D. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
E. any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder; shall require the affirmative vote
of the holders of at least 80% of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (the "Voting Stock"), voting together as a single
class (it being understood that for purposes of this Article Ninth, each
share of the Voting Stock shall have the number of votes granted to it
pursuant to Article Fourth of this Certificate of Incorporation). Such
affirmative vote shall be required not withstanding the fact that no vote
may be required, or that a lesser percentage may be specified, by law or
in any agreement with any national securities exchange or otherwise.
SECTION 2. Definition of "Business Combination." The term "Business
Combination" as used in this Article Ninth shall mean any transaction which
is referred to in any one or more of paragraphs A through E of Section 1.
SECTION 3. When Higher Vote is Not Required. The provisions of Section
1 of this Article Ninth shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such
affirmative vote as is required by law and any other provision of this
Certificate of Incorporation, if in the case of a Business Combination that
does not involve any cash or other consideration being received by the
stockholders of the Corporation, solely in their capacities as stockholders,
the condition specified in the following paragraph A is met, or if in the
case of any other Business Combination, the conditions specified in either of
the following paragraphs A or B are met:
A. Approval by Disinterested Directors. The Business Combination shall
have been approved by a majority of the Disinterested Directors (as
hereinafter defined).
B. Price and Procedure Requirements. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination (the "Consummation Date") of the consideration other than
cash to be received per share by holders of Common Stock in such
Business Combination shall be an amount at least equal to the higher of
the following (it being intended that the requirements of this paragraph
B(i) shall be required to be met with respect to all shares of Common
Stock outstanding, whether or not the Interested Stockholder has
previously acquired any shares of the Common Stock):
(a) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of Common Stock acquired by it
(1) within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the
"Announcement Date") or (2) in the transaction in which it became an
Interested Stockholder, whichever is higher, plus interest compounded
annually from the date on which the Interested Stockholder became an
Interested Stockholder through the Consummation Date at the prime rate
of interest of Citibank, N.A. (or other major bank headquartered in
New York City selected by a majority of the Disinterested Directors)
from time to time in effect in New York City, less the aggregate
amount of any cash dividends paid, and the Fair Market Value of any
dividends paid in other than cash, per share of Common Stock from the
date on which the Interested Stockholder became an Interested
Stockholder through the Consummation Date in an amount up to but not
exceeding the amount of such interest payable per share of Common
Stock; or
(b) the Fair Market Value per share of Common Stock on the
Announcement Date.
(ii) The aggregate amount of the cash and the Fair Market Value as of
the Consummation Date of the consideration other than cash to be
received per share by holders of shares of any class of outstanding
Voting Stock, other than the Common Stock, in such Business Combination
shall be an amount at least equal to the highest of the following (it
being intended that the requirements of this paragraph B (ii) shall be
required to be met with respect to all shares of every such other class
of outstanding Voting Stock, whether or not the Interested Stockholder
has previously acquired any shares of a particular class of Voting
Stock):
(a) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of such class of Voting Stock
acquired by it (1) within the two-year period immediately prior to the
Announcement Date or (2) in the transaction in which it became an
Interested Stockholder, whichever is higher, plus interest compounded
annually from the date on which the Interested Stockholder became an
Interested Stockholder through the Consummation Date at the prime rate
of interest of Citibank, N.A. (or other major bank headquartered in
New York City selected by a majority of the Disinterested Directors)
from time to time in effect in New York City, less the aggregate
amount of any cash dividends paid, and the Fair Market Value of any
dividends paid in other than cash, per share of such class of Voting
Stock from the date on which the Interested Stockholder became an
Interested Stockholder through the Consummation Date in an amount up
to but not exceeding the amount of such interest payable per share of
such class of Voting Stock;
(b) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date; or
(c) the highest preferential amount per share to which the
holders of shares of such class of Voting Stock are entitled in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be in
cash or in the same form as the Interested Stockholder has previously
paid for shares of such class of Voting Stock. If the Interested
Stockholder has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration for such class
of Voting Stock shall be either cash or the form used to acquire the
largest number of shares of such class of Voting Stock previously
acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(a) except as approved by a majority of the Disinterested Directors,
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative) on the
outstanding Preferred Stock; (b) there shall have been (1) no reduction
in the annual rate of dividends paid on the Common Stock (except as
necessary to reflect any subdivision of the Common Stock), except as
approved by a majority of the Disinterested Directors, and (2) an
increase in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of
reducing the number of outstanding shares of the Common Stock, unless
the failure so to increase such annual rate is approved by a majority of
the Disinterested Directors; and (c) such Interested Stockholder shall
have not become the beneficial owner of any additional shares of Voting
Stock except as part of the transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages provided
by the Corporation.
