EXHIBIT A
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF WEST PHARMACEUTICAL SERVICES, INC.
1. The name of the Corporation is West Pharmaceutical
Services, Inc.
2. The location and post office address of the
Corporation's registered office in Pennsylvania is c/o
Corporation Service Company, 319 Market Street, Harrisburg,
PA 17101.
3. The Corporation is incorporated under the
Pennsylvania Business Corporation Law and shall have
unlimited power to engage in and to do any lawful act
concerning any or all lawful business, including
manufacturing, processing, research and development, for
which corporations may be incorporated under the
Pennsylvania Business Corporation Law.
4. The term for which the Corporation is to exist is
perpetual.
5. Capital Stock. The aggregate number of shares of
capital stock which the Corporation shall have authority to
issue is 53,000,000 shares, consisting of (i) 3,000,000
shares of Preferred Stock, par value $.25 per share
("Preferred Stock") and (ii) 50,000,000 shares of Common
Stock, par value $.25 per share ("Common Stock").
The following is a statement of the designations,
preferences qualifications, limitations, restrictions and
the special or relative rights granted to or imposed upon
the shares of each such class:
Preferred Stock
(a) Issue in Series. Preferred Stock may be
issued from time to time in one or more series, each such
series to have the terms stated herein and in the resolution
of the board of directors providing for its issue. All
shares of any one series of Preferred Stock shall be
identical, but shares of different series of Preferred Stock
need not rank equally or be identical except insofar as
provided by law or hereunder.
(b) Creation of Series. The board of directors
shall have authority by resolution to cause to be created
one or more series of Preferred Stock, and to determine and
fix with respect to each series, prior to the issuance of
any shares of the series to which such resolution relates:
(i) The distinctive designation of the
series and the number of shares which shall constitute the
series, which number may be increased or decreased (but not
below the number of shares then outstanding) from time to
time by action of the board of directors;
(ii) The dividend rate and the times of
payment of dividends on the shares of the series, whether
dividends shall be cumulative, and, if so, from what date or
dates;
(iii) The price or prices at which, and
the terms and conditions on which, the shares of the series
may be redeemed at the option of the Corporation;
(iv) Whether or not the shares of the series
shall be entitled to the benefit of a retirement or sinking
fund to be applied to the purchase or redemption of such
shares and, if so entitled, the annual amount of such fund
and the terms and provisions relative to the operation
thereof;
(v) Whether or not the shares of the series
shall be convertible into, or exchangeable for, shares of
any other series of the same or any other class or classes
of stock of the Corporation, and if so convertible or
exchangeable, the conversion price or prices, or the rates
of exchange, and any adjustments thereof, if any, at which
such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange;
(vi) The rights of the shares of the series
in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(vii) Whether or not the shares of the
series shall have priority over or parity with or be junior
to the shares of any other series or class in any respect or
shall be entitled to the benefit of limitations restricting
the issuance of shares of any other series or class having
priority over or being on a parity with the shares of such
series in any respect, or restricting the payment of
dividends on, or the making of other distributions in
respect of shares of any other series or class ranking
junior to the shares of the series as to dividends or
assets, or restricting the purchase or redemption of the
shares of any such junior series or class, and the terms of
any such restrictions;
(viii) Whether the series shall have
voting rights, in addition to the voting rights provided by
law, and, if so, the terms of such voting rights; and
(ix) Any other preferences qualifications,
privileges and other relative or special
rights and limitations of that series.
(c) Dividends. Holders of Preferred Stock shall
be entitled to receive, when and as declared by the board of
directors, out of funds legally available for the payment
thereof, dividends at the rates fixed by the board of
directors for the respective series, and no more, before any
dividends shall be declared and paid, or set apart for
payment, on Common Stock with respect to the same dividend
period.
