CERTIFICATE OF INCORPORATION OF
CONTINENTAL TERMINAL SERVICES, INC.
FIRST. The name of the corporation is Continental
Terminal Services, Inc.
SECOND. The address of the registered office of the
corporation in the State of Delaware is No. 100 West Tenth Street,
in the City of Wilmington, County of New Castle. The name of the
corporation's registered agent at such address is The Corporation
Trust Company.
THIRD. The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law
of Delaware.
FOURTH. The total number of shares of stock which the
corporation shall have authority to issue is one thousand (1,000),
all of such shares shall be without par value.
FIFTH. The name and mailing address of the incorporator
is Wayne D. Boberg, One First National Plaza, Suite 5000, Chicago,
Illinois 60603.
SIXTH. In furtherance and not in limitation of the
powers conferred by statute, the board of directors is expressly
authorized to make, alter or repeal the by-laws of the corporation.
SEVENTH. Elections of directors need not be by written
ballot unless the by-laws of the corporation shall so provide.
EIGHTH. The books of the corporation may be kept (subject
to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time
by the board of directors or in the by-laws of the corporation.
NINTH. The stockholders are expressly authorized to remove
any director with or without cause at any time in accordance with the
procedures set forth in the by-laws.
THE UNDERSIGNED, being the sole incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, does make this Certificate,
hereby declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly, have hereunto set my hand this
21st day of September, 1979.
Wayne D. Boberg
Wayne D. Boberg
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
CONTINENTAL TERMINAL SERVICES, INC.
The undersigned, being the sole incorporator of Continental Terminal
Services, Inc., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That paragraph First of the Certificate of Incorporation
be and it hereby is amended by deleting said paragraph
and in its place inserting the following: "FIRST. The name of
the corporation is Specialty Terminal Services, Inc."
SECOND: That the corporation has not received any payment for
any of its stock.
THIRD: That the amendment was duly adopted in accordance with
the provisions of Section 241 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this certificate
this first (lst) day of November 1979.
Wayne D. Boberg
Wayne D. Boberg
SECOND CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SPECIALTY TERMINAL SERVICES, INC.
BEFORE RECEIPT OF PAYMENT FOR STOCK The undersigned, being
the sole incorporator of Specialty
Terminal Services, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware, does hereby
certify as follows:
1. The Certificate of Incorporation of the corporation was
amended by a Certificate of Amendment of Certificate of Incorporation
filed with the Secretary of State of Delaware on November 6, 1979.
2. Paragraph First of the Certificate of Incorporation is
hereby amended by deleting said paragraph and in its place
inserting the following:
"FIRST. The name of the corporation is Exide Electronics Group,
Inc."
3. The corporation has not received any payment for any of
its stock.
4. The foregoing amendment has been duly adopted in accordance
with the provisions of Section 241 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this
certificate July 9, 1982.
Wayne D. Boberg
Wayne D. Boberg
THIRD
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
EXIDE ELECTRONICS GROUP, INC.
The undersigned, being the sole incorporator of
Exide Electronics Group, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That Article FOURTH of the Certificate of
Incorporation be and it hereby is amended by deleting said
Article in its entirety and in lieu thereof inserting the
following:
"FOURTH. The aggregate number of shares which the corporation
shall have authority to issue shall be Thirteen Thousand (13,000) of
which Three Thousand (3,000) shares shall be Preferred Stock, without
par value, and of which Ten Thousand (10,000) shares shall be Common
Stock, without par value.
The designations and the powers, preferences and rights of
such classes of stock and the qualifications, limitations or
restrictions thereof are as follows:
1. (a) The holders of Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of funds
legally available therefor, dividends at the rate of One Hundred
Twenty Dollars ($120.00) per share per annum, payable semiannually on
the first days of January and July in each year. Such dividends on the
shares of Preferred Stock shall accrue and be cumulative from the date
of their issue. So long as any shares of Preferred Stock are
outstanding, no dividend or distribution, whether in cash or property,
shall be paid, declared or made on Common Stock and no Common Stock
shall be purchased, redeemed or otherwise acquired for value by the
corporation, unless full cumulative dividends on Preferred Stock for
all past semi-annual dividend periods and for the then current
semi-annual dividend period shall have been declared and paid or set
aside for payment.