(vi) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations) shall be
mailed to public stockholders of the Corporation at least 30 days prior
to the consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to such
Act or subsequent provisions).
SECTION 4. Certain Definitions. For the purposes of this Article Ninth:
A. A "person" shall mean any individual, firm, corporation or other
entity.
B."Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than 10%
of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within the two-
year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the
then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has (a)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
D. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 4, the number of shares
of Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph C of this Section 4 but shall not include
any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on January 1, 1983.
F. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph B of this Section 4, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member of the Board of Directors of
the Corporation (the "Board") who is unaffiliated with the Interested
Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of
a Disinterested Director who is unaffiliated with the Interested Stockholder
and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board.
H. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc., Automated Quotations System or any system then in use, or if
no such quotations are available, the fair market value on the date in
question of a share of such stock as determined by a majority of the
Disinterested Directors in good faith; and (ii) in the case of property other
than cash or stock, the fair market value of such property on the date in
question as determined by a majority of the Disinterested Directors in good
faith.
I. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in paragraph B(i) and (ii) of Section 3 of this Article Ninth shall include
the shares of Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
SECTION 5. Powers of Disinterested Directors. A majority of the
Disinterested Directors of the Corporation shall have the power and duty to
determine, on the basis of information known to them after reasonable inquiry,
all facts necessary to determine compliance with this Article Ninth, including
without limitation (A) whether a person is an Interested Stockholder, (B) the
number of shares of Voting Stock beneficially owned by any person, (C) whether a
person is an Affiliate or Associate of another, (D) whether the requirements of
paragraph B of Section 3 have been met with respect to any Business Combination,
and (E) whether the assets which are the subject of any Business Combination
have, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination has,
an aggregate Fair Market Value of $25,000,000 or more; and the good faith
determination of a majority of the Disinterested Directors on such matters shall
be conclusive and binding for all the purposes of this Article Ninth.
SECTION 6. No effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article Ninth shall be construed to relieve the Board
of Directors or any Interested Stockholder from any fiduciary obligation imposed
by law.
SECTION 7. Amendment, Repeal, etc. Notwithstanding any other provisions of
this Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Certificate of Incorporation or the Bylaws of the Corporation), the affirmative
vote of the holders of 80% or more of the voting power of the shares of the then
outstanding Voting Stock, voting together as a single class, shall be required
to amend or repeal, or adopt any provisions inconsistent with, this Article
Ninth of this Certificate of Incorporation; provided, however, that the
preceding provisions of this Section 7 shall not be applicable to any amendment
to this Article Ninth of this Certificate of Incorporation, and such amendment
shall require only such affirmative vote as is required by law and any other
provisions of this Certificate of Incorporation, if such amendment shall have
been approved by a majority of the Disinterested Directors.
TENTH: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law for payment of unlawful dividends or unlawful stock repurchases or
redemption, or (iv) for any transaction from which the director derived an
improper personal benefit.
I, GEORGE DAVID, Chairman and Chief Executive Officer of the aforesaid
Corporation, hereby certify that the foregoing Restated Certificate of
Incorporation of the said Corporation was duly adopted by the Board of Directors
in accordance with the provisions of Section 245 of the General Corporation Law
of the State of Delaware; that said foregoing Restated Certificate of
Incorporation merely restates and integrates but does not further amend the
provisions of the Certificate of Incorporation of the aforesaid Corporation as
heretofore amended or supplemented, and there is no discrepancy between those
provisions and the provisions of the foregoing Restated Certificate of
Incorporation.
IN WITNESS WHEREOF, I have executed this Restated Certificate of
Incorporation under the seal of the aforesaid Corporation, duly attested, this
12th day of June, 1997.
GEORGE DAVID
(George David)
Chairman and Chief Executive Officer
Attest: [CORPORATE SEAL]
WILLIAM H. TRACHSEL
(William H. Trachsel)
Secretary
State of Connecticut
SS:
County of Hartford
BE IT REMEMBERED that on this 12th day of June, 1997, personally came before
me, a notary public in and for the said State and County GEORGE DAVID, Chairman
and Chief Executive Officer of UNITED TECHNOLOGIES CORPORATION, a Corporation of
the State of Delaware and the Corporation described in the foregoing Restated
Certificate of Incorporation, known to me personally to be such Chairman and
Chief Executive Officer, and he duly executed the said Restated Certificate of
Incorporation before me and acknowledged that the said Restated Certificate of
Incorporation to be his act and deed and the act and deed of the said
Corporation and the facts stated therein are true; and that the seal affixed to
the said Restated Certificate of Incorporation and attested by the Secretary of
the said Corporation is the common or corporate seal of the said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day
and year as aforesaid.
PATRICIA J. NOLAN
Notary Public
My Commission Expires November 30, 1999.
[NOTARY SEAL]