EXHIBIT 3.1
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
AMGEN INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Amgen Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution
was adopted by the Board of Directors of the Corporation as required
by Section 151 of the General Corporation Law at a meeting duly
called and held on February 18, 1997.
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation (hereinafter
called the "Board of Directors" or the "Board") in accordance with
the provisions of the Certificate of Incorporation, the Board of
Directors hereby creates a series of Preferred Stock, par value
$.0001 per share (the "Preferred Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the
relative rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating
Preferred Stock" (the "Series A Preferred Stock") and the number of
shares constituting the Series A Preferred Stock shall be 750,000.
Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce the
number of shares of Series A Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock,
in preference to the holders of Common Stock, par value $.0001
per share (the "Common Stock"), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash
on the first day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the greater of
(a) $1.00 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 Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under clause
(b) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section 2 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 $1.00 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue
of such shares, 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 Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A 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 Preferred Stock
entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series
A Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred Stock shall entitle
the holder thereof to 1,000 votes on all matters submitted to a
vote of the stockholders of the Corporation. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock
or any similar stock, or by law, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided
by law, 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 taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A 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;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior 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 Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or
any shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any Subsidiary of the
Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and canceled 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
subject to the conditions and restrictions on issuance set forth
herein, in the Certificate of Incorporation, or in any other
Certificate of Designations creating a series of Preferred Stock or
any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon
any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock
shall have received $1,000 per share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of
shares of Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount to
be distributed per share to holders of shares of Common Stock, or (2)
to the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in proportion to
the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the
event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause
(1) 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 are
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination
or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or
any other property, then in any such case each share of Series A
Preferred Stock shall at the same time be similarly exchanged or
changed into 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 declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares
of Common Stock, 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 Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A
Preferred Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all series of any other class of the Corporation's
Preferred Stock, except to the extent that any such other series
specifically provides that it shall rank on a parity with or junior
to the Series A Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation
of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights
of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series A Preferred Stock, voting together
as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Corporation by its Chairman of the Board
and attested by its Secretary this 9th day of April, 1997.
/s/ Gordon M. Binder
---------------------
Chairman of the Board
Gordon M. Binder
Attest:
/s/ George A. Vandeman
----------------------
Secretary
George A. Vandeman
CERTIFICATE OF AMENDMENT
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
AMGEN INC.
AMGEN INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify:
FIRST: That a resolution was duly adopted by the Board of
Directors of the Corporation setting forth a proposed amendment to
the Restated Certificate of Incorporation of the Corporation, and
declaring said amendment to be advisable and recommended for approval
by the stockholders of the Corporation. The resolution setting forth
the proposed amendment is as follows:
NOW, THEREFORE, BE IT RESOLVED, that the first
paragraph of the Fourth Article of the restated Certificate
of Incorporation of the Corporation be, and it hereby is,
amended to read in full as follows:
"FOURTH: This corporation is authorized to issue
two (2) classes of stock to be designated, respectively,
"Preferred Stock" and "Common Stock." The total number of
shares which this corporation is authorized to issue is
Seven Hundred Fifty-Five Million (755,000,000) shares, of
which Five Million (5,000,000) shares shall be Preferred
Stock and Seven Hundred Fifty Million (750,000,000) shares
shall be Common Stock, all with a par value of $.000l."
SECOND: That, thereafter, pursuant to a resolution of the
Board of Directors, the officers of the Corporation solicited the
vote of the stockholders thereof at the Annual Meeting of
Stockholders in favor of the amendment, and the stockholders of the
Corporation approved the amendment by a majority of the outstanding
stock entitled to vote thereon.
THIRD: That said amendment was duly adopted in accordance
with the provisions of Section 242 of the Delaware General
Corporation Law.
FOURTH: That the capital of said corporation shall not be
reduced under or by reason of said amendment.
IN WITNESS WHEREOF, AMGEN INC. has caused this Certificate
of Incorporation to be signed by Gordon M. Binder, its Chief
Executive Officer, and Arthur F. Staubitz, its Secretary, on this
24th day of July, 1991.
