RESTATED
CERTIFICATE OF INCORPORATION
OF
UNISYS CORPORATION
ARTICLE I
The name of the corporation (hereinafter called the "Corporation") is
Unisys Corporation.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The purpose or purposes for which the Corporation is organized are:
To engage in the business of designing, manufacturing and marketing of
components, products, systems and forms and supplies for the recording,
storing, handling, computing, processing and communicating of information and
data, and of providing related services; and
To engage in any other lawful act or activity for which a corporation may
be organized under the General Corporation Law of Delaware.
ARTICLE IV
Section 1. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 400,000,000 shares, divided into
two classes consisting of 360,000,000 shares of Common Stock, par value $.01
per share ("Common Stock"), and 40,000,000 shares of Preferred Stock, par value
$1 per share ("Preferred Stock"). The Board of Directors shall have authority
by resolution to issue the shares of Preferred Stock from time to time on such
terms as it may determine and to divide the Preferred Stock into one or more
series and, in connection with the creation of any such series, to determine
and fix by the resolution or resolutions providing for the issuance of shares
thereof:
A. the distinctive designation of such series, the number of shares
which shall constitute such series, which number may be increased or decreased
(but not below the number of shares then outstanding) from time to time by
action of the Board of Directors, and the stated value thereof, if different
from the par value thereof;
B. the dividend rate, the times of payment of dividends on the
shares of such series, whether dividends shall be cumulative, and, if so, from
what date or dates, and the preference or relation which such dividends will
bear to the dividends payable on any shares of stock of any other class or any
other series of this class;
C. the price or prices at which, and the terms and conditions on
which, the shares of such series may be redeemed;
D. whether or not the shares of such series shall be entitled to the
benefit of a retirement or sinking fund to be applied to the purchase or
redemption of such shares and, if so entitled, the amount of such fund and the
terms and provisions relative to the operation thereof;
E. whether or not the shares of such series shall be convertible
into, or exchangeable for, any other shares of stock of the Corporation or any
other securities and, if so convertible or exchangeable, the conversion price
or prices, or the rates of exchange, and any adjustments thereof, at which such
conversion or exchange may be made, and any other terms and conditions of such
conversion or exchange;
F. the rights of the shares of such series in the event of voluntary
or involuntary liquidation, dissolution or winding up or upon any distribution
of the assets, of the Corporation;
G. whether or not the shares of such series shall have priority over
or parity with or be junior to the shares of any other class or series in any
respect, or shall be entitled to the benefit of limitations restricting (i) the
creation of indebtedness of the Corporation, (ii) the issuance of shares of any
other class or series having priority over or being on a parity with the shares
of such series in any respect, or (iii) the payment of dividends on, the making
of other distributions in respect of, or the purchase or redemption of shares
of any other class or series on parity with or ranking junior to the shares of
such series as to dividends or assets, and the terms of any such restrictions,
or any other restriction with respect to shares of any other class or series on
parity with or ranking junior to the shares of such series in any respect;
H. whether such series shall have the voting rights, in addition to
any voting rights provided by law and, if so, the terms of such voting rights,
which may be general or limited; and
I. any other powers, preferences, privileges, and relative
participating, optional, or other special rights of such series, and the
qualifications, limitations or restrictions thereof, to the full extent now or
hereafter permitted by law.
The powers, preferences and relative participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of
such series, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall be cumulative.
Section 2. Each holder of Common Stock shall be entitled to one vote for
each share of Common Stock held of record on all matters on which stockholders
generally are entitled to vote. Subject to the provisions of law and the
rights of the Preferred Stock and any other class or series of stock having a
preference as to dividends over the Common Stock then outstanding, dividends
may be paid on the Common Stock at such times and in such amounts as the Board
of Directors shall determine. Upon the dissolution, liquidation or winding up
of the Corporation, after any preferential amounts to be distributed to the
holders of the Preferred Stock and any other class or series of stock having a
preference over the Common Stock then outstanding have been paid or declared
and set apart for payment, the holders of the Common Stock shall be entitled to
receive all the remaining assets of the Corporation available for distribution
to its stockholders ratably in proportion to the number of shares held by them,
respectively.
Section 3. Junior Preferred Stock:
A. Designation and Amount. The shares of such series shall be
designated as "Junior Participating Preferred Stock" (the "Junior Preferred
Stock") and the number of shares constituting such series shall be 1,500,000.
Such number of shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the number of shares of
Junior Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
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 Junior Preferred Stock with respect to dividends, the holders of
shares of Junior Preferred Stock, in preference to the holders of Common Stock
and of any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Junior Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $15 or (b) subject to the provision for
adjustment hereinafter set forth, 300 times the aggregate per share amount of
all cash dividends, and 300 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 Preferred Stock. In the event 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 in each such case the
amount to which holders of shares of Junior Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(ii) The Corporation shall declare a dividend or distribution
on the Junior Preferred Stock as provided in Paragraph (i) of this Subsection
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 $15 per share on
the Junior Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on
outstanding shares of Junior Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Junior
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 Junior
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 Junior 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 Junior 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.
