RESTATED CERTIFICATE OF INCORPORATION
OF
UNOCAL CORPORATION
(Originally incorporated on March 18, 1983)
FIRST: The name of this corporation is:
UNOCAL CORPORATION
SECOND: The name and address of the registered agent of the corporation in
the State of Delaware is:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, New Castle County, Delaware 19801
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is eight hundred fifty million (850,000,000) shares,
consisting of seven hundred fifty million (750,000,000) shares of Common Stock,
having a par value of $1.00 per share, and one hundred million (100,000,000)
shares of Preferred Stock, having a par value of $0.10 per share. The board of
directors is authorized, subject to any limitations prescribed by law, to
provide for the issuance of the shares of Preferred Stock in one of more series,
and by filing a certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be included in
each such series, and to fix the designation, powers, preferences, and rights of
the shares of each such series and any qualifications, limitations or
restrictions thereof. The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is required pursuant to the
certificate or certificates establishing the series of Preferred Stock.
Pursuant to the authority vested in the board of directors by the preceding
paragraph of this Article FOURTH, the following series of Preferred Stock has
been created, and the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions
thereof are as set forth in the exhibit attached hereto as specified below and
incorporated herein by reference:
Exhibit I Series A Junior Participating Cumulative Preferred Stock
FIFTH: New bylaws may be adopted or the bylaws may be amended or repealed
by a vote of seventy-five percent of the outstanding stock of the corporation
entitled to vote thereon. Bylaws may also be adopted, amended or repealed by the
Board of Directors as provided or permitted by law; however, any bylaw amendment
adopted by the Board of Directors increasing or reducing the authorized number
of directors shall require a resolution adopted by the affirmative vote of not
less than seventy-five percent of the directors.
SIXTH: The number of directors which shall constitute the whole Board of
Directors of the corporation shall be as specified in the bylaws of the
corporation, subject to the provisions of Article FIFTH hereof and this Article
SIXTH. The board is divided into three classes, Class I, Class II and Class III.
Such classes shall be as nearly equal in number of directors as possible. Each
director shall serve for a term ending on the third annual meeting following the
annual meeting at which such director was elected; provided, however, that the
directors first elected to Class I shall serve for a term ending on the annual
meeting next following the end of the calendar year 1983, the directors first
elected to Class II shall serve for a term ending on the second annual meeting
next following the end of the calendar year 1983, and the directors first
elected to Class III shall serve for a term ending on the third annual meeting
next following the
end of the calendar year 1983. The foregoing notwithstanding, each director
shall serve until his successor shall have been duly elected and qualified,
unless he shall resign, become disqualified, disabled or shall otherwise be
removed.
At each annual election, the directors chosen to succeed those whose terms
then expire shall be of the same class as the directors they succeed, unless, by
reason of any intervening changes in the authorized number of directors, the
Board shall designate one or more directorships whose term then expires as
directorships of another class in order more nearly to achieve equality of
number of directors among the classes.
Notwithstanding the rule that the three classes shall be as nearly equal in
number of directors as possible, in the event of any change in the authorized
number of directors each director then continuing to serve as such shall
nevertheless continue as a director of the class of which he is a member until
the expiration of his current term, or his prior death, resignation or removal.
If any newly created directorship may, consistent with the rule that the three
classes shall be as nearly equal in number or directors as possible, be
allocated to one or two or more classes, the Board shall allocate it to that of
the available classes whose term of office is due to expire at the earliest date
following such allocation.