/s/ Gordon M. Binder
--------------------
Gordon M. Binder, Chief Executive
Officer
ATTEST:
/s/ Arthur F. Staubitz
----------------------
Arthur F. Staubitz, Secretary
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
AMGEN INC.
Amgen Inc., a corporation organized under the General
Corporation Law of the State of Delaware (the "Corporation") does
hereby certify:
FIRST: That at a meeting of the Board of Directors of the
Corporation, resolutions were duly adopted setting forth a proposed
amendment of the Certificate of Incorporation, declaring said
amendment to be advisable and calling for the officers of the
Corporation to solicit the stockholders thereof to adopt such
amendment. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the first paragraph of the Fourth Article of
the Restated Certificate of Incorporation of the Corporation be,
and it hereby is, amended to read in full as follows:
"FOURTH: This corporation is authorized to issue two (2)
classes of stock to be designated respectively, "Preferred
Stock" and "Common Stock." The total number of shares which
this corporation is authorized to issue is one hundred thirty
million (130,000,000) shares, of which Five Million (5,000,000)
shares shall be Preferred Stock and one hundred twenty-five
million (125,000,000) shares shall be Common Stock, all with a
par value of $.0001."
SECOND: That thereafter, pursuant to a resolution of the Board
of Directors, the officers of the Corporation solicited the vote of
the stockholders thereof at the Annual Meeting of Stockholders in
favor of the amendment, and the stockholders of the Corporation
approved the amendment by a majority of the outstanding stock
entitled to vote thereon.
THIRD: That said amendment was adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, Amgen Inc. has caused this Certificate of
Amendment to be signed by the undersigned Chief Executive Officer of
the Corporation this 27th day of July, 1989.
AMGEN INC.
By: /s/ Gordon M. Binder
--------------------
Gordon M. Binder
Chief Executive Officer
ATTEST:
/s/ Robert D. Weist
-------------------
Robert D. Weist
Secretary
RESTATED CERTIFICATE OF INCORPORATION
OF
AMGEN INC.
AMGEN, INC., a corporation (the "Corporation") organized and
existing under the General Corporation Law of the State of Delaware
HEREBY CERTIFIES:
FIRST: The original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of
Delaware on October 31, 1986.
SECOND: The Restated Certificate of Incorporation of the
Corporation in the form attached hereto as Exhibit A has been duly
adopted in accordance with the provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware.
THIRD: The Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and is hereby
incorporated by reference.
IN WITNESS WHEREOF, Amgen Inc. Has caused this Certificate to be
signed by its duly authorized officers this 18th day of August, 1988.
AMGEN INC.
By /s/ George B. Rathmann
----------------------
George B. Rathmann
President
ATTEST:
/s/ Robert D. Weist
-------------------
Robert D. Weist
Secretary
AMGEN INC.
RESTATED CERTIFICATE OF INCORPORATION
FIRST: The name of this corporation is Amgen Inc.
SECOND: The address of the registered office of this
corporation in the State of Delaware is 229 South State Street, in
the City of Dover, County of Kent, and the name of its registered
agent at that address is The United States Corporation Company.
THIRD: The purpose of this corporation is to engage in any
lawful act or activity for which a corporation may be organized under
the General Corporation Law of Delaware other than the banking
business, the trust company business or the practice of a profession
permitted to be incorporated by the Delaware Corporations Code.
FOURTH: This corporation is authorized to issue two (2) classes
of stock to be designated, respectively, "Preferred Stock" and
"Common Stock." The total number of shares which this corporation is
authorized to issue is Fifty-Five Million (55,000,000) shares, of
which Five Million (5,000,000) shares shall be Preferred Stock and
Fifty Million (50,000,000) shares shall be Common Stock, all with a
par value of one hundredth cent ($.0001).