C. Voting Rights. The holders of shares of Junior Preferred Stock
shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter set
forth, each share of Junior Preferred Stock shall entitle the holder thereof to
300 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay any
dividend on 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 in each such case the number of votes per share to which holders of shares
of Junior Preferred Stock were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(ii) Except as otherwise provided herein or by law, the holders
of shares of Junior 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) The Certificate of Incorporation of the Corporation shall
not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Junior Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least two-
thirds of the outstanding shares of Junior Preferred Stock, voting together as
a single series.
(iv) Except as set forth herein, holders of Junior Preferred
Stock shall have no voting rights.
D. Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or
distributions payable on the Junior Preferred Stock as provided in Subsection B
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(a) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Junior Preferred Stock;
(b) 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 Junior
Preferred Stock, except dividends paid ratably on the Junior 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; or
(c) purchase or otherwise acquire for consideration any
shares of Junior Preferred Stock, or any shares of stock ranking on a parity
with the Junior 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 Subsection (D) purchase or otherwise acquire such shares at such time and
in such manner.
E. Reacquired Shares. Any shares of Junior 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, subject to the conditions and restrictions on issuance set forth herein.
F. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution, or winding up) to the Junior Preferred Stock
unless, prior thereto, the holders of shares of Junior 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, provided that the holders of shares of Junior Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 300 times the
aggregate amount to be distributed per share to holders of Common Stock, or (2)
to the holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preferred Stock, except
distributions made ratably on the Junior 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 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 in each
such case the aggregate amount to which holders of shares of Junior Preferred
Stock were entitled immediately prior to such event under the proviso in clause
(1) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
G. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Junior 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 300 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on 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 in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Junior Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
H. No Redemption. The shares of Junior Preferred Stock shall not be
redeemable.
I. Rank. Nothing herein shall preclude the Board of Directors from
creating or authorizing any class or series of Preferred Stock ranking on a
parity with or prior to the Junior Preferred Stock as to the payment of
dividends or the distribution of assets.
Section 4. Series A Cumulative Convertible Preferred Stock:
A. Designation and Amount. The designation of this series which
consists of 30,000,000 shares of Preferred Stock is "Series A Cumulative
Convertible Preferred Stock" (the "Series A Preferred Stock"). The number of
shares of the Series A Preferred Stock may be decreased from time to time by a
resolution or resolutions of the Board of Directors; provided that no such
amendment shall reduce the number of shares of the Series A Preferred Stock to
a number less than the aggregate number of shares of the Series A Preferred
Stock then outstanding plus the number of shares reserved for issuance upon the
conversion or exchange of any outstanding securities convertible or
exchangeable into Series A Preferred Stock.
B. Rank. All Series A Preferred Stock shall rank prior to the
Corporation's Common Stock and to the Corporation's Junior Participating
Preferred Stock, both as to payment of dividends and as to distribution of
assets upon liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary.
C. Dividends.
(i) The holders of shares of Series A Preferred Stock shall be
entitled to receive cash dividends at the annual rate of $3.75 per share, and
no more, which shall be payable quarterly on the 15th day of October, January,
April and July of each year to holders of record as they appear on the stock
books of the Corporation on such record dates as are fixed by the Board of
Directors, but only when, as and if declared by the Board of Directors out of
funds at the time legally available for the payment of dividends. Dividends on
shares of Series A Preferred Stock issued pursuant to the merger of SP Merger
Co. Inc., a Delaware corporation and a wholly owned subsidiary of the
Corporation, and Sperry Corporation (the "Merger") shall be cumulative and
shall accrue without interest from the effective time of the Merger (the
"Effective Time") and dividends on all other shares of Series A Preferred Stock
shall be cumulative and shall accrue without interest from the later of the
Effective Time or the last dividend payment date immediately preceding the date
of issuance of such shares. No dividends or other distributions, other than
dividends payable solely in shares of capital stock of the Corporation ranking
junior as to dividends to the Series A Preferred Stock (collectively, the
"Junior Dividend Stock"), shall be paid or set apart for payment on, and no
purchase, redemption or other acquisition shall be made of, any shares of
Junior Dividend Stock unless and until all accrued and unpaid dividends on the
Series A Preferred Stock, including the full dividend for the then current
quarterly dividend period, shall have been declared and paid or a sum
sufficient for payment thereof set apart.