(d) Preference on Liquidation. In the event of
the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, holders of each series of
Preferred Stock shall be entitled to receive the amount
fixed for such series plus, in the case of any series on
which dividends shall have been determined by the board of
directors to be cumulative, an amount equal to all dividends
accumulated and unpaid thereon to the date of final
distribution whether or not earned or declared. If the
assets of the Corporation are not sufficient to pay such
amounts in full, holders of all shares of Preferred Stock
shall participate ratably in the distribution of assets in
proportion to the full amounts to which they are entitled or
in such order or priority, if any, as shall have been fixed
in the resolution or resolutions providing for the issuance
of the series of Preferred Stock. Neither the merger nor
consolidation of the Corporation into or with any other
corporation, nor a sale, transfer or lease of all or part of
its assets, shall be deemed a liquidation of the Corporation
within the meaning of this paragraph.
(e) Redemption. The Corporation at the option of
the board of directors may redeem all or part of the shares
of any series of Preferred Stock on the terms and conditions
fixed for such series. In case of the redemption of less
than all outstanding shares of any series of Preferred
Stock, the shares to be redeemed shall be selected by lot or
in such other manner as the board of directors determines.
(f) Voting Rights. Except as otherwise required
by law or as otherwise provided in any certificate creating
any series of Preferred Stock, the holders of such of the
series of Preferred Stock, if any, as shall have been
granted such power pursuant to any certificate creating any
series of Preferred Stock shall, together with the holders
of Common Stock, exclusively possess voting power in the
election of directors and for all other purposes, and the
holders of the other series of Preferred Stock shall have no
voting power and shall not be entitled to any notice of any
meeting of shareholders.
Series A Junior Participating Preferred Stock
(a) Designation and Amount. There shall be a
series of Preferred Stock designated as "Series A Junior
Participating Preferred Stock" and the aggregate number of
shares constituting such series shall be 50,000.
(b) Dividends and Distributions.
(i) Subject to the prior and superior rights
of the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of Series A
Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive,
when, as and if declared by the board of directors out of
funds legally available for the purpose, quarterly dividends
payable in cash on March 31, June 30, September 30 and
December 31 in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A
Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a)
$10 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 times the aggregate
per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A
Junior Participating Preferred Stock. In the event the
Corporation shall at any time after January 16, 1990 (the
"Rights Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the amount to which holders of shares
of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (b) of
the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(ii) The Corporation shall declare a
dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (i)
above immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $10 per share on the
Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(iii) Dividends shall begin to
accrue and be cumulative on outstanding shares of Series A
Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of
such shares of Series A Junior Participating Preferred
Stock, unless the date of issue of such shares is prior to
the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders
of shares of Series A Junior Participating Preferred Stock
in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series A Junior participating Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
(c) Voting Rights. The holders of shares of
Series A Junior Participating Preferred Stock shall have the
following voting rights:
(i) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of
the shareholders of the Corporation. In the event the
Corporation shall at any time after the Rights Declaration
Date (a) declare any dividend on Common Stock payable in
shares of Common Stock, (b) subdivide the outstanding Common
Stock, or (c) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the number
of votes per share to which holders of shares of Series A
Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(ii) Except as otherwise provided herein or
by law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of
common Stock shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(iii) (A) If at any time dividends on
any Series A Junior Participating Preferred Stock shall be
in arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period")
which shall extend until such time when all accrued and
unpaid dividends for all previous quarterly dividend periods
and for the current quarterly dividend period on all shares
of Series A Junior Participating Preferred Stock then
outstanding shall have been declared and paid or set apart
for payment. During each default period, all holders of
Preferred Stock (including holders of the Series A Junior
Participating Preferred Stock) with dividends in arrears in
an amount equal to six (6) quarterly dividends thereon,
voting as a class, irrespective of series, shall have the
right to elect two (2) directors.
(B) During any default period, such
voting right of the holders of Series A Junior Participating
Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (C) of this
paragraph (c)(iii) or at any annual meeting of shareholders,
and thereafter at annual meetings of shareholders, provided
that neither such voting right nor the right of the holders
of any other series of Preferred Stock, if any, to increase,
in certain cases, the authorized number of directors shall
be exercised unless the holders of ten percent (10)% in
number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of
the holders of Common Stock shall not affect the exercise by
the holders of Preferred Stock of such voting right. At any
meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing
default period, they shall have the right, voting as a
class, to elect directors to fill such vacancies, if any, in
the board of directors as may then exist up to two (2)
directors or, if such right is exercised at an annual
meeting, to elect two (2) directors. If the number which
may be so elected at any special meeting does not amount to
the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number of
directors as shall be necessary to permit the election by
them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect
directors in any default period and during the continuance
of such period, the number of directors shall not be
increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights
of any equity securities ranking senior to or pari passu
with the Series A Junior Participating Preferred Stock.
