12061495
[THIS DOCUMENT CONSTITUTES AN INTEGRATED COPY OF THE REGISTRANT'S
CERTIFICATE OF INCORPORATION, AS AMENDED THROUGH THE DATE OF THIS
FILING. THE DOCUMENTS SO INTEGRATED ARE ON FILE WITH THE DELAWARE
SECRETARY OF STATE.]
CERTIFICATE OF INCORPORATION
OF
AMERICAN PRESIDENT COMPANIES, LTD.
First: The name of this Corporation is:
American President Companies, Ltd.
Second: The address of its registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, City of Dover 19901,
County of Kent. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
Third: The nature of the business of this Corporation and the
objects or purposes proposed to be transacted, promoted or conducted by
it are to engage in and transact a shipping and transportation business
in any and all of its branches throughout the world; to buy or otherwise
acquire and sell, dispose of, and in any manner deal with and in real
property, improved or unimproved, throughout the world; and to engage in
any other lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware. The foregoing shall be
construed both as objects and powers, and the foregoing enumeration of
specific powers shall not be held to limit or restrict in any manner the
powers of this Corporation.
Fourth:
A. Capital Stock. The total number of shares of stock which
this Corporation shall have authority to issue is sixty-five million
(65,000,000). Of said shares sixty million (60,000,000) shall be Common
Stock, with a par value of One Cent ($.01) each, and five million
(5,000,000) shall be Preferred Stock, with a par value of One Cent
($.01) each.
B. Authorization of Board of Directors To Establish Series
of Preferred Stock and Fix Consideration Therefor. The Board of
Directors is hereby expressly authorized, within the limitations and
restrictions stated herein from time to time, by resolution:
(i) to divide the Preferred Stock into series;
(ii) to fix the consideration for which such Preferred
Stock shall be issued;
(iii) to determine the voting powers of each such
series;
(iv) to determine and fix the number of shares which
will constitute any such series and the distinctive designation
of each series;
(v) to make any such series of stock subject to
redemption at such time or times and at such price or prices as
shall be stated and expressed in such resolution;
(vi) to determine whether or not the shares of such
series shall be subject to the operation of a retirement or
sinking fund and, if so subject, the extent to and the manner in
which it shall be applied to the purchase or redemption of the
shares of such series and the terms and provisions relative to
the operation thereof;
(vii) to fix the rights of the holders of stock of each
series of Preferred Stock to receive dividends at such rates, on
such conditions and at such times as shall be stated and
expressed in the resolution and whether payable in preference to,
or in relation to, the dividends payable on any other class or
classes of stock or other series of the same class and whether
cumulative or noncumulative as shall be so stated and expressed.
(viii) to fix the rights of the holders of the stock of
each series upon the dissolution of, or upon any distribution of
the assets of, this Corporation;
(ix) to make any series of Preferred Stock convertible
or automatically converted into or exchangeable for shares of any
other class or classes or of any other series of the same or any
other class or classes of the stock of this Corporation at such
price or prices or at such rates of exchange and with such
adjustments as shall be stated and expressed in such resolution;
and
(x) to determine whether or not the shares of any series
shall be subject or entitled to any other preferences, and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions which shall be stated
and expressed in such resolution and which shall not be
inconsistent with the terms and provisions of this Article
Fourth.
1. Series A Participating Preferred Stock.
(a) Designation and Amount. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" and the
number of shares constituting such series shall be 500,000.
(b) Dividends and Distributions.
(i) Subject to the prior and superior rights of the holders
of any shares of any series of Preferred Stock ranking prior and
superior to the shares of Series A Junior Participating Preferred Stock
with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash (or, as provided below,
in kind) on the fifteenth 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 Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (1) $10.00 or (2)
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, par value
$.01 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Junior Participating
Preferred Stock. In the event the Corporation shall at any time after
April 7, 1986 (a) declare any dividend on Common Stock payable in shares
of Common Stock, (b) subdivide the outstanding Common Stock into a
greater number of shares, or (c) combine the outstanding Common Stock
into a smaller number of shares, by reclassification or otherwise,
whether or not any Series A Preferred Stock is then outstanding, then in
each such case the amounts to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior to such
event under clause (ii) of the preceding sentence shall be adjusted by
multiplying each 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, provided
that in the case of a stock dividend in which the aggregate number of
shares issuable pursuant thereto is less than 15% of the shares of
Common Stock outstanding on the record date for determining the
stockholders entitled to such dividend then, in its sole discretion, the
Corporation may determine that no such adjustment shall be required.
(ii) The Corporation shall declare a dividend or distribution on
the Series A Junior Participating Preferred Stock as provided in
paragraph (i) above immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per
share on the Series A Junior Participating Preferred Stock shall
nevertheless be declared and made payable on such subsequent Quarterly
Dividend Payment Date.
(iii) Dividends shall begin to be payable and to accrue on
outstanding shares of Series A Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of
such shares of Series A Junior Participating Preferred Stock, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock 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 Junior Participating Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no
more than 30 days prior to the date fixed for the payment thereof.
(c) Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock shall
entitle the holder thereof to 100 votes on all matters submitted to a
vote of the stockholders of the Corporation. In the event the
Corporation shall at any time after April 7, 1986 (1) declare any
dividend on Common Stock payable in shares of Common Stock, (2)
subdivide the outstanding Common Stock into a greater number of shares,
or (3) combine the outstanding Common Stock into a smaller number of
shares, by reclassification or otherwise, whether or not any Series A
Preferred Stock is then outstanding, then in each such case the number
of votes per share to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock outstanding immediately prior to such event.
(ii) Except as otherwise provided herein or by law, the holders
of shares of Series A Junior Participating Preferred Stock and the
holders of shares of Common Stock shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.
(iii)(a) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to
six (6) quarterly dividends thereon, the occurrence of such contingency
shall mark the beginning of a period (herein called a "Default Period")
which shall extend until such time when all accrued and unpaid dividends
for all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared and paid or
set apart for payment. During each Default Period, the holders of
Preferred Stock, voting as a class, irrespective of series, shall have
the right to elect two (2) Directors.
(b) During any Default Period, such voting right of the
holders of Series A Junior Participating Preferred Stock may be
exercised initially at a special meeting called pursuant to subparagraph
(c) of this Section 1(c)(iii) or at any annual meeting of stockholders,
and thereafter at annual meetings of stockholders, provided that neither
such voting right nor the right of the holders of any other series of
Preferred Stock, if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the holders of ten percent
(10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of
Preferred Stock of such voting right. At any meeting at which the
holders of Preferred Stock shall exercise such voting right initially
during an existing Default Period, they shall have the right, voting as
a class, to elect Directors to fill such vacancies, if any, in the Board
of Directors as may then exist up to two (2) Directors or, if such right
is exercised at an annual meeting, to elect two (2) Directors. If the
number which may be so elected at any special meeting does not amount to
the required number, the holders of the Preferred Stock shall have the
right to make such increase in the number of Directors as shall be
necessary to permit the election by them of the required number. After
the holders of the Preferred Stock shall have exercised their right to
elect Directors in any Default Period and during the continuance of such
period, the number of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or
pari passu with the Series A Junior Participating Preferred Stock.