(ii) No full dividends shall be declared or paid or set apart
for payment on any class or series of capital stock ranking, as to dividends,
on a parity with the Series A Preferred Stock (the "Parity Dividend Stock") for
any period unless full cumulative dividends have been, or contemporaneously
are, declared and paid or set apart for such payment on the Series A Preferred
Stock for all dividend payment periods terminating on or prior to the date of
payment of such full cumulative dividends. When dividends are not paid in full
upon the Series A Preferred Stock and the Parity Dividend Stock, all dividends
declared and paid or set aside for payment upon shares of Series A Preferred
Stock and the Parity Dividend Stock shall be declared and paid or set aside
for payment pro rata so that the amount of dividends declared and paid or set
aside for payment per share on the Series A Preferred Stock and the Parity
Dividend Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of Series A Preferred Stock and the
Parity Dividend Stock bear to each other.
(iii) Any reference to "distribution" contained in this
Subsection C shall not be deemed to include any stock dividend or distributions
made in connection with any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.
D. Liquidation Preference. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of shares of Series A Preferred Stock shall be entitled to receive
out of the assets of the Corporation, whether such assets are capital or
surplus of any nature, an amount equal to the dividends accrued and unpaid
thereon to the date of final distribution to such holders, whether or not
declared, without interest, and a sum equal to $50 per share, and no more,
before any payment shall be made or any assets distributed to the holders of
shares of Common Stock or any other class or series of the Corporation's
capital stock ranking junior as to liquidation rights to the Series A Preferred
Stock (the "Junior Liquidation Stock"). The entire assets of the Corporation,
available for distribution after the liquidation preferences of any class or
series of capital stock ranking prior to the Series A Preferred Stock are fully
met, shall be distributed ratably among the holders of shares of the Series A
Preferred Stock and any other class or series of the capital stock hereafter
issued having parity as to liquidation rights with the Series A Preferred Stock
in proportion to the respective accrued and unpaid dividends and preferential
amounts to which each is entitled (but only to the extent of such accrued and
unpaid dividends and preferential amounts) when such assets are not sufficient
to pay in full the aggregate amounts payable thereon. Neither a consolidation
or merger of the Corporation with another corporation nor a sale or transfer of
all or part of the Corporation's assets for cash, securities or other property
will be considered a liquidation, dissolution or winding up of the Corporation.
E. Redemption.
(i) Subject to the limitations set forth below, the
Corporation, at its option, may redeem at any time after the issuance thereof,
the whole, or from time to time any part, of the Series A Preferred Stock;
provided, however, that no shares of Series A Preferred Stock may be redeemed
prior to June 1, 1989 unless the Closing Price (as defined below) of the Common
Stock on each of at least 20 Trading Days (as defined below) out of a 30
consecutive Trading Days' period ending within 5 Trading Days of the date of
the notice of redemption shall have equalled or exceeded 150% of the then
effective conversion price. A "Trading Day" shall be any day on which the
principal national securities exchange on which the Common Stock is admitted to
trading or listed is open, or, if the Common Stock is not so admitted to
trading or so listed, any day except Saturday, Sunday, a legal holiday or any
day on which banking institutions in the City of New York are obligated or
authorized to close. The "Closing Price" for each day shall be the last
reported sale price on that day or, in case no such reported sale takes place
on such day, the average of the last reported bid and asked prices on that day,
in either case, as reported in the consolidated transaction reporting system
for the principal national securities exchange on which the Common Stock is
admitted to trading or listed, or if not so listed or admitted to trading, the
average of the highest reported bid and lowest reported asked prices as
furnished by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other nationally recognized quotation
service selected by the Corporation for the purpose, if NASDAQ is not at the
time furnishing quotations. If the Common Stock is not publicly held or so
listed or traded, the "Closing Price" shall mean the fair value per share as
determined in good faith by the Board of Directors, whose determination shall
be conclusive, and described in a resolution of the Board of Directors
certified by the Secretary or an Assistant Secretary of the Corporation. The
redemption price per share will be the following if the Series A Preferred
Stock is redeemed during the 12-month period ending June 1,
Redemption Redemption
Year Price Year Price
1987 $53.750 1992 $51.875
1988 53.375 1993 51.500
1989 53.000 1994 51.125
1990 52.625 1995 50.750
1991 52.250 1996 50.375
and will be $50 per share if redeemed at any time after June 1, 1996, plus, in
each case, an amount in cash equal to all dividends on shares of Series A
Preferred Stock accrued and unpaid thereon, whether or not declared, pro rata
to the date fixed for redemption, such sum being hereinafter referred to as the
"Redemption Price".
(ii) In case of the redemption of less than all of the then
outstanding shares of Series A Preferred Stock, the Corporation shall designate
by lot, or in such other manner as the Board of Directors may determine, the
shares to be redeemed, or shall effect such redemption pro rata.
Notwithstanding the foregoing, the Corporation shall not redeem less than all
of the shares of Series A Preferred Stock at any time outstanding, unless all
dividends accrued and in arrears upon all shares of Series A Preferred Stock
then outstanding shall have been paid for all past dividend periods, and until
full dividends for the then current dividend period on all shares of Series A
Preferred Stock then outstanding, other than the shares to be redeemed, shall
have been paid or declared and the full amount thereof set apart for payment.