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is expressly authorized in the
resolution or resolutions providing for the issue of any wholly
unissued series of Preferred Stock, to fix, state and express the
powers, rights, designations, preferences, qualifications,
limitations and restrictions thereof, including, without limitation:
the rate of dividends upon which and the times at which dividends on
shares of such series shall be payable and the preference, if any,
which such dividends shall have relative to dividends on shares of
any other class or classes or any other series of stock of this
corporation; whether such dividends shall be cumulative or
noncumulative, and if cumulative, the date or dates from which
dividends on shares of such series shall be cumulative; the voting
rights, if any, to be provided for shares of such series; the rights,
if any, which the holders of shares of such series shall have in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of this corporation; the rights, if any,
which the holders of shares of such series shall have to convert such
shares into or exchange such shares for shares of stock of this
corporation and the terms and conditions, including price and rate of
exchange of such conversion or exchange; the redemption (including
sinking fund provisions), if any, for shares of such series; and such
other powers, rights, designations, preferences, qualifications,
limitations and restrictions as the Board of Directors may desire to
so fix. The Board of Directors is also expressly authorized to fix
the number of shares constituting such series and to increase or
decrease the number of shares of any series prior to the issue of
shares of that series and to decrease, but not increase, the number
of shares of any series subsequent to the issue of shares of that
series, but not below the number of shares of such series then
outstanding (in case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume the
status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series).
FIFTH: (a) The number of directors which shall constitute
the whole Board of Directors of this corporation shall be specified
in the bylaws of this corporation, subject to the provisions of this
Article Fifth.
(b) At the 1987 annual meeting, the Board of
Directors shall be divided into three classes: Class I, Class II and
Class III, which shall be as nearly equal in number as possible.
Each director shall serve for a term ending on the date of the third
annual meeting of stockholders following the annual meeting at which
the director was elected; provided, however, that each initial
director in Class I shall hold office until the annual meeting of
stockholders in 1988; each initial director in Class II shall hold
office until the annual meeting of stockholders in 1989; and each
initial director in Class III shall hold office until the annual
meeting of stockholders in 1990. Notwithstanding the foregoing
provisions of this Article, each director shall serve until his
successor is duly elected and qualified or until his death,
resignation or removal.
(c) In the event of any increase or decrease in the
authorized number of directors, the newly created or eliminated
directorships resulting from such increase or decrease shall be
apportioned by the Board of Directors among the three classes of
directors so as to maintain such classes as nearly equal as possible.
No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(d) Newly created directorships resulting from any
increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification,
removal or other cause shall be filled by the affirmative vote of a
majority of the remaining directors then in office (and not by
stockholders), even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been
elected and qualified.
SIXTH: A director of this corporation shall not be personally
liable to this 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 this 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 General Corporation Law of the State
of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit.
SEVENTH: This corporation reserves the right at any time and
from time to time to amend, alter, change, or appeal any provisions
contained herein, and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or inserted, in
the manner now or hereafter prescribed by law, and all rights,
preferences, and privileges of whatsoever nature conferred upon
stockholders, directors, or any other persons whomsoever by or
pursuant to this Certificate of Incorporation in its present form or
as hereafter amended are granted subject to the rights reserved in
this Article.
EIGHTH: All the powers of this corporation, insofar as the same
may be lawfully vested by this Certificate of Incorporation in the
Board of Directors, are hereby conferred upon the Board of Directors,
who shall have full control over the affairs of this corporation.
In furtherance and not in limitation of the powers conferred by
law and by this Certificate of Incorporation, the Board of Directors
is hereby expressly authorized:
1. To make, amend, repeal, or otherwise alter the Bylaws
of this corporation, without any action on the part of the
stockholders; provided, however, that any Bylaws made by the
directors and any and all powers conferred by any of said Bylaws may
be amended, altered, or repealed by the stockholders.
2. To fix, determine, and vary the amount to be reserved
or maintained for any proper purpose, and to fix the times for the
declaration and payment of dividends.
3. To transfer all or any part of the assets of this
corporation by way of mortgage, or in trust or in pledge, to secure
indebtedness of this corporation, without any vote or consent of
stockholders, and to authorize and to cause to be executed
instruments evidencing any and all such transfers.
4. To sell, lease, or exchange any part less than all or
less than substantially all of the property and assets, including
good will and corporate franchises, of this corporation upon such
terms and conditions as the Board of Directors may deem expedient for
the best interests of this corporation, without any authorization,
affirmative vote, or written consent or other action of the
stockholders or any class thereof.