(c) Unless the holders of Preferred Stock shall, during an
existing Default Period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of a special meeting of the holders
of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice President or the Secretary of the Corporation. Notice
of such meeting and of any annual meeting at which holders of Preferred
Stock are entitled to vote pursuant to this paragraph (c) shall be given
to each holder of record of Preferred Stock by mailing a copy of such
notice to him at his last address as the same appears on the books of
the Corporation. Such meeting shall be called for a time not earlier
than 20 days and not later than 60 days after such order or request or,
in default of the calling of such meeting within 60 days after such
order or request, such meeting may be called on similar notice by any
stockholder or stockholders owning in the aggregate not less than 108 of
the total number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this paragraph (c), no such special
meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the
stockholders.
(d) In any Default Period the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of
Preferred Stock shall have exercised their right to elect two (2)
Directors voting as a class, after the exercise of which right (x) the
Directors so elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such holders or
until the expiration of the Default Period, and (y) any vacancy in the
Board of Directors may (except as provided in paragraph (b) of this
Section 1(c)(iii) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which
elected the Director whose office shall have become vacant. References
in this paragraph (iii) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
(e) Immediately upon the expiration of a Default Period, (x) the
right of the holders of Preferred Stock as a class to elect Directors
shall cease, (y) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in the Certificate
of Incorporation or By-laws irrespective of any increase made pursuant
to the provisions of paragraph (b) of this Section 1(c)(iii) (such
number being subject, however, to change thereafter in any manner
provided by law or in the Certificate of Incorporation or By-laws). Any
vacancies in the Board of Directors effected by the provisions of
clauses (y) and (z) in the preceding sentence may be filled by a
majority of the remaining Directors.
(iv) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
(d) Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred
Stock as provided in Section 1(b) hereof are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Junior Participating Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(1) declare or pay dividends (except a dividend payable in
Common Stock) on, make any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock, except
for purchases pursuant to the terms of the Corporation's employee
benefit plans or agreements entered into thereunder;
(2) declare or pay dividends on 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 Junior
Participating Preferred Stock, except dividends paid ratably on the
Series A Junior Participating Preferred Stock and all such parity stock
on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(3) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating Preferred Stock; or
(4) purchase or otherwise acquire for consideration any shares
of Series A Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(ii) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (i) of this Sectio 1(d), purchase or otherwise acquire such
shares at such time and in such manner.
(e) Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock to
be created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth herein.
(f) Liquidation, Dissolution or Winding Up.
(i) Upon any voluntary liquidation, dissolution or winding up
of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of
shares of Series A Junior Participating Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation Preference,
no additional distributions shall be made to the holders of shares of
Series A Junior Participating Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per
share (the "Common Adjustment") equal to the quotient obtained by
dividing (1) the Series A Liquidation Preference by (2) 100, subject to
the provisions for adjustment as hereinafter set forth (such number in
clause (ii), the "Adjustment Number"). Following the payment of the
full amount of the Series A Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed, on a per share basis, in the ratio
of 100 to 1 with respect to such Preferred Stock and Common Stock,
respectively.
(ii) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation
Preference and the liquidation preferences of all other series of
preferred stock, if any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion
to their respective liquidation preferences.
(iii) In the event the Corporation shall at any time after April
7, 1986 (1) declare any dividend on Common Stock payable in shares of
Common Stock, (2) subdivide the outstanding Common Stock into a greater
number of shares, or (3) combine the outstanding Common Stock into a
smaller number of shares, by reclassification or otherwise, whether or
not any Series A Preferred Stock is then outstanding, then in each such
case the Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a fraction
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock outstanding immediately prior to
such event.
(g) Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior Participating
Preferred Stock shall at the same time be similarly exchanged or changed
in an amount per share (subject to the provision for adjustment
hereinafter set
forth) equal to 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 the Corporation shall at any time after April
7, 1986 (1) declare any dividend on Common Stock payable in shares of
Common Stock, (2) subdivide the outstanding Common Stock into a greater
number of shares, or (3) combine the outstanding Common Stock into a
smaller number of shares, by reclassification or otherwise, whether or
not any Series A Preferred Stock is then outstanding, then in each such
case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Junior Participating Preferred
Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock outstanding immediately prior to such event.
(h) No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
(i) Ranking. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's
Preferred Stock as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide otherwise.
(j) Amendment. The Certificate of Incorporation and the By-laws
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 Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least
66-2/3% of the outstanding shares of Series A Junior Participating
Preferred Stock, voting separately as a class.
(k) Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions
and to have the benefit of all other rights of holders of Series A
Junior Participating Preferred Stock.
2. 9% Series D Convertible Preferred Stock, par value $.01
per share.
(a) Designation. The designation of the series of the
preferred stock to which this Section 2 relates shall be "9% Series D
Convertible Preferred Stock, par value $.01 per share" (the "Series D").
The number of shares of Series D shall be 2,000,000. The Series D shall
have a stated value of $50 per share (the "Stated Value").
(b) Dividends. Holders of shares of Series D shall be
entitled to receive, when and as declared by the Board of Directors out
of funds legally available therefor, cash dividends from the date of
issue thereof at the annual rate per share of 9% of the Stated Value of
such shares, payable quarterly, in arrears, on March 15, June 15,
September
15 and December 15 (a "Dividend Payment Date") in each year, commencing
on the first Dividend Payment Date which is at least 15 days after the
date of original issue of any Series D Preferred Stock. Such dividends
shall be cumulative with respect to each share from the date of original
issuance, whether or not earned or declared. In addition, holders of
record of shares of Series D shall be entitled to receive dividends paid
in accordance with the terms of the Amended and Restated Rights
Agreement, dated as of October 22, 1991, as it may be amended from time
to time, between the Corporation and The First National Bank of Boston,
as Rights Agent, or any successor rights agreement entered into by the
Corporation. The holders of shares of Series D will not be entitled to
any dividends other than the dividends described in this clause (b).
Accrued but unpaid dividends shall not bear interest.