(b) In the event of any liquidation, dissolution or winding up
of the corporation, the holders of Preferred Stock shall be entitled
to receive, out of the assets of the corporation available for
distribution to its stockholders, before any distribution of assets
shall be made to the holders of Common Stock, the sum of One Thousand
Dollars ($1,000.00) per share plus an amount equal to full cumulative
dividends thereon, whether or not earned or declared, computed to the
date of final distribution to the holders of Preferred Stock. The
consolidation or merger of this corporation with any other corporation
or corporations shall not, for the purposes of this subparagraph (b),
be deemed a liquidation, dissolution or winding up of this
corporation.
(c)(i) Preferred Stock, or any part thereof, at any time
outstanding may be redeemed by the corporation, at its election
expressed by resolution of the Board of Directors, at any time or from
time to time, at the price of One Thousand Dollars ($1,000.00) per
share, together in each case with full cumulative dividends thereon to
the redemption date. If less than all the outstanding shares of
Preferred Stock are to be redeemed pursuant to this subparagraph
(c)(i), the redemption shall be made on a pro rata basis in such
manner as may be prescribed by the Board of Directors.
(ii) On July 23, 1992, the corporation shall redeem all shares
of Preferred Stock then outstanding at a price of One Thousand Dollars
($1,000.00) per share, together with full cumulative dividends thereon
to the redemption date.
(iii) Notice of every redemption of Preferred Stock shall be
mailed to the holders of record of the shares to be redeemed at their
respective addresses as they shall appear on the stock books of the
corporation at least thirty days and not more than sixty days prior to
the redemption date. If notice of redemption shall have been duly
mailed and if, on or before the redemption date specified in the
notice, the redemption price shall have been set aside by the
corporation, separate and apart from its other funds and deposited in
a bank account of a member bank of the Federal Reserve System having a
net worth as of its most recent balance sheet of at least
$500,000,000, for the pro rata benefit of the holders of the shares so
called for redemption, so as to be and continue to be available
therefor, then, from and after the date of redemption so designated,
notwithstanding that any certificate for shares of Preferred Stock so
called for redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer be deemed
outstanding, the dividends thereon shall cease to accumulate and all
rights with respect to the shares of Preferred Stock so called for
redemption shall forthwith on the redemption date cease and terminate,
except only the right of the holders thereof to receive the redemption
price of the shares so redeemed, including full cumulative dividends
to the redemption date, but without interest.
(d) Except as otherwise provided herein and except as provided
by statute, Preferred Stock shall have no voting rights. In case the
semi-annual dividend on Preferred Stock is not paid in full on any two
semi-annual dividend payment dates (whether consecutive or not), then
at any meeting of the stockholders of the corporation held (or in
connection with any action taken by the stockholders of the
corporation in writing) during the period commencing with such time
and ending with the time when all arrears in dividends on Preferred
Stock shall have been paid and the full dividend on Preferred Stock
for the then current semi-annual dividend period shall have been
declared and paid or set aside for payment, the holders of Preferred
Stock present in person or represented by proxy at said meeting shall
be entitled to one vote per share upon all matters submitted to a vote
of stockholders at said meeting (or submitted to stockholders for
action by written consent).
(e) The holders of shares of Preferred Stock shall have the
right, at their option, to convert all or any part of such shares into
shares of Common Stock of the corporation at any time after January
24, 1983, subject to the following terms and conditions:
(i) The shares of Preferred Stock shall be convertible at the
office of the corporation in Wilmington, Delaware, and at such other
place or places, if any, as the Board of Directors of the corporation
may designate, into fully paid and non-assessable shares of Common
Stock of the Corporation at an initial conversion rate of one (1)
share of Common Stock for each share of Preferred Stock, provided,
however, that such initial conversion rate shall be subject to
adjustment from time to time in certain instances as hereinafter
provided. Any adjustment in the conversion rate shall be applicable to
each authorized share of Preferred Stock whether or not then issued
and outstanding. The corporation shall make no payment or adjustment
on account of any dividends accrued on shares of Preferred Stock
surrendered for conversion or on account of any dividends on Common
Stock issued on conversion. In case of the call for redemption of any
shares of Preferred Stock such right of conversion shall cease and
terminate, as to the shares designated for redemption, at the close of
business on the business day next preceding the date fixed for
redemption unless default shall be made in the payment of the
redemption price.