SEVENTH: The affirmative vote of the holders of not less than seventy-five
percent of the outstanding stock of the corporation entitled to vote shall be
required for approval if (1) this corporation merges or consolidates with any
other corporation if such other corporation and its affiliates singly or in the
aggregate are directly or indirectly the beneficial owners of more than ten
percent (10%) of the total voting power of all outstanding shares of the voting
stock of this corporation (such other corporation being herein referred to as a
"Related Corporation"), or if (2) this corporation sells or exchanges all or a
substantial part of its assets to or with such Related Corporation, or if (3)
this corporation issues or delivers any stock or other securities of its issue
in exchange or payment for any properties or assets of such Related Corporation
or securities issued by such Related Corporation, or in a merger of any
affiliate of this corporation with or into such Related Corporation or any of
its affiliates; provided, however, that the foregoing shall not apply to any
such merger, consolidation, sale or exchange, or issuance or delivery of stock
or other securities which was (i) approved by resolution of the Board of
Directors adopted by the affirmative vote of not less than seventy-five percent
of the directors prior to the acquisition of the beneficial ownership of more
than ten percent (10%) of the total voting power of all outstanding shares of
the voting stock of the corporation by such Related Corporation and its
affiliates, nor shall it apply to any such transaction solely between this
corporation and another corporation fifty percent (50%) or more of the voting
stock of which is owned by this corporation. For the purposes hereof, an
"affiliate" is any person (including a corporation, partnership, trust, estate
or individual) who directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the person
specified. "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise;
and in computing the percentage of outstanding voting stock beneficially owned
by any person the shares outstanding and the shares owned shall be determined as
of the record date fixed to determine the stockholders entitled to vote or
express consent with respect to such proposal. The stockholder vote, if any,
required for mergers, consolidations, sales or exchanges of assets or issuances
of stock or other securities not expressly provided for in this Article, shall
be such as may be required by applicable law. A "substantial part" of the
corporation's assets shall mean assets comprising more than ten percent of the
book value of fair market value of the total assets of the corporation and its
subsidiaries taken as a whole.
EIGHTH: No action shall be taken by the stockholders except at an annual or
special meeting of stockholders. No action shall be taken by stockholders by
written consent.
NINTH: Special meetings of the stockholders of the corporation for any
purpose or purposes may be called at any time by the Board of Directors, or by a
majority of the members of the Board of Directors, or by a committee of the
Board of Directors which has been duly designated by the Board of Directors and
whose powers and authority, as provided in a resolution of the Board of
Directors or in the by-laws of the corporation, include the power to call such
meetings, but such special meetings may not be called by any other person or
persons; provided, however, that, if and to the extent that any special meeting
of stockholders may be called by any other person or persons specified in any
provisions of this Certificate of Incorporation or any amendment thereto, then
such special meeting may also be called by the person or persons, in the manner,
at the times and for the purposes so specified.
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TENTH: The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation. Notwithstanding the foregoing,
the provisions set forth in Articles FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH and
this Article TENTH may not be repealed or amended in anyrespect unless such
repeal or amendment is approved by the affirmative vote of the holders of not
less than seventy-five percent of the total voting power of all outstanding
shares of voting stock of this corporation.
ELEVENTH: A director of the corporation shall not be personally liable to
the corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the shareholders of this article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the shareholders
of the corporation shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or modification.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which only
restates and integrates and does not further amend the provisions of the
corporation's Certificate of Incorporation as heretofore amended or
supplemented, there being no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation except as permitted by
Section 245 of the General Corporation Law of Delaware, having been duly adopted
by the corporation's Board of Directors in accordance with Section 245 of the
General Corporation Law, has been executed by its duly authorized officer this
1st day of October, 1999.
UNOCAL CORPORATION
By: /s/ Dennis P.R. Codon
-----------------------
Name: Dennis P.R. Codon
Title: Vice President
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EXHIBIT I
SERIES A JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK
Section 1. Designation and Amount. The shares of such series shall be
designated as Series A Junior Participating Cumulative Preferred Stock, par
value $.10 per share (the "Series A Preferred Stock"), and the number of shares
constituting such series shall be 3,000,000.