NINTH: (a) Vote Required for Certain Business Combinations.
(1) Higher Vote for Certain Business Combinations.
In addition to any affirmative vote required by law or this
Certificate of Incorporation, and except as otherwise expressly
provided in paragraph (b) of this Article NINTH:
(i) any merger or consolidation of this corporation
or any Subsidiary (as hereinafter defined) with (a) any Interested
Stockholder (as hereinafter defined) or (b) 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
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement, investment,
loan, advance, guarantee, agreement to purchase, agreement to pay,
extension of credit, joint venture participation or other arrangement
(in one transaction or a series of transactions) to, with or for the
benefit of any Interested Stockholder or any Affiliate or Associate
of any Interested Stockholder involving any assets, securities or
commitments of this corporation or any Subsidiary having an aggregate
Fair Market Value equal to or greater than ten percent (10%) of the
corporation's assets as set forth on the corporation's most recent
audited, consolidated financial statements filed with the Securities
and Exchange Commission; or
(iii) the adoption of any plan or proposal for the
liquidation or dissolution of this corporation proposed by or on
behalf of an Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(iv) any reclassification of securities (including
any reverse stock split) or recapitalization of this corporation, or
any merger or consolidation of this 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 this corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(v) the issuance or transfer by this corporation or
any Subsidiary (in a transaction or a series of transactions) of any
securities of this 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 Twenty Million
Dollars ($20,000,000) or more;
shall require the affirmative vote of the holders of a least sixty-
six and two-thirds percent (66-2/3%) 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") not
then held by the Interested Stockholder, voting together as a single
class. 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.
(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 clauses (i)
through (v) of subparagraph (1) of this paragraph (a).
(b) When Higher Vote is Not Required. The provisions of
paragraph (a) 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 all of the
conditions specified in either of the following subparagraphs (b)(1)
or (b)(2) are met:
(1) Approval by Disinterested Directors. The Business
Combination shall have been approved by a majority of the
Disinterested Directors (as hereinafter defined).
(2) 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 of 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 higher of the
following:
(A) (if applicable) 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; and
(B) the Fair Market Value per share of Common
Stock (1) on the Announcement Date or (2) on the date on which the
Interested Stockholder became an Interested Stockholder (such latter
date is referred to in this Article NINTH as the "Determination
Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share
by holders of shares of any other class of outstanding Voting Stock
shall be at least equal to the highest of the following (it being
intended that the requirements of this subparagraph (b)(2)(ii) shall
be required to be met with respect to every class of outstanding
Voting Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting
Stock):
(A) (if applicable) 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;
(B) (if applicable) 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 this
corporation; and
(C) the Fair Market Value per share of such class
of Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher.
(iii) The consideration to be received by holders of
any 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. The price
determined in accordance with subparagraphs (b)(2)(i) and (b)(2)(ii)
shall be subject to appropriate adjustment in the event of any stock
dividend, stock split, combination of shares or similar event.
(iv) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations thereunder (or any subsequent
provisions replacing the Exchange Act or such rules or regulations)
shall be mailed to public stockholders of this corporation at least
thirty (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).
(v) 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
Board entitled to vote thereon (determined in a manner similar to
that set forth in subparagraph (b)(1) above), 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 (I) 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 Board entitled to vote thereon
(determined in a manner similar to that set forth in subparagraph
(b)(1) above), and (II) 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 Board
entitled to vote thereon (determined in a manner similar to that set
forth in subparagraph (b)(1) above); 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.
(vi) 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 this corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(c) Certain Definitions. For the purposes of this Article
NINTH:
(1) A "person" shall mean any individual, firm,
corporation or other entity.
(2) "Interested Stockholder" shall mean any person (other
than this corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly,
of more than twenty percent (20%) of the voting power of the
outstanding Voting Stock; or
(ii) is an Affiliate of this 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 twenty
percent (20%) 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 that were at any time within the two-year
period immediately prior to the date in question beneficially owned
by an 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, as amended.