If at any time the Corporation has failed to pay accrued
dividends on any shares of the Series D and the 9% Series C Cumulative
Convertible Preferred Stock (the "Series C"), or any other class of
preferred stock ranking on a parity with the Series D as to dividends
and upon liquidation at the time such dividends are payable (the Series
C and any such parity class being the "Parity Stock"), the Corporation
will not (a) declare or pay any dividend on the common stock, par value
$.01 per share (the "Common Stock"), of the Corporation or on the Series
A Junior Participating Preferred Stock (the "Series A") or on any other
class of stock ranking junior to the Series D as to dividends or upon
liquidation (the Common Stock, the Series A and any such junior class
being the "Junior Stock") or make any payment on account of, or set
apart money for, a sinking or other analogous fund for, the purchase,
redemption or other retirement of, any Junior Stock or make any
distribution in respect thereof, either directly or indirectly and
whether in cash or property or in obligations or shares of the
Corporation (other than in shares of stock ranking junior to the Series
D as to dividends and upon liquidation), (b) purchase any shares of the
Series D or Parity Stock (except for a consideration payable in Junior
Stock) or redeem fewer than all of the Series D and Parity Stock then
outstanding, or (c) permit any corporation or other entity directly or
indirectly controlled by the Corporation to purchase any shares of
Junior Stock, Series D or Parity Stock, unless all accrued and payable
but unpaid dividends on Series D and any Parity Stock have been or
contemporaneously are declared and paid in full or declared and a sum
sufficient for payment of such dividends has been set aside. Unless and
until all dividends accrued and payable but unpaid on the Series D and
any Parity Stock at the time outstanding have been paid in full, all
dividends declared by the Corporation upon the Series D or such Parity
Stock shall be declared pro rata with respect to all Series D and Parity
Stock then outstanding, so that the amounts of any dividends declared on
the Series D and such Parity Stock shall in all cases bear to each other
the same ratio that, at the time of such declaration, all accrued and
payable but unpaid dividends on the Series D and such other Parity
Stock, respectively, bear to each other.
(c) Redemption for Cash. Shares of Series D shall be
redeemable, out of funds legally available therefor, at the option of
the Corporation at any time on or after July 31, 1995 at the Stated
Value per share, plus any accrued and unpaid dividends to the redemption
date.
The Corporation may not purchase or redeem less than all the Series D
and Parity Stock then outstanding if, as of such time, the Corporation
has failed to pay all accrued and unpaid dividends thereon.
On January 31, 2001, the Corporation shall redeem, out of funds
legally available therefor, all outstanding shares of Series D by paying
therefor the Stated Value per share, plus any accrued and unpaid
dividends to the redemption date.
The Corporation will mail notice of redemption to each holder of
record of Series D to be redeemed no less than 30 nor more than 90 days
prior to the redemption date. Such notice shall specify the time and
place of such redemption and the number of shares to be redeemed and
shall be given by first-class mail, postage prepaid, to the holders of
record of the shares of Series D to be redeemed at their respective
addresses as the same shall appear on the books of the Corporation, but
neither failure to mail such notice, nor any defect therein or in the
mailing thereof, to any particular holder shall affect the sufficiency
of the notice or the validity of the proceedings for redemption with
respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given
whether or not the holder receives the notice.
If fewer than all of the shares of Series D are to be redeemed,
the shares to be redeemed shall be selected by lot or pro rata or in
some other equitable manner determined by the Corporation.
If a notice of redemption has been given pursuant to this Clause
(c) and if, on or before the date fixed for redemption, the funds
necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds, in trust for the
pro rata benefit of the holders of the shares so called for redemption,
then on and after the redemption date, notwithstanding that any
certificates for such shares have not been surrendered for cancellation,
dividends shall cease to accrue on the shares of Series D to be
redeemed, such shares shall no longer be deemed to be outstanding and
all rights of the holders of such shares as stockholders of the
Corporation shall cease except the right to receive the moneys payable
upon such redemption, without interest, upon surrender of the
certificates evidencing such shares. Subject to applicable escheat
laws, any moneys so set aside by the Corporation and unclaimed at the
end of two years from the redemption date shall revert to the general
funds of the Corporation after which reversion the holders of such
shares so called for redemption shall look only to the general funds of
the Corporation for the payment of the redemption price. Any interest
accrued on funds so set aside shall be paid to the Corporation from time
to time.
(d) Liquidation.
(i) In case of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of any shares
of Series D are entitled to receive the Stated Value per share, plus an
amount equal to the dividends accrued and unpaid thereon to the payment
date, before any distribution is made to the holders of Junior Stock.
(ii) The holders of shares of Series D and all Parity Stock
shall share ratably, in accordance with the respective amounts payable
thereon, in any such distribution which is not sufficient to pay in full
the aggregate of the amounts payable thereon. After payment in full of
the liquidation price to which the holders of shares of Series D are
entitled the holders of shares of Series D will not be entitled to any
further participation in any distribution of assets by the Corporation.
(iii) Neither a consolidation or merger of the Corporation with
or into any other corporation, nor a merger of any other corporation
with or into the Corporation, nor a sale or transfer of all or
substantially all of the Corporation's assets for cash or securities
shall be considered a liquidation, dissolution or winding up of the
Corporation within the meaning of this Clause (d).
(e) Conversion.
(i) Subject to the provisions for adjustment hereinafter set
forth, each share of Series D shall be convertible at the option of the
holder thereof, in the manner hereinafter set forth, into fully paid and
nonassessable shares of Common Stock at the conversion price, determined
as hereinafter provided, in effect on the date of conversion, provided
that if any of the Series D is called for redemption for cash, the
conversion rights pertaining thereto will terminate at the close of
business on the business day preceding the redemption date. Each share
of Series D shall be convertible into the number of shares of Common
Stock that results from dividing the Stated Value by the price at which
shares of Common Stock shall be delivered at the time of conversion
(such denominator is hereinafter referred to as the "Conversion Price").
The Conversion Price shall initially be that price which, when applying
the formula set forth in the preceding sentence, results in each share
of Series D being convertible into the same number of shares of Common
Stock into which each share of Series C would have been convertible on
the date the first share of Series C is exchanged for Series D (the
"First Exchange Date"). The Conversion Price shall be adjusted in
certain instances as hereinafter provided in this Clause (e).
Any holder of shares of Series D desiring to convert the same
into shares of Common Stock shall surrender the certificate or
certificates for the shares of Series D being converted, duly endorsed
or assigned to the Corporation or in blank, at the principal office of
the Corporation or at a bank or trust company appointed by the
Corporation for that purpose, accompanied by a written notice of
conversion specifying the number (in whole shares) of shares of Series D
to be converted and the name or names in which such holder wishes the
certificate or
certificates for shares of Common Stock to be issued; in case such
notice shall specify a name or names other than that of such holder,
such notice shall be accompanied by payment of all transfer taxes
payable upon the issue of shares of Common Stock in such name or names.
In case less than all of the shares of Series D represented by a
certificate are to be converted by a holder, upon such conversion the
Corporation shall issue and deliver, or cause to be issued and
delivered, to the holder a certificate or certificates for the shares of
Series D not so converted. The holders of shares of Series D at the
close of business on a dividend payment record date shall be entitled to
receive the dividend payable on such shares (except shares called for
redemption on a redemption date between such record date and the
Dividend Payment Date) on the corresponding Dividend Payment Date
notwithstanding the conversion thereof or the Corporation's default on
payment of the dividend due on such Dividend Payment Date. However,
shares of Series D surrendered for conversion during the period from the
close of business on any dividend payment record date for the Series D
to the opening of business on the corresponding Dividend Payment Date
(except shares called for redemption on a redemption date during such
period) must be accompanied by payment of an amount equal to the
dividend payable on such shares on such Dividend Payment Date. A holder
of shares of Series D on a dividend payment record date who (or whose
transferee) converts shares of Series D on a Dividend Payment Date will
receive the dividend payable on such shares by the Corporation on such
date, and the converting holder need not include payment in the amount
of such dividend upon surrender of shares of Series D for conversion.