(C) Unless the holders of Preferred
Stock shall, during an existing default period, have
previously exercised their right to elect directors, the
board of directors may order, or any shareholder or
shareholders owning in the aggregate not less than ten
percent (10%) of the total number of shares of Preferred
Stock outstanding, irrespective of series, may request, the
calling of a special meeting of the holders of Preferred
Stock, which meeting shall thereupon be called by the
President, a Vice-President or the Secretary of the
Corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to
vote pursuant to this subparagraph (C) shall be given to
each holder of record of Preferred Stock by mailing a copy
of such notice to him at his last address as the same
appears on the books of the Corporation. Such meeting shall
be called for a time not earlier than 20 days and not later
than 60 days after such order or request or in default of
the calling of such meeting within 60 days after such order
or request, such meeting may be called on similar notice by
any shareholder or shareholders owning in the aggregate not
less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding the provisions
of this subparagraph (C), no such special meeting shall be
called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the
shareholders.
(D) In any default period, the holders
of Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled to
elect the whole number of directors until the holders of
Preferred Stock shall have exercised their right to elect
two (2) directors voting as a class, after the exercise of
which right (x) the directors so elected by the holders of
Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until
the expiration of the default period, and (y) any vacancy in
the board of directors may (except as provided in
subparagraph (B) of this paragraph (c)(iii) be filled by
vote of a majority of the remaining directors theretofore
elected by the holders of the class of stock which elected
the director whose office shall have become vacant.
References in this subparagraph (D) to directors elected by
the holders of a particular class of stock shall include
directors elected by such directors to fill vacancies as
provided in clause (y) of the preceding sentence.
(E) Immediately upon the expiration of
a default period, (x) the right of the holders of Preferred
Stock as a class to elect directors shall cease, (y) the
term of any directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of
directors shall be such number as may be provided for in the
Articles of Incorporation or Bylaws irrespective of any
increase made pursuant to the provisions of subparagraph (B)
of this paragraph (c)(iii) (such number being subject,
however, to change thereafter in any manner provided by law
or in the Articles of Incorporation or Bylaws). Any
vacancies in the board of directors effected by the
provisions of clauses (y) and (z) in the preceding sentence
may be filled by a majority of the remaining directors.
(iv) Except as set forth herein, holders of
Series A Junior participating Preferred Stock shall have no
special voting rights and their consent shall not be
required (except to the extend they are entitled to vote
with holders of Common Stock as set forth herein) for taking
any corporate action.
(d) Certain Restrictions
(i) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Junior
Participating Preferred Stock as provided in paragraph (b)
are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on
shares of Series A Junior Participating Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not
(A) declare or pay dividends on, make
any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(B) declare or pay dividends on or make
any other distributions on any shares of stock ranking on a
party (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably
on the Series A Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(C) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock; or
(D) purchase or otherwise acquire for
consideration any shares of Series A Junior Participating
Preferred Stock, or any shares of stock ranking on a parity
with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing
or by publication (as determined by the board of directors)
to all holders of such shares upon such terms as the board
of directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(ii) the Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph
(d)(i), purchase or otherwise acquire such shares at such
time and in such manner.
(e) Reacquired Shares. Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall
be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the board of
directors, subject to the conditions and restrictions on
issuance set forth herein.
(f) Liquidation, Dissolution or Winding Up.
(i) Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the
holders of shares of Series A Junior Participating Preferred
Stock shall have received $10 per share, plus an amount
equal to accrued and unpaid dividends any distribution
thereon, whether or not declared, to the date of such
payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the
holders of shares of Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (a)
the Series A Liquidation Preference by (b) 1,000 (as
appropriately adjusted as set forth in paragraph (iii) below
to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such
number in clause (b), the AAdjustment Number@). Following
the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior participating
Preferred Stock and common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with
respect to such Preferred Stock and common Stock, on a per
share basis, respectively.
