CONNECTICUT ENERGY CORPORATION
Amended and Restated
Certificate of Incorporation
1. The name of the corporation is Connecticut Energy Corporation (the
"Company").
2. The authorized capital stock of the Company shall consist of one
class of preference stock and one class of common stock as follows:
(a) A class of preference stock which is designated
"Preference Stock". The authorized shares of Preference Stock are
1,000,000 shares having the par value of $1 per share.
(b) A class of common stock which is designated "Common
Stock". The authorized shares of Common Stock are 30,000,000 shares
having the par value of $1 per share.
3. The nature of the business to be transacted, and the purposes to be
promoted or carried out by the Company are as follows:
(a) To invest in, dispose of, buy, sell and otherwise deal in
stocks, bonds and securities of other corporations, and without
limiting the generality of the foregoing, to invest in the securities
of (i) corporations primarily engaged in operations relating to natural
resources and sources of energy and businesses incidental thereto and
(ii) public service companies.
(b) To explore for, drill for, develop, produce, collect,
store, transport, dispose of and otherwise deal in oil, natural gas,
fossil fuel reserves and other fuel sources.
(c) To engage in any other lawful act or activity for which
corporations may be formed under the Stock Corporation Act of the State
of Connecticut.
4. The terms, limitations and relative rights and preferences of each
class of shares are as follows:
(a) The Board of Directors is authorized, from time to time,
to divide the Preference Stock into and issue one or more additional
series, and to fix and determine the number of shares (within the
limits of the authorized but unissued shares of Preference Stock) in
each series, and to determine the terms (including the consideration
for the shares of each such series), limitations and relative rights
and preferences of such Preference Stock and the variations as among
series (all as permitted under Sections 33-340 and 33-341, Connecticut
General Statutes, revision of 1958 as amended or any equivalent section
as may hereafter be enacted).
(b) Subject to the terms, limitations and relative rights and
preferences of the Preference Stock as determined by the Board of
Directors according to its authority set forth above, the holders of
the Common Stock of the Company shall have and possess all rights
appertaining to capital stock under applicable law except as
hereinafter limited.
(c) Authorized shares of Common Stock may be issued and
disposed of from time to time in such amounts, on such terms and for
such consideration as may be fixed and determined by the Board of
Directors.
(d) Holders of Common Stock shall have no preemptive rights to
subscribe to any future issues of any class of Preference Stock now or
hereafter authorized; nor shall they have any preemptive rights to
subscribe to any shares of Common Stock issued upon the exercise of any
conversion privilege appertaining to any class of Preference Stock; nor
to subscribe to any future issues of bonds, debentures, notes or other
evidences of indebtedness which are convertible into stock of any
class, nor to subscribe to any future issues of shares of Common Stock
offered, sold or exchanged for cash or for any consideration other than
cash. Holders of shares of any class of Preference Stock shall have no
preemptive rights to subscribe to any future issues of Common Stock or
shares of any class of Preference Stock, nor to any future issues of
bonds, debentures, notes or other evidences of indebtedness which are
convertible into stock of any class.
(e) Except as may be provided by the Board of Directors with
respect to the Preference Stock, or as provided by law, the holders of
the Preference Stock shall have no voting power or right to notice of
any meetings of shareholders.
5. The minimum amount of stated capital with which this Company shall
do or commence business shall not be less than One Thousand Dollars.
6. The following provisions are inserted for the management of the
business and the conduct of the affairs of the Company, and for further
definition, limitation and regulation of the powers of the Company and its
directors and shareholders:
(a) the business, property and affairs of the company shall be
managed by, or under the direction of, its board of directors. The
number of the directors of the Company (exclusive of directors (the
"Preference Stock Directors") who may be elected by a separate vote of
the holders of then outstanding shares of any class or series of
Preference Stock) shall be fixed from time to time by the By-Laws of
the Company.
(b) The Board of Directors (exclusive of Preference Stock
Directors) shall be divided into three (3) classes, as nearly equal in
number as possible, as shall be provided in the By-Laws of the Company.
At an annual meeting of shareholders in 1984, one class shall be
elected to hold office for a term expiring at the 1985 annual meeting,
one class shall be elected to hold office for a term expiring at the
1986 annual meeting and one class shall be elected to hold office for a
term expiring at the 1987 annual meeting. At each annual meeting of
shareholders of the Company, the date of which shall be fixed by or
pursuant to the By-Laws of the Company, the successors of the class of
directors whose term shall expire at that meeting shall be elected to
hold office for a term expiring at the annual meeting of shareholders
held in the third year following their year of election. Each director
shall hold office until his successor shall have been duly elected and
qualified. The election of directors need not be by ballot unless the
By-Laws so provide. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Advance notice of nominations for the election of
directors shall be given in the manner and to the extent provided in
the By-Laws of the Company.