Except as provided above, no payment or adjustment will be made on
account of accrued or unpaid dividends upon the conversion of shares of
Series D.
(ii) The Conversion Price shall be adjusted from time to time as
follows:
(1) If, after the First Exchange Date, the Corporation
shall pay or make a dividend or other distribution on any class
of capital stock of the Corporation in shares of Common Stock,
then the Conversion Price in effect at the opening of business on
the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on
the date fixed for such determination and the denominator shall
be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of
business on the day following the date fixed for such
determination.
(2) If, after the First Exchange Date, the Corporation
shall issue rights or warrants to all holders of its shares of
Common Stock entitling them (for a period expiring within 45 days
after the date fixed for the determination of stockholders
entitled to receive such rights or warrants) to subscribe for or
purchase Common Stock at a price per share less than the current
market price per share (determined as provided in subclause (iii)
of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, then
the Conversion Price in effect at the opening of business on the
day following the date fixed for such determination shall be
reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would
purchase at such current market price and the denominator shall
be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the
number of shares of Common Stock so offered for subscription or
purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for
such determination.
(3) If, after the First Exchange Date, the outstanding
shares of Common Stock shall be subdivided into a greater number
of shares, then the Conversion Price in effect at the opening of
business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and,
conversely, in case the outstanding shares of Common Stock shall
be combined into a smaller number of shares, the Conversion Price
in effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased.
(4) If, after the First Exchange Date, the Corporation
shall, by dividend or otherwise, distribute to all holders of
shares of Common Stock evidences of indebtedness or assets
(including rights or warrants to purchase capital stock, or any
other securities, but excluding any dividend or distribution
referred to in subclause (ii)(1), any rights or warrants referred
to in subclause (ii)(2) and any dividend or distribution paid in
cash out of the retained earnings of the Corporation), then the
Conversion Price shall be adjusted by multiplying the Conversion
Price in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator
shall be the current market price per share (determined as
provided in subclause (iii)) of the Common Stock on the date
fixed for such determination less the then fair market value (as
determined by the Board of Directors, whose determination shall
be conclusive) of the portion of the assets or evidences of
indebtedness so distributed allocable to one share of Common
Stock and the denominator shall be such current market price per
share (determined as provided in subclause (iii)) of the Common
Stock, such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for
the
determination of stockholders entitled to receive such
distribution. In the event that the Corporation shall distribute
or shall have distributed to all holders of shares of Common
Stock rights or warrants to purchase capital stock that are not
initially detachable from the Common Stock (whether or not such
distribution shall have occurred prior to the date of issuance of
the Series D), then the distribution of separate certificates
representing such rights or warrants subsequent to their initial
distribution shall be deemed to be the distribution of such
rights or warrants for purposes of this subclause (ii)(4).
Notwithstanding the foregoing, in the event that the
Corporation shall distribute rights or warrants to purchase
capital stock (other than those referred to in subclause (ii)(2)
above) ("Rights") to holders of Common Stock, the Corporation
may, in lieu of making the foregoing adjustment pursuant to this
subclause (ii)(4), make proper provision so that each holder of
shares of Series D who converts such shares of Series D before
the record date for such distribution shall be entitled to
receive upon such conversion shares of Common Stock issued with
Rights and after the record date for such distribution and prior
to the expiration or redemption of the Rights shall be entitled
to receive upon such conversion, in addition to the shares of
Common Stock issuable upon such conversion, the same number of
Rights to which a holder of the number of shares of Common Stock
into which the shares of Series D so converted were convertible
immediately prior to the record date for such distribution would
have been entitled on the record date for such distribution in
accordance with the terms and provisions of and applicable to the
Rights.
(5) In case the Common Stock issuable upon the
conversion of the Series D shall be changed into the same or a
different number of shares of any class or classes of stock,
whether by capital reorganization, reclassification, or otherwise
(other than a stock dividend or a subdivision or combination of
shares provided for in subclause (ii)(1) or (ii)(3), or a
reorganization, merger, consolidation or sale of assets provided
for in subclause (vi)), then and in each such event the holders
of shares of Series D shall have the right thereafter to convert
such shares into the kind and amount of shares of stock and other
securities and property receivable upon such reorganization,
reclassification or other change, by holders of the number of
shares of Common Stock into which such shares of Series D might
have been converted immediately prior to such reorganization,
reclassification or change.
(iii) For the purpose of any computation under this Clause (e),
the current market price per share of Common Stock on any date shall be
deemed to be the average of the daily Closing Prices for 15 consecutive
Business Days selected by the Board of Directors commencing not more
than 60 and not less than 20 Business Days before the date in question.
The term "Closing Price" on any day shall mean (1) the last reported
sales price per share of Common Stock on such day on the New York Stock
Exchange, or (2) if the Common Stock is not listed or admitted for
trading on the New York Stock Exchange, the last reported sales price on
the principal national securities exchange on which the Common Stock is
admitted for trading, or (3) if the Common Stock is not listed or
admitted for trading on any national securities exchange, the last
reported sales or transaction price or the average of the closing bid
and asked quotations, as the case may be, with respect to the Common
Stock on the National Association of Securities Dealers, Inc. Automated
Quotation System, or any similar system then in use, or (4) if no such
quotations are available, the fair market value on the date in question
of a share of Common Stock as determined in good faith by the Board of
Directors; and the term "Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in The City of New York are authorized or obligated by law
or executive order to close.
(iv) Notwithstanding the provisions of subclause (ii) above, no
adjustment in the Conversion Price shall be required unless such
adjustment (plus any adjustments not previously made by reason of this
subclause (iv)) would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of
this subclause (iv) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations
under this Clause (e) shall be made to the nearest cent.
(v) The Corporation may make such reductions in the Conversion
Price, in addition to those required by this clause (e), as it considers
to be advisable in order to avoid or diminish any income tax to any
holder of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for income tax
purposes or for any other reason. The Corporation shall have the power
to resolve any ambiguity or correct any error in this Clause (e) and its
actions in so doing shall be final and conclusive.