(iii) Not more than 60 nor less than 30 days prior to the
redemption date, notice by first class mail, postage prepaid, shall be given to
the holders of record of the shares of Series A Preferred Stock to be redeemed,
addressed to such stockholders at their last addresses as shown by the records
of the Corporation.
(iv) Any notice which is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the stockholder
receives such notice; and failure to give such notice by mail, or any defect in
such notice, to the holders of any shares designated for redemption shall not
affect the validity of the proceedings for the redemption of any other shares
of Series A Preferred Stock. On or after the date fixed for redemption as
stated in such notice, each holder of the shares called for redemption shall
surrender the certificate evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be entitled to receive
payment of the Redemption Price. If less than all the shares represented by
any such surrendered certificate are to be redeemed, a new certificate shall be
issued representing the unredeemed shares.
(v) The Corporation shall, on or prior to the date fixed for
redemption of any shares, but not earlier than 45 days prior to the date fixed
for redemption, deposit with its transfer agent or other redemption agent
selected by the Board of Directors, as a trust fund, a sum sufficient to redeem
the shares called for redemption, with irrevocable instructions and authority
to such transfer agent or other redemption agent to give or complete the notice
of redemption thereof and to pay to the respective holders of such shares, as
evidenced by a list of such holders certified by an officer of the Corporation,
the Redemption Price upon surrender of their respective share certificates.
Such deposit shall be deemed to constitute full payment of such shares to their
holders; and from and after the date of such deposit, all rights of the holders
of the shares of Series A Preferred Stock to be redeemed, as stockholders of
the Corporation with respect to such shares, except the right to receive the
Redemption Price, without interest, upon the surrender of their respective
certificates, and except the right to convert their shares into Common Stock as
provided in Subsection F, shall cease and terminate. No dividends shall accrue
on any shares of Series A Preferred Stock called for redemption after the date
fixed for redemption (unless the Corporation shall fail to deposit the sum
sufficient to redeem all shares called for redemption). In case holders of any
shares of Series A Preferred Stock called for redemption shall not, within one
year after such deposit, claim the amount deposited for redemption thereof,
such transfer agent or other redemption agent shall, upon demand, pay over to
the Corporation the balance of such amount so deposited. Thereupon, such
transfer agent or other redemption agent shall be relieved of all
responsibility to the holders thereof and the sole right of such holders shall
be as general creditors of the Corporation. To the extent that shares of
Series A Preferred Stock called for redemption are converted into Common Stock
prior to the date fixed for redemption, the amount deposited by the Corporation
to redeem such shares shall immediately be returned to the Corporation. Any
interest accrued on any funds so deposited shall belong to the Corporation, and
shall be paid to it from time to time on demand.
F. Conversion.
(i) On or after the issuance thereof, the holders of shares of
Series A Preferred Stock may, at the option of the holders thereof, upon
surrender of the certificates therefor, convert any or all of their shares of
Series A Preferred Stock into fully paid and nonassessable shares of Common
Stock and such other securities and property as hereafter provided. The
conversion price, which shall be subject to adjustment as provided in Paragraph
(ii), shall be $29.93 ("Conversion Price"). For the purposes of calculating
the number of shares of Common Stock into which the Series A Preferred Stock is
convertible at the Conversion Price, the price per share of Series A Preferred
Stock is $50.
(ii) The Conversion Price shall be subject to adjustment from
time to time as follows:
(a) In case the Corporation shall (i) declare a dividend
or make a distribution on the outstanding shares of its Common Stock in shares
of its Common Stock, (ii) subdivide or reclassify the outstanding shares of its
Common Stock into a greater number of shares, or (iii) combine or reclassify
the outstanding shares of its Common Stock into a smaller number of shares, the
Conversion Price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock issuable
on such date, shall be proportionately adjusted so that the holder of any
shares of Series A Preferred Stock surrendered for conversion after such time
shall be entitled to receive the number and kind of shares of capital stock
which he would have owned or been entitled to receive had such shares of Series
A Preferred Stock been converted immediately prior to such time. Any shares of
Common Stock issuable in payment of a dividend shall be deemed to have been
issued immediately prior to the time of the record date for such dividend for
purposes of calculating the number of outstanding shares of Common Stock under
Subsections (b) and (c) below. Such adjustment shall be made successively
whenever any event specified above shall occur.
(b) In case the Corporation shall fix a record date for
the issuance of rights, options or warrants to all holders of shares of Common
Stock entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase shares of Common Stock (or securities
convertible into shares of Common Stock) at a price per share (or having a
conversion price per share) less than the Closing Price of a share of Common
Stock on such record date, the Conversion Price shall be adjusted immediately
thereafter so that it shall equal the price determined by multiplying the
Conversion Price in effect immediately prior thereto by a fraction, of which
the numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of such Common Stock so offered
(or the aggregate initial conversion price of the convertible securities so
offered) would purchase on that day at the Closing Price, and of which the
denominator shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock offered for
subscription or purchase (or into which the convertible securities so offered
are initially convertible). Shares of Common Stock owned by or held for the
account of the Corporation shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made successively whenever such
record date is fixed. In the event that such rights, options, warrants or
convertible securities are not so issued, the Conversion Price then in effect
shall be readjusted to the conversion price which would then be in effect if
such record date had not been fixed.