(ii) In the event, however, that there are
not sufficient assets available to permit payment in full of
the Series A Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any,
which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation
preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(iii) In the event the Corporation shall
at any time after the Rights Declaration Date (a) declare
any dividend on Common Stock payable in shares of Common
Stock, (b) subdivide the outstanding Common Stock, or (c)
combine the outstanding common Stock into a smaller number
of shares, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any
such case the shares of Series A Junior Participating
Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to
1,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number
of shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating Preferred
Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(h) No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
(i) Ranking. The Series A Junior Participating
Preferred Stock shall rank junior to all other series of
Preferred Stock as to the payment of dividends and the
distribution of assets unless the terms of any such series
shall provide otherwise.
(j) Amendment. The Articles of Incorporation
of the Corporation shall not be further amended in any
manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
(k) Fractional Shares. Series A Junior
Participating Preferred Stock may be issued in fractions of
a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights,
receive dividends participate in distributions and to have
the benefit of all other rights of holders of Series A
Junior Participating Preferred Stock.
Common Stock
(a) Dividends. Holders of Common Stock shall be
entitled to receive such dividends as may be declared by the
board of directors, except that the Corporation will not
declare, pay or set apart for payment any dividend on shares
of Common Stock (other than dividends payable in Common
Stock), or directly or indirectly make any distribution on,
redeem, purchase or otherwise acquire any such shares, if at
the time of such action the Corporation is in default with
respect to any dividend due and payable on, or any sinking
or purchase fund requirement relating to, any shares of
Preferred Stock.
(b) Distribution of Assets. In the event of
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, holders of Common Stock shall be
entitled to receive pro rata all of the remaining assets of
the Corporation available for distribution to its
shareholders after all amounts to which the holders of
Preferred Stock are entitled have been paid or set aside in
cash for payment.
(c) Voting Rights. Except as otherwise required
by law or provided in any certificate creating any series of
Preferred Stock, the holders of Common Stock shall have the
exclusive right to vote in the election of directors and for
all other purposes, each such holder being entitled to one
vote for each share thereof held.
6. Vote Required for Certain Significant Transactions
(a) Higher Vote for Certain Significant
Transactions. In addition to any affirmative vote required
by law or these Articles of Incorporation, and except as
otherwise expressly provided in paragraph (b) of this
Article 6:
(i) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with
(a) any Related Person (as hereinafter defined), or (b) any
other corporation (whether or not itself a Related Person)
which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of a Related Person; or
(ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition(in one transaction or
a series of transactions) to or with any Related Person or
any Affiliate of any Related Person of any assets of the
Corporation or any Subsidiary having an aggregate Fair
Market Value (as hereinafter defined) of $1,000,000 or more;
or
(iii) 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 Related Person or any Affiliate of
any Related Person in exchange for cash, securities or other
property (or a combination thereof) having an aggregate Fair
Market Value of $1,000,000 or more; or
(iv) the purchase by the Corporation or any
Subsidiary (in one transaction or a series of transactions
within a two year period) of any outstanding shares of
capital stock of the Corporation which entitles the holder
thereof to vote generally in the election of directors (the
"Voting Stock") in exchange for cash, securities or other
property (or a combination thereof) having an aggregate Fair
Market Value of $1,000,000 or more; or
(v) the adoption of any plan or proposal for
the liquidation or dissolution of the Corporation proposed
by or on behalf of a Related Person or any Affiliate of any
Related Person; or
(vi) 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 a Related Person) 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 Related Person or any
Affiliate of any Related Person;
shall require the affirmative vote of the holders of at
least 80% of the voting power of the then-outstanding shares
of voting Stock, voting together as a single class. (For
purposes of this Article 6, each share of the Voting Stock
shall have the number of votes granted to it pursuant to
Article 5 of these Articles of Incorporation). Such
affirmative vote shall be required notwithstanding 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.
The term ASignificant Transaction@ as used in this
Article 6 shall mean any transaction which is referred to in
any one or more of paragraphs (i) through (vi) of paragraph
(a) of this Article 6.