(d) Subject to the rights of the holders of any class or
series of Preference Stock then outstanding, newly created
directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors from death,
resignation, retirement, disqualification, removal from office or other
cause shall be filled solely by the Board of Directors, acting by the
affirmative vote of not less than a majority of the directors then in
office, even though less than a quorum of the Board of Directors. Any
director so chosen shall hold office until the next election of the
class for which such director shall have been chosen and until his
successor shall be elected and qualified. The shareholders of the
Company shall have no right to fill any vacancies, whether resulting
from an increase in the authorized number of directors or otherwise.
(e) Subject to the rights of holders of any class or series of
Preference Stock then outstanding, any director or the entire Board of
Directors of the Company may be removed only for cause and only by
affirmative vote of (i) the Board of Directors, acting by not less than
a majority of the Directorships or (ii) the holders of eighty percent
(80%) of the combined voting power of the then outstanding shares of
Voting Stock, voting together as a single class. For the purposes of
this Article 6(e), (1) "cause" shall exist only if a director (i) has
been convicted of a felony in a final adjudication or (ii) has been
adjudged in a final adjudication to have wilfully engaged in gross
misconduct materially and demonstrably injurious to the Company and (2)
"final adjudication" shall mean a judgment by a court of competent
jurisdiction which becomes final (i) after completion of all
proceedings for direct review or (ii) after expiration of the time to
obtain initial or further direct review, no such review having been
taken.
(f) As long as the Company owns or controls eighty percent
(80%) or more of the shares of common stock of The Southern Connecticut
Gas Company or any successor thereof ("Southern"), the Board of
Directors of the Company is authorized to consider, in exercising its
judgment on any decision which may come before it, the effect of such
decision on (i) the ratepayers of Southern, (ii) the employees of
Southern, (iii) the economy and residents of the communities served by
Southern, and (iv) the ability of Southern to carry out its duties as a
public service company. The foregoing shall not limit the right of the
Board of Directors to consider all other factors which it may deem
relevant in connection with any such decision.
(g) Notwithstanding any other provisions in this Amended and
Restated Certificate of Incorporation or the By-Laws of the Company
(and notwithstanding the fact that a lesser percentage may be specified
by law or the By-Laws of the Company), the By-Laws of the Company may
be adopted, repealed or amended only upon the affirmative vote of (i)
the holders of eighty percent (80%) of the combined voting power of the
then outstanding shares of Voting Stock, voting together as a single
class, or (ii) the Board of Directors acting by not less than a
majority of the entire Board of Directors.
7. Any action required or permitted to be taken by the shareholders of
the Company must be effected at a duly called annual or special meeting of
shareholders of the Company and may not be effected by any consent in writing by
less than all shareholders of the Company entitled to vote thereon. Except as
otherwise required by law and subject to the rights of the holders of any class
or series of Preference Stock then outstanding, special meetings of the
shareholders may be called only by the Board of Directors acting by not less
than a majority of the entire Board of Directors or as otherwise provided in the
By-Laws. Notice of any special meeting of shareholders shall be given as
provided in the By-Laws.
8. The vote of shareholders of the Company required to approve Business
Combinations (as hereinafter defined) shall be as set forth in this Article 8.