(c) In case the Corporation shall fix a record date for
the making of a distribution to all holders of shares of Common Stock (i) of
shares of any class of capital stock other than Common Stock or (ii) of
evidences of its indebtedness or (iii) of assets (excluding cash dividends or
distributions, and dividends or distributions referred to in Subsection (a)
above) or (iv) of rights or warrants (excluding those referred to in Subsection
(b) above), then, in each such case, the Conversion Price in effect immediately
thereafter shall be determined by multiplying the Conversion Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
total number of shares of Common Stock outstanding multiplied by the Closing
Price per share on such record date, less the fair market value (as determined
in good faith by the Board of Directors, whose determination shall be
conclusive, and described in a resolution of the Board of Directors certified
by the Secretary or an Assistant Secretary of the Corporation) of said shares
or evidences of indebtedness or assets or rights or warrants so distributed,
and of which the denominator shall be the total number of shares of Common
Stock outstanding multiplied by such Closing Price per share. Such adjustment
shall be made successively whenever such a record date is fixed. In the event
that such distribution is not so made, the Conversion Price then in effect
shall be readjusted to the Conversion Price which would then be in effect if
such record date had not been fixed.
(d) In any case in which this Paragraph (ii) shall require
that an adjustment shall become effective immediately after a record date for
an event, the Corporation may defer until the occurrence of such event (i)
issuing to the holder of any shares of Series A Preferred Stock converted after
such record date and before the occurrence of such event the additional shares
of Common Stock and other capital stock or securities, if any, issuable upon
such conversion by reason of the adjustment required by such event over and
above the shares of Common Stock and other capital stock or securities, if any,
issuable upon such conversion before giving effect to such adjustment and (ii)
paying to such holder any amount in cash in lieu of a fractional share pursuant
to Paragraph (iii) of this Subsection F; provided, however, that the
Corporation shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's rights to receive such additional shares of
Common Stock and other capital stock or securities, if any, and such cash, upon
the occurrence of the event requiring such adjustment.
(e) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or decrease of at
least 1% of such price then in effect; provided, however, that any adjustment
which by reason of this Subsection (e) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(f) All calculations under this Paragraph (ii) shall be
made to the nearest cent or to the nearest one-hundredth of a share of Common
Stock as the case may be.
(g) Anything in this Paragraph (ii) to the contrary
notwithstanding, the Corporation shall be entitled to make such reductions in
the Conversion Price, in addition to those adjustments expressly required by
this Paragraph (ii), as and to the extent that it in its sole discretion shall
determine to be advisable in order that any consolidation or subdivision of the
Common Stock, issuance wholly for cash of any Common Stock at less than the
Closing Price on the record date, issuance wholly for cash of Common Stock or
securities which by their terms are convertible into or exchangeable for Common
Stock, dividends on Common Stock payable in Common Stock or issuance of rights,
options or warrants referred to hereinabove in Subsection (b), hereafter made
by the Corporation to holders of shares of Common Stock shall not be taxable to
such stockholders.
(h) If as a result of adjustment made pursuant to
Subsection (a), the holders of shares of Series A Preferred Stock thereafter
converted shall become entitled to receive any shares of capital stock of the
Corporation other than Common Stock, thereafter the number of such other shares
so receivable upon conversion of any share of Preferred Stock shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Common Stock contained in
Subsections (a) through (c), inclusive.
(iii) No fractional shares of Common Stock and other capital
stock or securities, if any, or scrip representing fractional shares of Common
Stock and other capital stock or securities, if any, shall be issued upon the
conversion of any share or shares of Series A Preferred Stock. If the
conversion of a share or shares of Series A Preferred Stock results in a
fraction, an amount equal to such fraction multiplied by the Closing Price of
the Common Stock and other capital stock or securities, if any, on the Trading
Day prior to the conversion shall be paid to such holder in cash by the
Corporation. The "Closing Price" for other capital stock or securities shall
be determined in the same manner and with the same effect as the "Closing
Price" for the Common Stock as defined in Subsection E(i).
(iv) The right of the holders of shares of Series A Preferred
Stock to convert their shares shall be exercised by surrendering for such
purpose to the Corporation or its agent, as provided above, certificates
representing shares to be converted, duly endorsed in blank or accompanied by
proper instruments of transfer. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery upon conversion of shares of Common Stock or
other capital stock or securities or property in a name other than that of the
registered holder of the shares of the Series A Preferred Stock being
converted, and the Corporation shall not be required to issue or deliver any
such shares of Common Stock or other capital stock or securities or property
unless and until the person or persons requesting the issuance thereof shall
have paid to the Corporation the amount of any such tax or shall have
established to the satisfaction of the Corporation that such tax has been paid
or that no such tax is due.