(b) When Higher Vote is Not Required. The
provisions of paragraph (a) of this Article 6 shall not be
applicable to any particular Significant Transaction, and
such Significant Transaction shall require only such action
as is required by law, the Bylaws of the Corporation, and
any other provision of these Articles of Incorporation, if
all of the conditions specified in either of the following
paragraphs (i) and (ii) are met:
(i) The Significant Transaction shall have
been approved by a majority of the continuing Directors (as
hereinafter defined) or
(ii) All of the following conditions shall
have been met:
(A) The aggregate amount of the cash
and the Fair Market Value as of the date of the consummation
of the Significant Transaction of consideration other than
cash to be received per share by holders of Common Stock in
such Significant Transaction shall be at least equal to the
highest of the following:
(1) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Related Person for any
shares of Common Stock acquired by it (a) within the two-
year period immediately prior to the first public
announcement of the proposal of the significant Transaction
(the "Announcement Date"), or (b) in the transaction in
which it became a Related Person, whichever is higher; and
(2) the Fair Market Value per
share of Common Stock on the Announcement Date or on the
date on which the Related Person became a Related Person,
whichever is higher; and
(3) the earnings per share of
Common Stock for the four full consecutive fiscal quarters
immediately preceding the Announcement Date as to which
financial results have been published by the Corporation,
multiplied by the then highest price/earnings multiple (if
any) of such Related Person or any of its Affiliates as
customarily computed and reported in the financial
community; and
(4) the price per share equal to
the Fair Market Value per share of Common Stock determined
pursuant to subparagraph (A)(2) of this paragraph (b)(ii),
multiplied by a fraction the numerator of which is the
highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers= fees)
paid by the Related Person for any shares of Common Stock
acquired by it within the two-year period immediately prior
to the Announcement Date and the denominator of which is the
Fair Market Value per share of Common Stock on the first day
in such two-year period upon which the Related Person
acquired any shares of Common Stock.
(B) the consideration to be received by
the holders of Common Stock in such Significant Transaction
shall be either cash or the same type of consideration used
by the Related Person in acquiring the largest portion of
its holdings of Common Stock prior to the first public
announcement of the proposed Significant Transaction.
(C) After such Related Person has
become a Related Person and prior to the consummation of
such Significant Transaction: (1) there shall have been (a)
no failure to pay nor reduction in the annual rate of
dividends paid on the Common Stock (as such rate may be
adjusted from time to time to reflect changes in the
Corporation=s capitalization) unless such failure to pay or
reduction is approved by a majority of the continuing
Directors; and (2) such Related Person shall not have become
the beneficial owner of any additional shares of Voting
Stock except as part of the transaction which results in
such Related Person becoming a Related Person.
(D) after such Related Person has
become a Related Person, such Related Person shall not have
received the benefit, directly or indirectly (except
proportionately as a shareholder of the Corporation), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or
in connection with such Significant Transaction or
otherwise.
(E) A proxy or information statement
describing the proposed Significant Transaction 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 shareholders of the
Corporation at least 30 days prior to the consummation of
such Significant Transaction (whether or not such proxy or
information statement is required to be mailed pursuant to
such Act or subsequent provisions).
(c) Certain Definitions. For the purposes of
this Article 6:
(i) A "person" shall mean any individual,
firm, corporation or other entity.
(ii) "Related Person" shall mean any person
(other than the Corporation or any Subsidiary) who or which:
(A) is the beneficial owner, directly
or indirectly, of more than 10% of the voting power of the
outstanding Voting Stock; or
(B) 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
(C) 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 Related Person,
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 1993.
If two or more person shall at any time be
"Related Persons," each Related Person whose involvement in
a transaction causes it to be a Significant Transaction
shall be treated as: (a) "the Related Person" for purposes
of the application of the requirements of paragraph (b) of
this Article 6 to such transaction, and (b) "the Related
Person in question" for purposes of determining whether a
person is a "Continuing Director" with respect to such
transaction.
(iii) A person shall be a "beneficial owner" of
any Voting Stock:
(A) which such person or any of its
Affiliates or Associates (as hereinafter defined)
beneficially owns, directly or indirectly; or
(B) which such person or any of its
Affiliates or Associates has (1) 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 (2)
the right to vote pursuant to any agreement, arrangement or
understanding; or
(C) which is 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.