(vi) In case the Corporation shall effect any capital
reorganization of the Common Stock (other than a subdivision,
combination, capital reorganization or reclassification provided for in
subclause (ii)(3) or (5)) or shall consolidate or merge with or into any
other corporation (other than a merger in which the Corporation is the
surviving corporation and the shares of Common Stock outstanding
immediately prior to such merger are to remain outstanding immediately
after such merger) or shall sell or transfer all or substantially all
its assets to any other corporation, lawful provision shall be made as a
part of the terms of such transaction whereby the holders of shares of
Series D shall receive upon conversion thereof, in lieu of each share of
Common Stock which would have been issuable upon conversion of such
shares if converted immediately prior to the consummation of such
transaction, the same kind and amount of stock (or other securities,
cash or property, if any) as may be issuable or distributable in
connection with such transaction with respect to each share of Common
Stock outstanding at the effective time of such transaction, subject to
subsequent adjustments for subsequent stock dividends and distributions,
subdivisions or combinations of shares, capital reorganizations,
reclassifications, consolidations or mergers as nearly equivalent as
possible to the adjustments provided for in this Clause (e).
(vii) Whenever the Conversion Price is adjusted as herein
provided:
(1) the Corporation shall compute the adjusted
Conversion Price and shall cause to be prepared a certificate
signed by an authorized officer of the Corporation setting forth
the adjusted Conversion Price and showing in reasonable detail
the facts upon which such adjustment is based and the computation
thereof and such certificate shall forthwith be filed with each
transfer agent for the shares of Series D; and
(2) a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion Price
shall,
as soon as practicable, be mailed to the holders of record of
outstanding shares of Series D.
(viii) In case:
(1) the Corporation shall declare a divided or other
distribution on its shares of Common Stock otherwise than in cash
out of its earned surplus;
(2) the Corporation shall authorize the granting to
the holders of its shares of Common Stock of rights or warrants
entitling them to subscribe for or purchase any shares of capital
stock of any class or of any other rights;
(3) of any reclassification of the shares of Common
Stock (other than a subdivision or combination of its outstanding
shares of Common Stock), or of any consolidation or merger to
which the Corporation is a party and for which approval of any
stockholders of the Corporation is required, or of the sale or
transfer of all or substantially all the assets of the
Corporation; or
(4) of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Corporation shall cause to be mailed to each transfer agent for
the shares of Series D and to the holders of record of the outstanding
shares of Series D, at least 20 days (or 10 days in any case specified
in subclause (viii)(1) or (2) above) prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date as
of which the holders of record of shares of Common Stock to be entitled
to such dividend, distribution, rights or warrants are to be determined,
or (y) the date on which such reclassification, consolidation, merger,
sale, transfer, liquidation, dissolution or winding up is expected to
become effective and the date as of which it is expected that holders of
record of shares of Common Stock shall be entitled to exchange their
shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up. Such notice shall also state whether such
transaction will result in any adjustment in the Conversion Price
applicable to the shares of Series D and, if so, shall state what the
adjusted Conversion Price will be and when it will become effective.
Neither the failure to give the notice required by this subclause
(viii), nor any defect therein, to any particular holder shall affect
the sufficiency of the notice or the legality or validity of any such
dividend, distribution, right, warrant, reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution or winding up, or the
vote on any action authorizing such with respect to the other holders.
(ix) The Corporation shall at all times reserve and keep
available out of its authorized shares of Common Stock, for the purpose
of delivery upon conversion of shares of Series D, the full number of
shares of Common Stock then deliverable upon the conversion of all
shares of Series D then outstanding and shall take all action necessary
so that shares of Common Stock so issued will be validly issued, fully
paid and nonassessable.
(x) The Corporation will pay any and all stamp or similar taxes
that may be payable in respect of the issuance or delivery of shares of
Common Stock on conversion of shares of Series D. The Corporation shall
not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of shares of
Common Stock in a name other than that in which the shares of Series D
so converted were registered, and no such issuance or delivery shall be
made unless and until the person requesting such issuance has paid to
the Corporation the amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been paid.
(xi) No fractional shares or scrip representing fractional
shares shall be issued upon the conversion of shares of Series D. If
any such conversion would otherwise require the issuance of a fractional
share an amount equal to such fraction multiplied by the Closing Price
per share of Common Stock (determined as provided in subclause (iii)
above) on the day of conversion shall be paid to the holder in cash by
the Corporation.
(xii) The certificate of any independent firm of public
accountants of recognized standing selected by the Board of Directors
shall be presumptive evidence of the correctness of any computation made
under this Clause (e).
(f) Voting Rights. Except as otherwise required by law,
holders of shares of Series D shall have no voting rights; provided,
however, that:
(i) Dividend Defaults.
(1) If at any time accrued dividends on the shares of
Series D or any Parity Stock shall not have been paid in an
aggregate amount equal to or greater than six quarterly dividends
on the shares of Series D or such Parity Stock at the time
outstanding, then, and in any such event, the number of Directors
then constituting the entire Board of Directors of the
Corporation shall automatically be increased by two Directors and
the holders of shares of Series D and the holders of shares of
Parity Stock, voting together as a single class, shall be
entitled to fill such newly created directorships. Such right to
vote as a single class to elect two Directors shall, when vested,
continue until all dividends in default on the shares of Series D
and such Parity Stock, as the case may be, shall have been paid
in full and, when so paid, such right to elect two Directors
separately as a class shall cease, subject, always, to the same
provisions for the vesting of such right to elect two Directors
separately as a class in the case of future dividend defaults.
At any time when such right to elect two Directors separately as
a class shall have so vested the Corporation may, and upon the
written request of the holders of record of not less than 20% of
the total number of shares of Series D and such Parity Stock then
outstanding shall, call a special meeting of the holders of such
shares to fill such newly created directorships for the election
of Directors. In the case of such a written request, such
special meeting shall be held within 90 days after the delivery
of such request and in either case, at the place and upon the
notice provided by law and in the By-Laws of the Corporation,
provided that the Corporation shall not be required to call such
a special meeting if such request is received less than 120 days
before the date fixed for the next ensuing annual meeting of
stockholders of the Corporation, at which meeting such newly
created directorships shall be filled by the holders of such
shares of Series D and such Parity Stock.
(2) So long as any shares of Series D are outstanding
the By-Laws of the Corporation shall contain provisions ensuring
that the number of Directors of the Corporation shall at all
times be such that the exercise, by the holders of shares of
Series D and the holders of shares of Parity Stock, of the right
to elect Directors under the circumstances provided in subclause
(i)(1) will not contravene any provisions of the By-Laws or
Charter.
(3) A director elected pursuant to subclause (i)(1)
shall serve until the earlier of (x) the next annual meeting of
the stockholders of the Corporation at which such director's
successor is to be elected and the election (by the holders of
shares of Series D and Parity Stock) and qualification of his
respective successor or (y) the next annual meeting of the
stockholders of the Corporation following the date upon which all
dividends in default on the shares of Series D and such Parity
Stock shall have been paid in full. If, prior to the end of the
term of any Director elected as aforesaid, a vacancy in the
office of such Director shall occur during the continuance of a
default in dividends on the shares of Series D or such Parity
Stock by reason of death, resignation or disability, such vacancy
shall be filled for the unexpired term by the appointment by the
remaining
Director elected as aforesaid of a new Director for the unexpired
term of such former Director.