(3) A person shall be a "beneficial owner" of any Voting
Stock:
(i) that such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly or
indirectly; or
(ii) that 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 an agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise; provided, however, that a person shall not be deemed the
beneficial owner of securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such
persons' Affiliates or Associates until such tendered securities are
accepted for purchase; 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 any security if the agreement,
arrangement or understanding to vote such security (I) arises solely
from a revocable proxy or consent given to such person in response to
a public proxy or consent solicitation made pursuant to, and in
accordance with, the Exchange Act and (II) is not also then
reportable on Schedule 13D under the Exchange Act (or a comparable or
successor report); or
(iii) that 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 (except
to the extent permitted by the proviso of subparagraph (c)(3)(ii)(B)
above) or disposing of any shares of Voting Stock.
(4) For the purposes of determining whether a person is an
Interested Stockholder pursuant to subparagraph (c)(2), the number of
shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of subparagraph (c)(3), but shall
not include any other shares of Voting Stock that may be issuable
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(5) "Affiliate" or "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 January 1,
1988.
(6) "Subsidiary" means any corporation of which a majority
of any class of equity security is owned, directly or indirectly, by
this corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in subparagraph
(c)(2), the term "Subsidiary" shall mean only a corporation of which
a majority of each class of equity security is owned, directly or
indirectly, by this corporation.
(7) "Disinterested Director" means any member of the Board
of Directors of this 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.
(8) "Majority of the Disinterested Directors" means a
majority of the Disinterested Directors, whether or not the number of
such Disinterested Directors then constitutes a quorum of the Board
of Directors of this corporation.
(9) "Fair Market Value" means:
(i) in the case of stock, the average of the closing
sale prices during the ten (10)-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 Exchange Act on which
such stock is listed, or, if the stock is not listed on any such
exchange but is listed as a National Market System stock in the
National Association of Securities Dealers, Inc. Automated Quotation
System, as reported in that National Market System, if such stock is
not listed on any such exchange or reported in such system the
average of the closing bid quotations with respect to a share of such
stock during the ten (10)-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 the Board 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 the Board in good faith.
(10) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be
received" as used in subparagraphs (b)(2)(i) and (ii) 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.
(d) Powers of the Board of Directors. A majority of the
Disinterested Directors of this corporation shall have the power and
duty to determine for the purposes of this Article NINTH on the basis
of information known to them after reasonable inquiry:
(i) whether a person is an Interested Stockholder;
(ii) the number of shares of Voting Stock beneficially
owned by any person;
(iii) whether a person is an Affiliate or Associate of
another; and
(iv) the Fair Market Value of the assets that are the
subject of any Business Combination. A majority of the Disinterested
Directors of this corporation shall have the further power to
interpret all of the terms and provisions of the Article NINTH. Any
such determination made in good faith shall be binding and conclusive
on all parties.
(e) No Effect on Fiduciary Obligations of Interested
Stockholders or Directors.
(1) Nothing contained in this Article Ninth shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
(2) The fact that any Business Combination complies with
the provisions of Section (b) of this Article NINTH shall not be
construed to impose any fiduciary duty, obligation or responsibility
on the Board of Directors, or any member thereof, to approve such
Business Combination or recommend its adoption or approval to the
stockholders of the corporation, and such compliance shall not limit,
prohibit or otherwise restrict in any manner the Board of Directors,
or any members thereof, with respect to evaluations of or actions and
responses taken with respect to such Business Combination.
(f) Amendment, Repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the bylaws of this
corporation (and notwithstanding the fact that a lesser percentage
may be specified by law, this Certificate of Incorporation or the
bylaws of this corporation), the affirmative vote of the holders of
sixty-six and two-thirds percent (66-2/3%) or more of the outstanding
Voting Stock not then held by any Interested Stockholder, voting
together as a single class, shall be required to amend or repeal, or
adopt any provisions inconsistent with this Article NINTH.
TENTH: Any action required or permitted to be taken by the
stockholders of this corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected by
any consent in writing by such holders. At any annual meeting or
special meeting of stockholders of this corporation, only such
business shall be conducted as shall have been brought before such
meeting in the manner provided by the bylaws of this corporation.