(iv) For the purposes of determining whether a
person is a Related Person pursuant to paragraph (c)(ii),
the number of share of Voting Stock deemed to be outstanding
shall include shares deemed owned through application of
paragraph (c)(iii) 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.
(v) "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulation under the Securities
Exchange Act of 1934, as in effect on May 5, 1983.
(vi) "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 Related
Person set forth in paragraph (c)(ii), 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.
(vii) "Continuing Director" means any member of
the board of directors of the Corporation (the "Board") who
(a) was a member of the Board as of May 5, 1983, or (b) is
not affiliated with the Related Person and was a member of
the Board prior to the time that the Related Person became a
Related Person, or (c) is a successor of a Continuing
Director who is unaffiliated with the Related Person and is
recommended to succeed a Continuing Director by a majority
of Continuing Directors then on the Board.
(viii) "Fair Marker Value" means: (a) 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
Deals, 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 the Board in good faith; and (b) 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 the Board in good faith.
(ix) In the event of any Significant Transaction
in which the Corporation survives, the phrase "consideration
other than cash to be received" as used in subparagraph (A)
of paragraph (b)(ii) of this Article 6 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.
(x) The Continuing Directors of the Corporation
shall have the power and duty to determine for the purposes
of this Article 6, on the basis of information known to them
after reasonable inquiry, (a) whether a person is a Related
Person, (b) the number of shares of Voting Stock
beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, and (d) whether the
assets which are the subject of any Significant Transaction
have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any
Subsidiary in any Significant Transaction has an aggregate
Fair Market Value of $1,000,000 or more.
(d) No Effect on Fiduciary Obligations of
Related Persons. Nothing contained in this Article 6 shall
be construed to relieve any Related Person from any
fiduciary obligation imposed by law.
7. Evaluation of Certain Proposals by the Board of
Directors. The board of directors of the Corporation, when
evaluating any proposal from another party to (a) make a
tender offer for securities of the Corporation, (b) merge or
consolidate the Corporation with another corporation, (c)
purchase or otherwise acquire substantially all of the
properties or assets of the Corporation, (d) engage in any
transaction of the sort specified in paragraph (a) of
Article 6 of these Articles of Incorporation, or (e) engage
in any other transaction having a similar effect upon the
properties, operations or control of the Corporation, shall,
in connection with the exercise of its judgment in
determining what is the best interests of the Corporation
and its shareholders, give due consideration to the
following:
(i) the character, integrity, business
philosophy and financial status of the other party or
parties to the transaction;
(ii) the consideration to be received by the
Corporation or its shareholders in connection with such
transaction, as compared to: (a) the current market price
or value of the Corporation's properties or securities; (b)
the estimated future value of the Corporation, its
properties or securities; and (c) such other measures of the
value of the Corporation, its properties or securities as
the directors may deem appropriate.
(iii) the projected social, legal and
economic effects of the proposed action or transaction upon
the Corporation, its employees, suppliers and customers and
the communities in which the Corporation does business;
(iv) the general desirability of the
Corporation's continuing as an independent entity; and
(v) such other factors as the board of
directors may deem relevant.
8. Directors
(a) Number, Election and Term. The number
of the directors of the Corporation shall be fixed from time
to time by or pursuant to the Bylaws of the Corporation.
The directors shall be classified with respect to the time
for which they severally hold into three classes, as nearly
their equal in number as possible, as shall be provided in
the manner specified in the bylaws of the Corporation. At
the annual meeting of shareholders held in 1990, one class
shall be originally elected for a term expiring at the
annual meeting of shareholders to be held in 1991, another
class shall be originally elected for a term expiring at the
annual meeting of shareholders to be held in 1992, and
another class shall be originally elected for a term
expiring at the annual meeting of shareholders to be held in
1993, with the members of each class to hold office until
their successors are elected and qualified. At each
succeeding annual meeting of the shareholders of the
Corporation, the successors of the class of directors whose
term expires at that meeting shall, subject to paragraph (c)
of this Article 8, be elected by plurality vote of all votes
cast at such meeting to hold office for a term expiring at
the annual meeting of shareholders held in the third year
following the year of their election.