(ii) Miscellaneous. Without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Series D and
outstanding shares of Parity Stock, voting as a single class, the
Corporation may not:
(1) amend any provision of the Charter which would
adversely affect the voting powers or other rights or preferences
of holders of the shares of Series D; or
(2) authorize or create any class of stock senior to
the Series D as to dividends or upon liquidation.
C. Rank. Each series of Preferred Stock shall have such
preferences as to dividends and assets and amounts distributable on
liquidation, dissolution or winding up or otherwise as shall be declared
by such resolution or resolutions establishing such series.
D. Dividends.
(i) The holders of Preferred Stock shall be entitled to
receive cash dividends when and as declared by the Board of Directors at
such rate per share per annum, cumulatively if so provided, and with
such preferences, as shall have been fixed by the Board of Directors,
and not more before any dividends shall be declared or paid upon or set
apart for the Common Stock or any other class of stock ranking junior
thereto, and such dividends on each series of Preferred Stock shall
cumulate, if at all, from and after the dates fixed by the Board of
Directors with respect to such cumulation. Unpaid cumulated dividends
shall bear no interest.
(ii) If dividends on any shares of Preferred Stock are not
declared in full, then such dividends as are declared shall be declared
ratably on all shares of stock of each series of equal preference in
proportion to the respective unpaid cumulative dividends, if any, to the
end of the then current dividend period. No ratable distribution shall
be made with respect to any series until cumulative dividends in full
have been declared and paid on any series standing senior in preference.
(iii) Unless dividends on all outstanding shares of Preferred
Stock having cumulative dividend rights shall have been fully paid for
all past quarterly dividend periods and the full dividends thereon for
the quarterly dividend period current at the time shall have been paid
or declared and funds set apart therefor, and unless all required
sinking fund payments, if any, shall have been made or provided for, no
dividend (except a dividend payable in Common Stock) shall be paid upon
or declared or set apart for the Common Stock.
(iv) Subject to the foregoing provisions, the Board of Directors
may declare and pay dividends on the Common Stock, to the extent
permitted by law.
E. Liquidation or Dissolution.
(i) In the event of any liquidation or dissolution or winding up
of this Corporation (hereinafter referred to as "liquidation") the
holders of Preferred Stock shall be entitled to receive in cash, out of
the assets of this Corporation, full payment of the applicable
liquidation preference fixed for each series pursuant to paragraph B
above, together with unpaid cumulative dividends thereon to the date of
liquidation, and no more.
(ii) If upon liquidation the assets of this Corporation
available for distribution to stockholders shall be insufficient to
permit the payment in full of the preferential amounts payable to the
holders of Preferred Stock, then all such assets shall be distributed
ratably among the holders of all shares of stock of each series of equal
preference in proportion to the respective amounts that would be payable
per share if such assets were sufficient to permit payment in full. No
ratable distribution shall be made with respect to any series until
distributions in full have been paid to the holders of all series
standing senior in preference.
(iii) After satisfaction of the preferential requirements of the
Preferred Stock upon any liquidation of this Corporation, the holders of
Common Stock shall be entitled to share ratably in the distribution of
all remaining assets of this Corporation available for distribution.
(iv) A consolidation or merger of this Corporation with or into
any other corporation or corporations or the sale or conveyance (whether
for cash, securities or other property) of all or substantially all of
the assets of this Corporation as an entirety shall not be deemed or
construed to be a liquidation of this Corporation for the purpose of the
foregoing provisions of this paragraph E.
F. Voting Rights.
(i) The holders of the Common Stock shall be entitled to one
vote for each share held by them of record on the books of this
Corporation. The holders of each series of Preferred Stock shall have
such voting rights, if any, as shall be provided for in the resolution
or resolutions of the Board of Directors establishing such class or
series.
(ii) No action required or permitted to be taken at any annual
or special meeting of the stockholders may be taken without a meeting
and the power of stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
G. Foreign Ownership. The By-Laws of this Corporation, and
procedures established from time to time by the Board of Directors
consistent with the By-Laws, may provide that the outstanding shares of
this Corporation shall at all times be owned by citizens of the United
States to such extent as will in the judgment of the Board reasonably
assure this Corporation's continuing status as a United States citizen
within the provisions of the Shipping Act, 1916, as amended, or any
successor statute applicable to the business being conducted by this
Corporation, and in order to assure such continuing status said
provisions may provide restrictions relating to the transfer of the
shares of this Corporation.
Fifth:
A. Number of Directors. The authorized number of Directors
of this Corporation shall be determined from time to time by resolution
adopted by the affirmative vote of a majority of the entire Board of
Directors at any regular or special meeting of said Board, within any
limits prescribed in the By-Laws of this Corporation; provided, however,
that in no event shall the number of directors be less than five.
B. Classes of Directors. The Board of Directors shall be
divided into three classes, designated Class I, Class II and Class III,
as nearly equal in number as possible, and the term of office of
Directors of one class shall expire at each annual meeting of
stockholders, and in all cases as to each Director until his successor
shall be elected and shall qualify or until his earlier resignation,
removal from office, death or incapacity. Additional directorships
resulting from an increase in number of Directors shall be apportioned
among the classes as equally as possible. The initial term of office of
Directors of Class I shall expire at the annual meeting of stockholders
in 1984, that of Class II shall expire at the annual meeting in 1985 and
that of Class III shall expire at the annual meeting in 1986, and in all
cases as to each Director until his successor shall be elected and shall
qualify or until his earlier resignation, removal from office, death or
incapacity. At each annual meeting of stockholders the number of
Directors equal to the number of Directors of the class whose term
expires at the time of such meeting (or, if less, the number of
Directors properly nominated and qualified for election) shall be
elected to hold office until the third succeeding annual meeting of
stockholders after their election.
C. Vacancies. In case of any increase in the number of
Directors, the additional Directors may be elected by the Board of
Directors to hold office until the next election of the class for which
such Directors shall have been chosen and until their successors are
elected and qualified. In case of vacancies in the Board of Directors,
a majority of the remaining members of the Board may elect Directors to
fill such vacancies to hold office until the next election of the class
for which such Directors shall have been chosen and until their
successors are elected and qualified.
Sixth:
A. Except as otherwise expressly provided in paragraph C of
this Article Sixth, none of the following actions or transactions shall
be effected by this Corporation, or approved by this Corporation as
stockholder of any subsidiary of this Corporation, unless authorized by
the affirmative vote of Stockholders required by paragraph B of this
Article Sixth, if, as of the record date for the determination of the
stockholders entitled to vote thereon, any Interested Stockholder
(as hereinafter defined) exists:
(i) any merger or consolidation of this Corporation or
any of its subsidiaries with or into such Interested Stockholder,
or
(ii) any sale, lease, exchange or other disposition of
all or any substantial part of the assets of this Corporation or
any of its subsidiaries to or with such Interested Stockholder,
or
(iii) the issuance or delivery of any voting securities
of this Corporation or any of its subsidiaries to such Interested
Stockholder, in exchange for cash, other assets or securities, or
a combination thereof, or
(iv) any dissolution or liquidation of this Corporation.