Section 1. In addition to any affirmative vote required by law or by
this Amended and Restated Certificate of Incorporation and except as otherwise
expressly provided in Section 2 of this Article 8:
(a) any merger or consolidation of the Company with (i) any
Interested Shareholder or (ii) any other corporation (whether or not
itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Shareholder; or
(b) any sale, lease, exchange, transfer, mortgage, pledge,
grant of security interest or other disposition (in one transaction or
a series of transactions) to or with any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder of, or directly or
indirectly relating to (i) all or substantially all of the assets of
the Company or (ii) assets of the Company or any of its Subsidiaries
representing in the aggregate more than seventy-five percent (75%) of
the total value of the assets of the Company and its consolidated
Subsidiaries as reflected on the most recent consolidated balance sheet
of the Company and its consolidated Subsidiaries prepared in accordance
with generally accepted accounting principles then in effect; or
(c) (i) any sale, lease, exchange, transfer, mortgage, pledge,
grant of security interest or other disposition (in one transaction or
a series of transactions) to or with any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder of, or directly or
indirectly relating to any assets of the Company or of any Subsidiary
having an aggregate Fair Market Value of $5,000,000 or more, but less
than the amount referred to in clause (ii) of paragraph (b) of this
Section 1, or (ii) any merger or consolidation of any Subsidiary of the
Company having assets with an aggregate Fair Market Value of $5,000,000
or more in a transaction not covered by paragraph (b) of this Section 1
with (x) any Interested Shareholder or (y) any other corporation
(whether or not itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate or Associate of an
Interested Shareholder; or
(d) the issuance or sale by the Company or any Subsidiary (in
one transaction or a series of transactions) to any Interested
Shareholder or any Affiliate or Associate of any Interested Shareholder
of any securities of the Company or any Subsidiary in exchange for
cash, securities or other property (or a combination thereof) having an
aggregate Fair Market Value of $5,000,000 or more, other than the
issuance of securities upon the conversion of convertible securities of
the Company or any Subsidiary which were not acquired by such
Interested Shareholder (or such Affiliate or Associate) from the
Company or a Subsidiary; or
(e) the adoption of any plan or proposal for the liquidation
or dissolution of the Company proposed by or on behalf of any
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
(f) any reclassification of securities (including any reverse
stock split) or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries, or any other
transaction (whether or not with or into or otherwise involving any
Interested Shareholder), which in any such case has the effect,
directly or indirectly, or increasing the proportionate share of the
outstanding shares of any class or series of stock (or securities
convertible into stock) of the Company or any Subsidiary which is
directly or indirectly beneficially owned by any Interested Shareholder
or any Affiliate or Associate of any Interested Shareholder;
shall not be consummated unless (i) such consummation shall have been approved
by the affirmative vote of the holders of at least eighty percent (80%) of the
combined voting power of the then outstanding shares of Voting Stock, voting
together as a single class, (ii) such consummation shall have been approved by
the affirmative vote of a majority of the combined voting power of the then
outstanding shares of Voting Stock held by Disinterested Shareholders, voting
together as a single class, and (iii) a proxy or information statement shall
have been mailed at least thirty (30) days prior to the votes specified in (i)
and (ii) above to all holders of voting stock of the company, which proxy or
information statement shall (w) describe the Business Combination, (x) include
in a prominent place the recommendations, if any, of a majority of the
Disinterested Directors as to the advisability or inadvisability of the Business
Combination, (y) if deemed advisable by a majority of the Disinterested
Directors, include an opinion of a reputable investment banking firm or other
expert as to the fairness or unfairness of the terms of the Business Combination
from the point of view of the shareholders other than the Interested Shareholder
(such investment banking firm to be selected by a majority of the Disinterested
Directors and to be paid a reasonable fee for their services by the Company upon
receipt of such opinion), and (z) be responsive to the pertinent provisions of
the Securities Exchange Act of 1934, as amended, (the "Act") and the rules and
regulations thereunder, or any subsequent provisions replacing such Act, rules
or regulations, whether or not such proxy or information statement is required
by law to be furnished to any holders of the Voting Stock of the Company. The
affirmative votes referred to in clauses (i) and (ii) of the preceding sentence
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.