(b) Vacancies. Vacancies in the board of
directors, including vacancies resulting from an increase in
the number of directors, shall be filled only by a majority
of the directors then in office, though less than a quorum,
and each person so elected shall be a director to serve for
the balance of the unexpired term and until his successor is
duly elected and qualified.
(c) Cumulative Voting in Certain Circumstances
(i) Except as and to the extent otherwise
provided in this paragraph (c) shareholders of the
Corporation shall not be entitled to cumulative voting
rights in any election of directors of the Corporation.
(ii) There shall be cumulative voting in any
election of directors of the Corporation on or after the
occurrence of both of the following events:
(A) the public announcement (which, for
purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), by the Corporation or a 40% Shareholder
that a 40% Shareholder has become such.
and
(B) such 40% Shareholder makes, or in any
way participates in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are defined or
used in Regulation 14A under the Exchange Act) or becomes a
"participant" in any "election contest" (as such terms are
defined or used in Rule 14a-11 of the Exchange Act) with
respect to the Corporation; seeks to advise or influence any
person (within the meaning of Section 13(d)(3) of the
Exchange Act) with respect to the voting of any securities
of the Corporation: or executes any written consent in lieu
of a meeting of holders of the Voting Stock.
"40% Shareholder" shall mean any Person who or which,
together with all Affiliates and Associate of such Person,
shall be the Beneficial Owner of 40% or more of the Voting
Stock but shall not include (i) the Corporation, (ii) any
wholly owned Subsidiary, (iii) any employee benefit plan of
the Corporation or of any Subsidiary, or (iv) any Person
holding securities of the Corporation for or pursuant to the
terms of any such plan.
Notwithstanding the foregoing, no Person shall become a "40%
Shareholder" as the result of an acquisition of Common Stock
by the Corporation which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to 40% or more of the
Voting Stock; provided, however, that if a Person who would
otherwise be a 40% Shareholder but for the provisions of
this sentence shall, after such share purchases by the
Corporation, become the Beneficial Owner of any additional
Voting Stock then such Person shall be deemed to be a "40%
Shareholder."
(ii) Certain Definitions. For purposes of
this Article 8:
"Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in rule 12b-2 of the General
Rules and Regulations under the Exchange Act as in effect on
May 3, 1990.
A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:
(A) which such Person or any such Persons's
affiliates or Associates beneficially owns, directly or
indirectly:
(B) which such Person or any of such Person's
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 (whether or not in writing), or upon the
exercise of conversion rights, exchange rights, rights
(other than the Rights granted pursuant to the Flip-In
Rights Agreement and Flip-Over-Rights Agreement between the
Corporation and American Stock Transfer & Trust Company,
dated as of January 16, 1990), warrants or options, or
otherwise or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided, however,
that a Person shall not be deemed the Beneficial Owner of,
or to beneficially own, securities tendered pursuant to a
tender or exchange offer made by or on behalf of such Person
or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange;
or
(C) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any securities of
the Corporation.
"Person" shall mean any individual, firm, corporation
or other entity, and shall include any successor (by merger
or otherwise) of such entity.
"Subsidiary" shall mean any corporation or other entity
of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or
indirectly, by the Corporation.
"Voting Stock" means Common Stock and any other
securities of the Corporation entitled to vote generally for
the election of directors or any security convertible into
or exchangeable for or exercisable for the purchase of
Common Stock or other securities of the Corporation entitled
to vote generally for the election of directors.
9. Vote Required for Amendment of Articles 6, 7, 8 or
9. Any provision in these Articles of Incorporation or in
the Bylaws of the Corporation to the contrary
notwithstanding, no provisions of Articles 6, 7, 8 or 9 of
these Articles shall be altered, amended, supplemented or
repealed by the shareholders of the Corporation, and no
provision of the Bylaws or of these Articles of
Incorporation inconsistent with such provisions shall be
adopted by the shareholders of the Corporation, except by
the affirmative vote of the holders of at least 80% of the
outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors,
considered for this purpose as one class.