(v) A number of shares of the authorized but unissued Common
Stock sufficient to provide for the conversion of the Series A Preferred Stock
outstanding upon the basis herein provided shall at all times be reserved by
the Corporation, free from preemptive rights, for such conversion, subject to
the provisions of the next succeeding paragraph. If the Corporation shall
issue any securities or make any change in its capital structure which would
change the number of shares of Common Stock into which each share of the Series
A Preferred Stock shall be convertible as herein provided, the Corporation
shall at the same time also make proper provision so that thereafter there
shall be a sufficient number of shares of Common Stock authorized and reserved,
free from preemptive rights, for conversion of the outstanding Series A
Preferred Stock on the new basis.
(vi) In case of any consolidation or merger of the Corporation
with any other corporation (other than a wholly-owned subsidiary of the
Corporation or a merger in which the Corporation is the surviving or continuing
corporation and its capital stock is unchanged), or in case of any sale or
transfer of all or substantially all of the assets of the Corporation, or in
the case of any share exchange pursuant to which all of the outstanding shares
of Common Stock are converted into other capital stock or securities or
property, the Corporation shall make appropriate provision or cause appropriate
provision to be made so that the holders of shares of Series A Preferred Stock
then outstanding shall have the right thereafter to convert each such share of
Series A Preferred Stock into the kind and amount of shares of capital stock
and other securities and property receivable upon such consolidation, merger,
sale, transfer or share exchange by a holder of the number of shares of Common
Stock and other capital stock or securities, if any, into which each such share
of Series A Preferred Stock might have been converted immediately prior to such
consolidation, merger, sale, transfer or share exchange. If in connection with
any such consolidation, merger, sale, transfer or share exchange, each holder
of shares of Common Stock is entitled to elect to receive alternative forms of
consideration upon completion of such transaction, the Corporation shall
provide or cause to be provided to each holder of Series A Preferred Stock upon
conversion thereof the shares of capital stock or other securities or property
receivable by a holder of Common Stock who failed to make an election with
respect to the form of consideration receivable in such consolidation, merger,
sale, transfer or share exchange. The Corporation shall not effect any such
transaction unless the provisions of this paragraph have been complied with.
The above provisions shall similarly apply to successive consolidations,
mergers, sales, transfers or share exchanges.
(vii) Upon the surrender of certificates representing shares of
Series A Preferred Stock, the person converting shall be deemed to be the
holder of record at such time of the shares of Common Stock issuable on such
conversion and all rights with respect to the shares of Series A Preferred
Stock surrendered shall forthwith terminate except the right to receive the
shares of Common Stock or other capital stock or securities or property as
herein provided. Except as otherwise provided in Paragraph (ii), no adjustment
in the Conversion Price shall be made at the time of conversion in respect of
distributions or dividends therefore declared and paid or payable on the Common
Stock.
G. Voting Rights.
(i) The holders of shares of Series A Preferred Stock will not
have any voting rights except as set forth below or as otherwise from time to
time required by law. If, on the date used to determine stockholders of record
for any meeting of stockholders of the Corporation at which directors are to be
elected, dividends on the Series A Preferred Stock and on any other class or
series of Parity Dividend Stock shall be in arrears in an amount equal to at
least six quarterly dividends (whether or not consecutive), the number of
members of the Board of Directors shall be increased by two as of the date of
such meeting and the holders of shares of Series A Preferred Stock (voting
separately as a class with the holders of all other affected classes or series
of the Parity Dividend Stock upon which like voting rights have been conferred
and are exercisable) shall be entitled to vote for and elect such two
additional directors of the Board. The right of the holders of Series A
Preferred Stock to vote for such two additional directors shall terminate when
all accrued and unpaid dividends on the Series A Preferred Stock have been
declared and paid or set apart for payment. The term of office of the
directors so elected shall terminate immediately upon the termination of the
right of the holders of shares of Series A Preferred Stock and such Parity
Dividend Stock to vote for such two additional directors. In connection with
such right to vote, each holder of shares of Series A Preferred Stock will have
one vote for each share held.
(ii) Without the consent or affirmative vote of the holders of
at least two-thirds of the outstanding shares of Series A Preferred Stock,
voting separately as a class with all other affected series of capital stock
ranking on a parity either as to dividends or upon liquidation with the Series
A Preferred Stock, the Corporation shall not authorize, create or issue, or
increase the authorized amount of, any class or series of capital stock ranking
prior to the Series A Preferred Stock as to dividends or upon liquidation.