Section 2. The provisions of Section 1 of this Article 8 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
provisions of this Amended and Restated Certificate of Incorporation if all the
considerations specified in any of the following paragraphs (a), (b), (c) or (d)
are met:
(a) (i) such Business Combination shall have been approved by
a majority of the Disinterested Directors and (ii) the Interested
Shareholder involved in such Business Combination (x) acquired such
status as an Interested Shareholder in a manner substantially
consistent with an agreement or memorandum of understanding approved by
the Board of Directors prior to the time such Interested Shareholder
became an Interested Shareholder and (y) has complied with all
requirements imposed by such agreement or memorandum of understanding;
or
(b) in the case of any Business Combination described in
paragraph (c) or (d) of Section 1 of this Article 8, such Business
Combination shall have been approved by a majority of the Disinterested
Directors; or
(c) all of the six conditions specified in the following
clauses (i) through (vi) shall have been met:
(i) the transaction constituting the Business
Combination shall provide for a consideration to be received
by all holders of each class of Common Stock in exchange for
all their shares of Common Stock, and the aggregate amount of
(x) the cash and (y) the Fair Market Value as of the date of
the consummation of the Business Combination of any
consideration other than cash, to be received per share by
holders of Common Stock in such Business Combination shall be
at least equal to the highest of the following:
(A) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid in order to
acquire any shares of such class of Common Stock
beneficially owned by the Interested Shareholder
which were acquired (i) within the two (2) year
period immediately prior to the Announcement Date or
(ii) in the transaction in which it became an
Interested Shareholder, whichever is higher; and
(B) the Fair Market Value per share of such
class of Common Stock on the Announcement Date or on
the Determination Date, whichever is higher; and
(C) (if applicable) the price per share
equal to the Fair Market Value per share of such
class of Common Stock determined pursuant to
paragraph (c)(i)(B) above, multiplied by the ratio of
(1) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any shares of
such class of Common Stock beneficially owned by the
Interested Shareholder which were acquired within the
two (2) year period immediately prior to the
Announcement Date to (2) the Fair Market Value per
share of such class of Common Stock on the first day
in such two (2) year period upon which any shares of
such class of Common Stock referred to in the
foregoing clause (1) were acquired; and
(ii) the transaction constituting the Business
Combination shall provide for a consideration to be received
by all holders of each class or series of outstanding
Preference Stock in exchange for all of their shares of
Preference Stock, and the aggregate amount of (x) the cash and
(y) the Fair Market Value as of the date of the consummation
of the Business Combination of any consideration other than
cash, to be received per share by holders of shares of such
Preference Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this
clause (c)(ii) shall be required to be met with respect to
every class and series of such outstanding Preference Stock,
whether or not the Interested Shareholder beneficially owns
any shares of a particular class or series of Preference
Stock):
(A)(if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid
in order to acquire any shares of such class
or series of Preference Stock beneficially owned by
the Interested Shareholder which were acquired (i)
within the two (2) year period immediately prior to
the Announcement Date or (ii) in the transaction in
which it became an Interested Shareholder, whichever
is higher; and
(B) (if applicable) the highest preferential
amount per share to which the holders of shares of
such class or series of Preference Stock are entitled
in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the
Company; and
(C) the Fair Market Value per share of such
class or series of Preference Stock on the
Announcement Date or on the Determination Date,
whichever is higher; and
(D) (if applicable) the price per share
equal to the Fair Market Value per share of such
class or series of Preference Stock determined
pursuant to Paragraph (c)(ii)(C) above, multiplied
by the ratio of (1) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid in order to
acquire any shares or such class or series of
Preference Stock beneficially owned by the Interested
Shareholder which were acquired within the two (2)
year period immediately prior to the Announcement
Date to (2) the Fair Market Value per share of such
class or series of Preference Stock on the first day
in such two (2) year period upon which any shares of
such class or series of Preference Stock referred to
in the foregoing clause (1) were acquired; and
(iii) the consideration to be received by holders of
a particular class or series of outstanding Common Stock or
Preference Stock shall be in cash or in the same form as was
previously paid in order to acquire shares of such class or
series of Common Stock or Preference Stock which are
beneficially owned by the Interested Shareholder and, if the
Interested Shareholder beneficially owns shares of any class
or series of Common Stock or Preference Stock which were
acquired with varying forms of consideration, the form of
consideration to be received by holders of such class or
series of Common Stock or Preference Stock shall be either
cash or the form used to acquire the largest number of shares
of such class or series of Common Stock or Preference Stock
beneficially owned by it; and
(iv) after such Interested Shareholder has become an
Interested Shareholder 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 dates
therefor the full amount of any dividends (whether or
not cumulative) payable on any Preference Stock;
(B) there shall have been (1) no reduction
in the annual rate of dividends paid on any class of
Common Stock (except as necessary to reflect any
subdivision of such 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 prevent any such reduction) in the event
of 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 any class of
Common Stock, unless the failure so to increase such
annual rate is approved by a majority of the
Disinterested Directors; and
(C) such Interested Shareholder shall not
have become the beneficial owner of any additional
shares of Voting Stock except as part of the
transaction in which it became an Interested
Shareholder; and