Section 2. Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock, in preference to the
holders of shares of Common Stock, $1.00 per share, of the Corporation (the
"Common Stock") and of any other junior stock of the Corporation that may be
outstanding, 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 tenth day of January, April, July and October 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 (i) $0.25
per share ($1.00 per annum), or (ii) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock, or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event that the
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then and
in each such event, the amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under clause (ii) 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, however, 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 $0.25 per share ($1.00
per annum) 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 of Series A 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 Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which cases such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
cumulate but 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.
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Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(a) Each share of Series A Preferred Stock shall entitle the holder thereof
to 100 votes (and each one one-hundredth of a share of Series A Preferred Stock
shall entitle the holder thereof to one vote) on all matters submitted toa vote
of the stockholders of the Corporation. In the event that the Corporation shall
at any time declare or pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or 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 and in each such event, 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 in the Certificate of Incorporation of the
Corporation or herein or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock shall vote together as one class
on all matters submitted to a vote of stockholders of the Corporation.
(c) In addition, the holders of shares of Series A Preferred Stock shall
have the following special voting rights:
In the event that at any time dividends on Series A Preferred Stock,
whenever accrued and whether or not consecutive, shall not have been paid
or declared and a sum sufficient for the payment thereof set aside, in an
amount equivalent to six quarterly dividends on all shares of Series A
Preferred Stock at the time outstanding, then and in each such event, the
holders of shares of Series A Preferred Stock and each other series of
preferred stock now or hereafter issued that shall be accorded such class
voting right by the Board of Directors and that shall have the right to
elect three directors as the result of a prior or subsequent default in
payment of dividends on such series (each such other series being
hereinafter called "Other Series of Preferred Stock"), voting separately as
a class without regard to series, shall be entitled to elect three
directors at the next annual meeting of stockholders of the Corporation, in
addition to the directors to be elected by the holders of all shares of the
Corporation entitled to vote for the election of directors, and the holders
of all shares (including the Series A Preferred Stock) otherwise entitled
to vote for directors, voting separately as a class, shall be entitled to
elect the remaining members of the Board of Directors, provided that the
Series A Preferred Stock and each Other Series of Preferred Stock, voting
as a class, shall not have the right to elect more than three directors.
Such special voting right of the holders of shares of Series A Preferred
Stock may be exercised until all dividends in default on the Series A
Preferred Stock shall have been paid in full or declared and funds
sufficient therefor set aside, and when so paid or provided for, such
special voting right of the holders of shares of Series A Preferred Stock
shall cease, but subject always to the same provisions for the vesting of
such special voting rights in the event of any such future dividend default
or defaults. At any time after such special voting rights shall have so
vested in the holders of shares of Series A Preferred Stock, the Secretary
of the Corporation may, and upon the written request of the holders of
record of 10% or more in number of the shares of Series A Preferred Stock
and each Other Series of Preferred Stock then outstanding addressed to the
Secretary at the principal executive office of the Corporation shall, call
a special meeting of the holders of shares of Preferred Stock so entitled
to vote, for the election of the directors to be elected by them as herein
provided, to be held within 60 days after such call and at the place and
upon the notice provided by law and in the Bylaws for the holding of
meetings of stockholders; provided, however, that the Secretary shall not
be required to call such special meeting in the case of any such request
received less than 90 days before the date fixed for any annual meeting of
stockholders, and if in such case such special meeting is not called or
held, the holders of shares of Preferred Stock so entitled to vote shall be
entitled to exercise the special voting rights provided in this paragraph
at such annual meeting. If any such special meeting required to be called
as above provided shall not be called by the Secretary within 30 days after
receipt of any such request, then the holders of record of 10% or more in
number of the shares of Series A Preferred Stock and each Other Series of
Preferred Stock then outstanding may designate in writing one of their
number to call such meeting, and the person so designated may, at the