Without the consent or affirmative vote of the holders of at least a majority
of the outstanding shares of Series A Preferred Stock, voting separately as a
class with all other affected series of capital stock ranking on a parity
either as to dividends or upon liquidation with the Series A Preferred Stock,
the Corporation shall not increase the authorized amount of any class or series
of capital stock ranking on a parity either as to dividends or upon liquidation
with the Series A Preferred Stock; provided, however, that no such consent or
vote will be required for the issuance of Preferred Stock ranking on a parity
with such series from the authorized but unissued Preferred Stock. No consent
or vote of the holders of the outstanding shares of Series A Preferred Stock
shall be required to authorize, create or issue, or increase the authorized
amount of, any class or series of capital stock ranking junior to the Series A
Preferred Stock as to dividends and upon liquidation.
(iii) The affirmative vote or consent of the holders of at
least a majority of the outstanding shares of Series A Preferred Stock, voting
separately as a class with all other series of capital stock ranking on a
parity either as to dividends or upon liquidation with the Series A Preferred
Stock, shall be required for any amendment, alteration or repeal, of the
Corporation's Certificate of Incorporation, if the amendment, alteration or
repeal alters or changes the powers, preferences or special rights of the
Series A Preferred Stock and any such series so as to affect them materially
and adversely; provided, however, that in any case in which one or more, but
not all, such series would be adversely affected as to the powers, preferences
or special rights thereof, the affirmative vote of the holders of at least a
majority of the outstanding shares of all such series that would be adversely
affected, voting as a class, shall be required, and the holders of shares of
any series that would not be adversely affected shall not be entitled to vote
thereon.
Section 5. At the effective time of the amendment to Article IV, Section
1 of this Restated Certificate of Incorporation authorizing the Corporation to
issue shares of Common Stock, par value $.01 per share, each share of Common
Stock, par value $5 per share, of the Corporation issued and outstanding or
held in the treasury of the Corporation immediately prior to such effective
time, shall be changed into and reclassified as one share of Common Stock, par
value $.01 per share. To reflect such change and reclassification, each
certificate representing shares of Common Stock, par value $5 per share,
theretofore issued and outstanding or held in the treasury of the Corporation
shall, from and after such effective time, represent a like number of shares of
Common Stock, par value $.01 per share.
ARTICLE V
Section 1. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In addition to
any affirmative vote required by law or this Restated Certificate of
Incorporation, and except as otherwise expressly provided in Section 2 of this
Article V:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary having an aggregate Fair Market
Value of $50,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market Value
of $50,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Interested
Stockholder) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class or equity or
convertible securities of the Corporation or any Subsidiary which is directly
or indirectly owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class (it being understood that for purposes of
this Article V, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article IV of this Restated Certificate of
Incorporation). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that a lesser percentage may be
specified, by law or in any agreement with any national securities exchange or
otherwise.
B. Definition of "Business Combination". The term "Business
Combination" as used in this Article V shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of Paragraph A of
this Section I.
Section 2. When Higher Vote is Not Required. The provisions of Section 1
of this Article V shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provisions of this Restated
Certificate of Incorporation, if all of the conditions specified in either the
following Paragraphs A and B are met:
A. Approval by Disinterested Directors. The Business Combination
shall have been approved by a majority of the Disinterested Directors (as
hereinafter defined).
B. Price and Procedure Requirements. All of the following
conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be at least equal to
the higher of the following:
(a) (if applicable) the highest per share price (including
any brokerage commission, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of Common Stock (or for any shares of
common stock of Burroughs Corporation, a Michigan corporation, the predecessor
to the Corporation) acquired by it (1) within the two-year period immediately
prior to the first public announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the transaction in which it
became an Interested Stockholder, whichever is higher; and
(b) the Fair Market Value per share of Common Stock (or
for any shares of common stock of Burroughs Corporation, a Michigan
corporation, the predecessor of the Corporation) on the Announcement Date or on
the date on which the Interested Stockholder became an Interested Stockholder
(such latter date is referred to in this Article V as the "Determination
Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of shares of any other
class of outstanding Voting Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this paragraph B(ii)
shall be required to be met with respect to every class of outstanding Voting
Stock, whether or not the Interested Stockholder has previously acquired any
shares of a particular class of Voting Stock):
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of such class of Voting Stock
acquired by it (1) within the two-year period immediately prior to the
Announcement Date or (2) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(b) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting Stock are entitled
in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation; and
(c) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the Determination Date, whichever
is higher.
(iii) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has previously paid
for shares of such class of Voting Stock. If the Interested Stockholder has
paid for shares of any class of Voting Stock with varying forms of
consideration, the form of consideration for such class of Voting Stock shall
be either cash or the form used to acquire the largest number of shares of such
class of Voting Stock previously acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (a)
except as approved by a majority of the Disinterested Directors, there shall
have been no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on the outstanding Preferred
Stock; (b) there shall have been (1) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by a majority of the
Disinterested Directors, and (2) an increase in such annual rate of dividends
as necessary to reflect any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate is approved by a majority of
the Disinterested Directors; and (c) such Interested Stockholder shall have not
become the beneficial owner of any additional shares of Voting Stock except as
part of the transaction which results in such Interested Stockholder becoming
an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance or any tax credits
or other tax advantages provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or regulations) shall be mailed
to public stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
Section 3. Certain Definitions. For the purpose of this Article V:
A. A "person" shall mean any individual or firm, corporation,
partnership, limited partnership, joint venture, trust, unincorporated
association or other entity.
B. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more
than 20% of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20% or more of the voting power of
then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
D. For the purpose of determining whether a person is an Interested
Stockholder pursuant to Paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of Paragraph C of this Section 3, but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants
or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on February 24, 1984.
F. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph B of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member of the Board of
Directors of the Corporation (the "Board") who is unaffiliated with the
Interested Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Disinterested Director who is not an affiliate of the Interested Stockholder
and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board.
H. "Fair Market Value" means (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange - Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on the
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation
with respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a share of such
stock as determined by the Board in good faith; and (ii) in the case of
property other than cash or stock, the fair market value of such property on
the date in question as determined by the Board in good faith.
I. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in Paragraphs
B(i) and (ii) of Section 2 of this Article V shall include the shares of Common
Stock and/or the shares of any other class of outstanding Voting Stock retained
by the holders of such shares.
Section 4. Powers of the Board of Directors.
A majority of the directors of the Corporation shall have the power and
duty to determine for the purposes of this Article V, on the basis of
information known to them after reasonable inquiry, (A) whether a person is an
Interested Stockholder, (B) the number of shares of Voting Stock beneficially
owned by any persons, (C) whether a person is an Affiliate or Associate of
another and (D) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $50,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article V shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
ARTICLE VI
BOARD OF DIRECTORS
Section 1. Number. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors which, subject to any
right of the holders of any series of Preferred Stock then outstanding to elect
additional directors under specified circumstances, shall consist of not less
than 10 nor more than 20 persons. The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board of Directors.
Section 2. Terms. The directors other than those who may be elected by
the holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, shall be divided into three classes,
as nearly equal in number as possible, with the term of office of the first
class to expire at the 1985 Annual Meeting of Stockholders, the term of office
of the second class to expire at the 1986 Annual Meeting of Stockholders and
the term of office of the third class to expire at the 1987 Annual Meeting of
Stockholders. At each Annual Meeting of Stockholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding Annual Meeting of Stockholders after their election.
Section 3. Stockholder Nomination of Director Candidates. Advance notice
of stockholder nominations for the election of directors shall be given in the
manner provided in the Bylaws of the Corporation.
Section 4. Newly Created Directorships and Vacancies. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a majority vote of the directors then in office, and
directors so chosen shall hold office for a term expiring at the Annual Meeting
of Stockholders at which the term of the class to which they have been elected
expires. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
Section 5. Removal. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80% of the voting power of
all of the shares of the Corporation entitled to vote generally in the election
of directors, voting together as a single class.
ARTICLE VII
STOCKHOLDER ACTION
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders. Except as otherwise required by law and subject
to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, special
meetings of stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution approved by a majority of the entire Board
of Directors.
ARTICLE VIII
BYLAW AMENDMENTS
The Board of Directors shall have power to make, alter, amend and repeal
the Bylaws of the Corporation (except so far as the Bylaws of the Corporation
adopted by the stockholders shall otherwise provide). Any Bylaws made by the
Directors under the powers conferred hereby may be altered, amended or repealed
by the Directors or by the stockholders. Notwithstanding the foregoing and
anything contained in this Restated Certificate of Incorporation or the Bylaws
to the contrary, Sections 2 and 3 of Article I and Sections 1 through 5 of
Article II of the Bylaws shall not be altered, amended or repealed and no
provision inconsistent therewith shall be adopted without the affirmative vote
of the holders of at least 80% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
ARTICLE IX
AMENDMENTS TO
CERTIFICATE OF INCORPORATION
Notwithstanding any other provisions of the Certificate of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
Bylaws of the Corporation), the affirmative vote of the holders of 80% or more
of the voting power of the shares of the then outstanding voting stock of the
Corporation, voting together as a single class, shall be required to amend or
repeal, or adopt any provisions inconsistent with, Articles V, VI, VII, VIII or
this Article IX of this Restated Certificate of Incorporation.
ARTICLE X
Section 1. Elimination of Certain Liability of Directors. A director of
the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in Paragraph (b) hereof, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under Paragraph (a)
of this Section is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of providing such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
IN WITNESS WHEREOF, said Unisys Corporation has caused this
certificate to be signed by Harold S. Barron, its Senior Vice President,
General Counsel and Secretary, and attested by Ronald C. Anderson, its
Assistant Secretary, this 25th day of July, 1997.
By: /s/ Harold S. Barron
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Harold S. Barron
Senior Vice President, General
Counsel and Secretary
ATTEST:
By: /s/ Ronald C. Anderson
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Ronald C. Anderson
Assistant Secretary