(v) after such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall not
have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance provided by
the Company or any Subsidiary, whether in anticipation of or
in connection with such Business Combination or otherwise; and
(vi) a proxy or information statement shall be mailed
at least on the earlier of (1) thirty (30) days prior to any
vote on the Business Combination or (2) if no vote on such
Business Combination is required, sixty (60) days prior to the
completion of the Business Combination, to all holders of
Voting Stock of the Company (whether or not shareholder
approval of the Business Combination is required), which proxy
or information statement shall (w) describe the Business
Combination, (x) include in a prominent place the
recommendations, if any, of a majority of the Disinterested
Directors as to the advisability or inadvisability of the
Business Combination, (y) if deemed advisable by a majority of
the Disinterested Directors, include an opinion of a reputable
investment banking firm or other expert as to the fairness or
unfairness of the terms of the Business Combination from the
point of view of the shareholders other than the Interested
Shareholder (such investment banking firm to be selected by a
majority of the Disinterested Directors and to be paid a
reasonable fee for their services by the Company upon receipt
of such opinion), and (z) be responsive to the pertinent
provisions of the Act and the rules and regulations
thereunder, or any subsequent provisions replacing such Act,
rules or regulations, whether or not such proxy or information
statement is required by law to be furnished to any holders of
the Voting Stock of this Company; or
(d) in the case of any Business Combination described in
Paragraph (a) or (f) of Section 1 of this Article 8, (i) such Business
Combination shall have been approved by a majority of the Disinterested
Directors, (ii) such Business Combination shall not have resulted,
directly or indirectly, in an increase of more than ten percent (10%)
in the total amount of shares of any class or series of stock or
securities convertible into stock of the Company or any Subsidiary
which was directly or indirectly beneficially owned by any Interested
Shareholder and all Affiliates and Associates of such Interested
Shareholder at the time of the approval of such Business Combination by
a majority of the Disinterested Directors, and (iii) such Business
Combination shall not have been consummated within a period of two (2)
years after the consummation of any other Business Combination
described in Paragraph (a), (b), (c), (d), (e) or (f) of Section 1 of
this Article 8 (whether or not such other Business Combination shall
have been approved by a majority of the Disinterested Directors) which
had the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class or series of stock or
securities convertible into stock of the Company or any Subsidiary
which was directly or indirectly beneficially owned by such Interested
Shareholder or any Affiliate or Associate of such Interested
Shareholder.
Section 3. For the purposes of this Article 8:
(a) A "person" shall mean any individual, firm, corporation,
partnership, trust or other entity.
(b) "Voting Stock" shall mean stock of all classes and series
of the Company entitled to vote generally in the election of directors.
(c) "Interested Shareholder" shall mean any person (other than
the Company or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly,
of ten percent (10%) of more of the combined voting power of
the then outstanding shares of Voting Stock; or
(ii) is an Affiliate of the Company and at any time
within the two (2) year period immediately prior to the date
in question was the beneficial owner, directly or indirectly,
of ten percent (10%) or more of the combined voting power of
the then outstanding shares of Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to
the beneficial ownership of any shares of Voting Stock which
were at any time within the two (2) year period immediately
prior to the date in question beneficially owned by an
Interested Shareholder, 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.
(d) "Business Combination" shall mean any transaction which is
referred to in any one or more of paragraphs (a) through (f) of
Section 1 of this Article 8.
(e) "Disinterested Shareholder" shall mean a beneficial owner
of the Company's Voting Stock who is not an Interested
Shareholder or an Affiliate or an Associate of an Interested
Shareholder.
(f) A person shall be a "beneficial owner" of any Voting
Stock:
(i) which such person or any of its
Affiliates or Associates beneficially owns, directly or
indirectly, or
(ii) which such person or any of its Affiliates or
Associates has (x) 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 (y) the right to vote or
to direct the vote pursuant to any agreement, arrangement or
understanding; or
(iii) which is beneficially owned, directly or
indirectly, by any 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.
(g) For the purposes of determining whether a person is an
Interested Shareholder pursuant to Paragraph (c) of this Section 3, the
number of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned by such person through application of Paragraph (f)
of this Section 3 but shall not include any other shares of Voting
Stock which may be issuable to other persons pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
exchange rights, warrants or options, or otherwise.
(h) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Act as in effect on March 24, 1984.
(i) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the Company; provided, however, that, for the purposes
of the definition of Interested Shareholder set forth in Paragraph (c)
of this Section 3, 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 Company.
(j) "Disinterested Director" means any member of the Board of
Directors of the Company who is unaffiliated with, and not a nominee
of, the Interested Shareholder and was a member of the Board of
Directors prior to the time that the Interested Shareholder became an
Interested Shareholder, and any successor of a Disinterested Director
who is unaffiliated with, and not a nominee of, the Interested
Shareholder and who is recommended to succeed a Disinterested Director
by a majority of Disinterested Directors then on the Board of
Directors.
(k) "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the thirty (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 Act on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of
such stock during the thirty (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.
(l) "Announcement Date" means the date of the first public
announcement of the proposed Business Combination.