expense of the Corporation, call such meeting to be held at the place and
upon the notice given by such person, and for that purpose shall have
access to the
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stock books of the Corporation. No such special meeting and no adjournment
thereof shall be held on a date later than 60 days before the annual
meeting of stockholders. If, at any meeting so called or at any annual
meeting held while the holders of shares of Series A Preferred Stock have
the special voting rights provided for in this paragraph, the holders of
not less than 40% of the shares of Series A Preferred Stock and each Other
Series of Preferred Stock then outstanding are present in person or by
proxy, which percentage shall be sufficient to constitute a quorum for the
election of additional directors as herein provided, the then authorized
number of directors of the Corporation shall be increased by three, as of
thetime of such special meeting or the time of the first such annual
meeting held while such holders have special voting rights and such quorum
is present, and the holders of shares of Series A Preferred Stock and each
Other Series of Preferred Stock, voting as a class, shall be entitled to
elect the additional directors so provided for. If the directors of the
Corporation are then divided into classes under provisions of the
Certificate of Incorporation of the Corporation or the Bylaws, the three
additional directors shall be members of those respective classes of
directors in which a vacancy is created as a result of such increase in the
authorized number of directors. If the foregoing expansion of the size of
the Board of Directors shall not be valid under applicable law, then the
holders of shares of Series A Preferred Stock and of each Other Series of
Preferred Stock, voting as a class, shall be entitled, at the meeting of
stockholders at which they would otherwise have voted, to elect directors
to fill any then existing vacancies on the Board of Directors, and shall
additionally be entitled, at such meeting and each subsequent meeting of
stockholders at which directors are elected, to elect all of the directors
then being elected until by such class vote three members of the Board of
Directors have been so elected. Upon the election at such meeting by the
holders of shares of Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, of the directors they are entitled so
to elect, the persons so elected, together with such persons as may be
directors or as may have been elected as directors by the holders of all
shares (including Series A Preferred Stock) otherwise entitled to vote for
directors, shall constitute the duly elected directors of the Corporation.
The additional directors so elected by holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock, voting as a
class, shall serve until the next annual meeting or until their respective
successors shall be elected and qualified, or if any such director is a
member of a class of directors under provisions dividing the directors into
classes, each such director shall serve until the annual meeting at which
the term of office of such director's class shall expire or until such
director's successor shall be elected and shall qualify, and at each
subsequent meeting of stockholders at which the directorship of any
director elected by the vote of holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock under the special voting
rights set forth in this paragraph is up for election, said special class
voting rights shall apply in the reelection of such director or in the
election of such director's successor; provided, however, that whenever the
holders of shares of Series A Preferred Stock and each Other Series of
Preferred Stock shall be divested of the special rights to elect three
directors as above provided, the terms of office of all persons elected as
directors by the holders of shares of Series A Preferred Stock and each
Other Series of Preferred Stock, voting as a class, or elected to fill any
vacancies resulting from the death, resignation, or removal of directors so
elected by the holders of shares of Series A Preferred Stock and each Other
Series of Preferred Stock, shall forthwith terminate and, if applicable,
the number of directors shall be reduced accordingly. If, at any time after
a special meeting of stockholders or an annual meeting of stockholders at
which the holders of shares of Series A Preferred Stock and each Other
Series of Preferred Stock, voting as a class, have elected directors as
provided above, and while the holders of shares of Series A Preferred Stock
and each Other Series of Preferred Stock shall be entitled so to elect
three directors, the number of directors who have been elected by the
holders of shares of Series A Preferred Stock and each Other Series of
Preferred Stock (or who by reason of one or more resignations, deaths or
removals have succeeded any directors so elected) shall by reason of
resignation, death or removal be less than three but at least one, the
vacancy in the directors so elected by the holders of shares of the Series
A Preferred Stock and each Other Series of Preferred Stock may be filled by
the remaining director elected by such holders, and in the event that such
election shall not occur within 30 days after such vacancy arises, or in
the event that there shall not be incumbent at least one director so
elected by such holders, the Secretary of the Corporation may, and upon the
written request of the holders of record of 10% or more in number of the
shares of Series A Preferred Stock and each Other Series of Preferred Stock
then outstanding addressed to the Secretary at the principal office of the
Corporation shall, call a special meeting of the holders of shares of