B. The actions and transactions described in paragraph A of
this Article Sixth shall not be effected by this Corporation, or
approved by this Corporation as stockholder of any subsidiary
corporation, as the case may be, under the circumstances described in
said paragraph A, unless authorized by the affirmative vote of at least
seventy-five percent (75%) of the outstanding shares of this Corporation
entitled to vote.
C. The vote of stockholders specified in paragraph A of this
Article Sixth shall not apply to any action or transaction described in
such paragraph if the Board of Directors of this Corporation shall have
approved the action or transaction before any corporation, person or
entity became an Interested Stockholder.
D. For the purpose of this Article Sixth (a) the term
"Interested Stockholder" shall mean any corporation, person or entity
other than this Corporation or any of its subsidiaries or The Signal
Companies, Inc., which beneficially owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of this
Corporation entitled to vote; (b) an Interested Stockholder shall be
deemed to own or control, directly or indirectly, any outstanding shares
of stock of this Corporation (i) which it has the right to acquire
pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise, or (ii) which are beneficially owned,
directly or indirectly (including shares deemed owned through
application of clause (i) above), by any other corporation, person or
other entity (x) with which it or its "affiliate" or "associate" (as
defined below) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of stock of this
Corporation or (y) which is its "affiliate" or "associate" as those
terms are defined in the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended; (c) "outstanding shares of
this Corporation entitled to vote" and "voting securities" shall mean
such shares as are entitled to vote generally in the election of
Directors, considered as one class; and (d) "subsidiary" or
"subsidiaries" shall mean any corporation of which this Corporation
owns, directly or indirectly, fifty percent (50%) or more of the voting
stock.
E. The Board of Directors of this Corporation shall have the
power and duty to determine for the purposes of this Article Sixth, on
the basis of information then known to the Board of Directors, whether
(i) any Interested Stockholder exists, or is an "affiliate" or an
"associate" (as defined above) of another, and (ii) any proposed sale,
lease, exchange, or other disposition of part of the assets of this
Corporation involves a substantial part of the assets of this
Corporation or any of its subsidiaries. Any such determination by the
Board shall be conclusive and binding for all purposes.
Seventh: The amendment or repeal of Articles Fifth, Sixth,
Seventh, Eighth, Tenth and paragraphs F and G of Article Fourth of this
Certificate of Incorporation shall require the approval of the holders
of shares representing at least seventy-five percent (75%) of the shares
of this Corporation entitled to vote in the election of Directors,
voting as one class.
Eighth:
A. None of the actions or transactions listed below shall be
effected by this Corporation, or approved by this Corporation as
stockholder of any subsidiary of this Corporation if, as of the record
date for the determination of the stockholders entitled to vote thereon,
any Interested Stockholder (as hereinafter defined) exists, unless the
requirements of paragraphs B, C, D and E of this Article Eighth are
fully complied with:
(i) any merger or consolidation of this Corporation or
any of its subsidiaries with or into such Interested Stockholder,
or
(ii) any sale, lease, exchange or other disposition of
all or any substantial part of the assets of this Corporation or
any of its subsidiaries to or with such Interested Stockholder,
or
(iii) the issuance or delivery of any voting securities
of this Corporation or any of its subsidiaries to such Interested
Stockholder in exchange for cash, other assets or securities, or
a combination thereof, or
(iv) any dissolution or liquidation of this Corporation.
B. The cash or fair market value of the property, securities
or other consideration to be received per share by holders of the
capital stock of this Corporation in such action or transaction is not
less than the highest per share price paid by the Interested Stockholder
or by any persons whose stock it beneficially owns or controls in
acquiring any of
its or their holdings of capital stock of this Corporation; such price
shall be proportionately adjusted for any subsequent increase or
decrease in the number of issued shares of this Corporation's capital
stock resulting from a subdivision or consolidation of shares or any
other capital adjustment, the payment of a stock dividend, or other
increase or decrease in such shares effected without receipt of
consideration of this Corporation.
C. After becoming an Interested Stockholder and prior to
consummation of such action or transaction: (i) such Interested
Stockholder shall not have acquired from this Corporation or any of its
subsidiaries any newly issued or treasury shares of capital stock or any
newly issued securities convertible into capital stock of this
corporation or any of its subsidiaries, directly or indirectly (except
upon conversion of convertible securities acquired by it prior to
becoming an Interested Stockholder or as a result of a pro rata stock
dividend of stock split or other distribution of stock to all
shareholders pro rata); (ii) 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 tax credits provided by this Corporation or any
of its subsidiaries, or made any major changes in this Corporation's or
any of its subsidiaries' businesses or capital structures or reduced the
current rate of dividends payable on this Corporation's capital stock
below the rate in effect immediately prior to the time such Interested
Stockholder became an Interested Stockholder (the current rate of
dividends being the rate of the current dividend to the net income of
this Corporation for the full fiscal quarter immediately preceding the
quarter in which such dividend is paid; and the rate of dividends in
effect immediately prior to the time such Interested Stockholder became
an Interested Stockholder being the ratio of (x) the aggregate dividends
paid during the four full fiscal quarters immediately preceding the time
such Interested Stockholder became an Interested Stockholder to (y) the
adjusted net income of this Corporation for the four successive full
fiscal quarters immediately preceding the last quarter in which such
dividends were paid); (iii) such Interested Stockholder shall have taken
all required actions to ensure that this Corporation's Board of
Directors includes representation by continuing Directors (as
hereinafter defined) at least proportionate to the stockholders of this
Corporation's remaining public stockholders (with a continuing Director
to occupy any Board position resulting from a fraction and, in any
event, with at least one continuing Director to serve on the Board so
long as there are any remaining public stockholders).
D. A proxy statement responsive to the requirements of the
Securities Exchange Act of 1934, as amended whether or not this
Corporation is then subject to such requirements, shall be mailed to the
stockholders of this Corporation for the purpose of soliciting
stockholder approval of such action or transaction and shall contain at
the front thereof, in a prominent place, any recommendations as to the
advisability or inadvisability of the action or transaction which the
continuing Directors may choose to state.