(m) "Determination Date" means the date on which the
Interested Shareholder became an Interested Shareholder.
Section 4. A majority of the Disinterested Directors of the Company
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 8, including, without limitation, (a) whether a person is an
Interested Shareholder, (b) the number of shares of Voting Stock beneficially
owned by any person, (c) whether a person is an Affiliate or Associate of
another person, (d) whether the requirements of Section 2 of this Article 8 have
been met with respect to any Business Combination, and (e) whether the assets
which are the subject of any Business Combination, or the consideration to be
received for the issuance or sale of securities by the Company or any Subsidiary
in any Business Combination (i) has an aggregate Fair Market Value of $5,000,000
or more or (ii) represents in the aggregate more than seventy-five percent (75%)
of the total value of the assets of the Company and its consolidated
Subsidiaries as reflected on the most recent consolidated balance sheet of the
Company and its consolidated Subsidiaries prepared in accordance with generally
accepted accounting principles then in effect; and the good faith determination
of a majority of the Disinterested Directors on such matters shall be conclusive
and binding for all purposes of this Article 8.
Section 5. Nothing contained in this Article 8 shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by law.
9. Notwithstanding any other provisions of this Amended and Restated
Certificate of Incorporation and the By-Laws of the Company (and notwithstanding
the fact that a lesser percentage may be specified by law or the By-Laws of the
Company):
(a) The affirmative vote of the holders of eighty (80%) of the
combined voting power of the then outstanding shares of Voting Stock,
voting together as a single class, shall be required to amend or repeal
or adopt any provision inconsistent with Articles 6 and 7 of this
Amended and Restated Certificate of Incorporation; provided, however,
that any such amendment, repeal or adoption that has been recommended
to the shareholders by the affirmative vote of not less than two-thirds
(66-2/3%) of the Disinterested Directors (as defined in Section 3 of
Article 8 of this Amended and Restated Certificate of Incorporation)
shall require only the vote, if any, required under the applicable
provision of the Connecticut Stock Corporation Act. For purposes of
this subsection (a) of this Article 9 only, if at the time when any
such amendment, repeal or adoption is under consideration, there is no
Interested Shareholder (in which event, the definition of Disinterested
Director in subparagraph (j) of Section 3 of Article 8 would be
inapplicable), the "Disinterested Directors" shall be deemed to be
those persons who are then members of the Board of Directors and who
are not then and have not been affiliated with or nominees of any
person who is or has been an Interested Shareholder.
(b) The affirmative vote of the holders of eighty percent
(80%) of the combined voting power of the then outstanding shares of
Voting Stock, voting together as a single class, and the affirmative
vote of the majority of the combined voting power of the then
outstanding shares of Voting Stock held by Disinterested Shareholders
(as defined in Section 3 of Article 8 of this Amended and Restated
Certificate of Incorporation), voting together as a single class, shall
be required to amend or repeal or adopt any provision inconsistent with
this Article 9 or Article 8 of this Amended and Restated Certificate of
Incorporation; provided, however, that any such amendment, repeal or
adoption that has been recommended to shareholders by the affirmative
vote of not less than two-thirds (66-2/3%) of the Disinterested
Directors at a time when there is no Interested Shareholder, as defined
in Section 3 of Article 8 of the Amended and Restated Certificate of
Incorporation, shall require only the vote, if any, required under the
applicable provision of the Connecticut Stock Corporation Act. For
purposes of this subsection (b) of this Article 9 only, the
"Disinterested Directors" shall be deemed to be those persons who are
then members of the Board of Directors and who are not then and have
not been affiliated with or nominees of any person who has been an
Interested Shareholder.
10. The personal liability of a director of the Company to the Company
or its shareholders for monetary damages for breach of duty as a director shall
be limited to the compensation received by the director for serving the Company
as a director during the year of the violation if such breach did not: (a)
involve a knowing and culpable violation of law by the director, (b) enable the
director or an associate, as defined in subsection (2) of Section 33-374(b) of
the Business Corporation Act, to receive an improper personal gain, (c) show a
lack of good faith and a conscious disregard for the duty of the director to the
Company under circumstances in which the director was aware that his conduct or
omission created an unjustifiable risk of serious injury to the Company, (d)
constitute a sustained or unexcused pattern of inattention that amounted to an
abdication of the director's duty to the Company, or (e) create liability under
Section 33-32l of the Business Corporation Act. This provision shall not limit
or preclude the liability of a director for any act or omission occurring prior
to the effective date of this Article 10.