Series A Preferred Stock and each Other Series of Preferred Stock so
entitled to vote, for an election to fill such vacancy or vacancies, to be
held within 60 days after such call and at the place and upon the notice
provided by law and in the Bylaws for the holding of meetings of
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stockholders; provided, however, that the Secretary shall not be required
to call such special meeting in the case of any such request received less
than 90 days before the date fixed for any annual meeting of stockholders,
and if in such case such special meeting is not called, the holders of
shares of Preferred Stock so entitled to vote shall be entitled to fill
such vacancy or vacancies at such annual meeting. If any such special
meeting required to be called as above provided shall not be called by the
Secretary within 30 days after receipt of any such request, then the
holders of record of 10% or more in number of the shares of Series A
Preferred Stock and each Other Series of Preferred Stock then outstanding
may designate in writing one of their number to call such meeting, and the
person so designated may, at the expense of the Corporation, call such
meeting to be held at the place and upon the notice above provided, and for
that purpose shall have access to the stock books of the Corporation; no
such special meeting and no adjournment thereof shall be held on a date
later than 60 days before the annual meeting of stockholders.
(d) Nothing herein shall prevent the directors or stockholders from taking
any action to increase the number of authorized shares of Series A Preferred
Stock, or increasing the number of authorized shares of Preferred Stock of the
same class as the Series A Preferred Stock or the number of authorized shares of
Common Stock, or changing the par value of the Common Stock or Preferred Stock,
or issuing options, warrants or rights to any class of stock of the Corporation
as authorized by the Certificate of Incorporation of the Corporation, as it may
hereafter be amended.
(e) Except as set forth herein, holders of shares 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 as set forth in the
Certificate of Incorporation of the Corporation or herein or by law) for taking
any corporate action.
Section 4. Certain Restrictions.
(a) Whenever any dividends or other distributions payable on the Series A
Preferred Stock as provided in Section 2 hereof 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 and shall cause its subsidiaries not to,
directly or indirectly:
(i) declare or pay dividends on, or make any other distributions with
respect to, 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 on, or make any other distributions with
respect to, 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 shares of 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) with 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) 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.
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(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 cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
preferred stock, without designation as to series, and may be reissued as part
of any series of preferred stock created by resolution or resolutions of the
Board of Directors (including Series A Preferred Stock), subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made to:
(a) 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 the greater of (i) $100.00 per share ($1.00 per one one-hundredth
of a share), plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, or
(ii) an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of shares of Common Stock; or
(b) 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 other 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 that the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then and in each such event, 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 (a) 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.
Section 7. Consolidation, Merger, etc. In the event that 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, or otherwise changed, then and in
each such event, the shares of Series A Preferred Stock shall at the same time
be similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event that the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then and in each such event, 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. Notwithstanding the foregoing, the Corporation may acquire shares
of Series A Preferred Stock in any other manner permitted by law, the
Certificate of Incorporation of the Corporation or herein.
Section 9. Rank. Unless otherwise provided in the Certificate of
Incorporation of the Corporation or a Certificate of Designations relating to a
subsequent series of preferred stock of the Corporation, the Series A Preferred
Stock shall rank junior to all other series of the Corporation's preferred stock
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up, and senior to the Common Stock of the Corporation.
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Section 10. Amendment. The Certificate of Incorporation of the Corporation
shall not be amended in any manner that would materially and adversely alter or
change the powers, preferences or special rights of the Series A Preferred Stock
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
series.
Section 11. Fractional Shares. Series A Preferred Stock maybe issued in
fractions of a share (in one one-hundredths (1/100) of a share and integral
multiples thereof) that shall entitle the holder thereof, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of holders
of shares of Series A Preferred Stock.
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