E. For the purpose of this Article Eighth, (a) the term
"Interested Stockholder" shall mean any other corporation, person or
entity, other than this Corporation or any of its subsidiaries or The
Signal Companies, Inc., which beneficially owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of this
Corporation entitled to vote (for this purpose the provisions of
paragraphs D and E of Article Sixth shall apply to this paragraph E(a)
of this Article Eighth as if set forth in full in this paragraph E(a) of
this Article Eighth, except that the reference to Article Sixth in such
paragraphs D and E of Article Sixth shall be deemed to be a reference to
this Article Eighth); (b) the term "continuing Director" shall mean a
Director who was a member of the Board of Directors of this Corporation
immediately prior to the time that any Interested Stockholder involved
in the proposed action or transaction became an Interested Stockholder
or a Director nominated by a majority of the remaining continuing
Directors; and (c) the term "remaining public stockholders" shall mean
the holders of this Corporation's capital stock other than the
Interested Stockholder and stockholders whose shares the Interested
Stockholder beneficially owns or controls.
F. The requirements set forth in paragraph A through E of
this Article Eighth shall not apply to any action or transaction
described in paragraph A if the Board of Directors of this Corporation
shall have approved the action or transaction before any corporation,
person or entity became an Interested Stockholder.
Ninth: The name and mailing address of the sole incorporator is
as follows:
Name Mailing Address
Natomas Company 601 California Street
San Francisco, CA 94108
Tenth: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to
make, alter, amend or repeal the By-Laws of this Corporation, without
any action on the part of the stockholders, by the affirmative vote of
at least two-thirds of the Directors of this Corporation, which shall
include the affirmative vote of at least one Director of each class of
the Board of Directors if the Board shall then be divided into classes.
The By-Laws may also be altered, amended or repealed by the affirmative
vote of the holders of shares representing at least seventy-five percent
(75%) of the shares of this Corporation entitled to vote in the election
of Directors, voting as one class.
Eleventh: This Corporation may in its By-Laws confer powers upon
its Board of Directors in addition to the foregoing and in addition to
the powers and authorities expressly conferred upon them by the laws of
the State of Delaware.
Twelfth: The stockholders and Board of Directors shall have
power, if the By-Laws so provide, to hold their meetings and to keep the
books of this Corporation (except such as are required by the laws of
the State of Delaware to be kept in Delaware) and documents and papers
of this Corporation outside the State of Delaware, and to have one or
more offices within or without the State of Delaware at such places as
may be designated from time to time by the Board of Directors.
Thirteenth: All of 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
of this Corporation.
Fourteenth:
A. Any direct or indirect purchase or other acquisition by
this Corporation of any of this Corporation's voting securities of any
class at a price per share greater than the Fair Market Value of such
securities on the date of such purchase or acquisition or any agreement
in respect thereof from any Interested Stockholder who has beneficially
owned such securities for less than two years prior to such date shall,
except as hereinafter expressly provided, require the affirmative vote
of the holders of at least a majority of the shares of capital stock of
this Corporation outstanding and entitled to vote on such date,
excluding any such shares beneficially owned by such Interested
Stockholder, voting together as a single class (it being understood that
for the purposes of this Article Fourteenth, each such share shall have
the number of votes granted to it pursuant to paragraph F of Article
Fourth); provided, however, that no such affirmative vote shall be
required with respect to any purchase or other acquisition of securities
made as part of a tender or exchange offer by this Corporation to
purchase securities of the same class made on the same terms to all
holders of such securities and complying with the applicable
requirements of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (or any subsequent provisions replacing
such Act, rules or regulations) or which shall have been approved, or is
being effected pursuant to agreements or arrangements which shall have
been approved, by the Board of Directors of this Corporation prior to
the time such Interested Stockholder became an Interested Stockholder.
B. For the purposes of this Article Fourteenth, the
provisions of paragraphs D and E of Article Sixth and paragraph E of
Article Eighth shall apply to this Article Fourteenth as if set forth in
full in this paragraph B of this Article Fourteenth except that the
reference of Article Sixth in such paragraphs D and E of Article Sixth
and such paragraph E of Article Eighth shall be deemed to be a reference
to this Article Fourteenth.
C. For the purposes of this Article Fourteenth, the term
"Fair Market Value" shall mean the last closing sale price on the date
immediately preceding the date in question of a share of such voting
securities on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such securities are not quoted on such Composite Tape, on
the New York Stock Exchange or the principal United States securities
exchange registered under the Securities Exchange Act of 1934, as
amended, on which such securities are listed, or, if such securities are
not listed on any such exchange, the highest last transaction price or
closing bid quotation, as the case may be, with respect to a share of
such securities on the date immediately preceding the date in question
on the National Association of Securities Dealers, Inc. Automated
Quotations System or any similar 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 securities as determined in good faith by a majority
of the continuing Directors.
D. The amendment or repeal of, or the adoption of any
provision inconsistent with, this Article Fourteenth shall require the
approval of the holders of shares representing at least seventy-five
percent (75%) of the shares of this Corporation entitled to vote in the
election of Directors, voting together as a single class and any such
amendment, repeal or adoption which is proposed by or on behalf of an
Interested Stockholder or any affiliate or associate of an Interested
Stockholder shall require the affirmative vote of not less than a
majority of the votes entitled to be cast by the remaining public
stockholders voting together as a single class.
Fifteenth: A. A director of this Corporation shall not be
liable to this Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director except for liability which, by
express provision of the General Corporation Law of Delaware, as in
effect from time to time (hereinafter the "Delaware Law"), cannot be
eliminated.
B.(i) This Corporation shall, to the fullest extent
permitted by Delaware Law, indemnify any person (the
"Indemnitee") who is or was involved in any manner (including,
without limitation, as a party or a witness) in any threatened,
pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action, suit or
proceeding brought by or in the right of this Corporation to
procure a judgment in its favor) (a "Proceeding") by reason of
the fact that the Indemnitee is or was a Director, officer or
employee of this Corporation, or is or was serving another entity
in such capacity at the request of this Corporation, against all
liabilities and expenses actually and reasonably incurred by the
Indemnitee in connection with such Proceeding.
(ii) The right to indemnification conferred by this
Article Fifteenth shall be presumed to have been relied upon by
the Indemnitee and shall be enforceable as a contract right.
This Corporation may enter into contracts to provide individual
Indemnitees with specific rights of indemnification to the
fullest extent permitted by Delaware Law and may create trust
funds, grant security interests, obtain letters of credit or use
other means to
ensure the payment of such amounts as may be necessary to effect
the rights provided in this Article Fifteenth or in any such
contract.
(iii) Upon making a request for indemnification, the
Indemnitee shall be presumed to be entitled to indemnification
under this Article Fifteenth and this Corporation shall have the
burden of proof to overcome that presumption in reaching any
contrary determination. Such indemnification shall include the
right to receive payment in advance of any expenses incurred by
the Indemnitee in connection with any Proceeding, consistent with
the provisions of Delaware Law.
C. Any repeal or modification of the foregoing provisions of
this Article Fifteenth shall not adversely affect any right or
protection of any Director or any Indemnitee existing at the time of
such repeal or modification.
D. The amendment or repeal of this Article Fifteenth shall
require the approval of the holders of shares representing at least
seventy-five percent (75%) of the shares of this Corporation entitled to
vote in the election of Directors, voting as one class.