(ii) In order to exercise the aforesaid conversion privilege,
the holder of Preferred Stock shall surrender the certificate or
certificates therefor at the office of the corporation hereinabove
mentioned or at such other place or places, if any, as the Board of
Directors of the corporation may have designated, and shall give
written notice to the corporation at said office or place that he
elects to convert the same and shall state in writing therein the name
or names (with addresses) in which he wishes the certificate or
certificates for Common Stock to be issued. The corporation will, as
soon as practicable thereafter, issue and deliver at said office or
place to such holder of shares of Preferred Stock, or upon his written
order, a certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion of his Preferred Stock,
together with cash in lieu of any fraction of a share as hereinafter
provided. Shares of Preferred Stock shall be deemed to have been
converted as of the close of business on the date of the surrender of
such shares for conversion as provided above, and the person or
persons entitled to receive Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of
such Common Stock as of the close of business on such date.
(iii) The conversion rate shall be subject to adjustment
as follows:
(A) In case the corporation shall at any time subdivide its
outstanding shares of Common Stock into a greater number of shares,
the conversion rate in effect immediately prior to such subdivision
shall be proportionately increased, and, conversely, in case the
outstanding shares of Common Stock of the corporation shall be
combined into a smaller number of shares, the conversion rate in
effect immediately prior to such combination shall be proportionately
reduced.
(B) In case the corporation shall at any time issue any shares
of Common Stock as a dividend, the conversion rate in effect
immediately prior to such dividend shall be proportionately increased.
(C) In case of, and as a condition to any capital
reorganization of, or any reclassification of the capital stock of,
the corporation (other than a subdivision or combination of shares of
Common Stock into a greater or lesser number of shares (whether with
or without par value) or a change in the par value of Common Stock, or
from par value to no par value, or from no par value to par value) or
in case of, and as condition to, the consolidation or merger of the
corporation with or into another corporation (other than a merger in
which the corporation is the continuing corporation and which does not
result in any reclassification of outstanding shares of Common Stock),
each share of Preferred Stock shall be convertible into the number of
shares of stock or other securities or property receivable upon such
reorganization, reclassification, consolidation or merger by a holder
of the number of shares of Common Stock of the corporation into which
such share of Preferred Stock was convertible immediately prior to
such reorganization, reclassification, consolidation or merger; and,
in any such case, appropriate adjustment (as determined by the Board
of Directors) shall be made in the application of the provisions
herein set forth with respect to the rights and interests thereafter
of the holders of Preferred Stock to the end that the provisions set
forth herein (including provisions with respect to changes in the
conversion rate) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other
securities or property thereafter deliverable upon the conversion of
the shares of Preferred Stock.
(iv) No fractional shares of Common Stock shall be issued upon
conversion, but in lieu thereof the corporation shall make payment in
cash figured on the basis of the fair market value of a share of
Common Stock as of the date of conversion (as determined by the Board
of Directors).
(f) In the event that the corporation offers to the holders of
shares of its Common Stock the right to purchase any securities on a
basis proportionate to their holdings of Common Stock, the holders of
shares of Preferred Stock shall be entitled to participate in such
rights offering as if they had converted into Common Stock their
shares of Preferred Stock immediately prior to the record date for
said rights offering.
(g) The term "full cumulative dividends" whenever used
herein with reference to any share of Preferred Stock shall be deemed
to mean an amount computed at the annual dividend rate from the date on
which dividends on such shares became cumulative to and including the
date to which such dividends are to be accrued less the aggregate
amount of all dividends theretofore paid thereon.
(h) The corporation shall at all times reserve and keep
available out of its authorized Common Stock, for the purpose of issue
upon conversion of Preferred Stock as herein provided, such number of
shares of Common Stock as shall then be issuable upon the conversion of
all outstanding shares of Preferred Stock. All shares of Common Stock
which shall be so issuable shall, when so issued upon any such
conversion, be duly and validly issued and fully-paid and
non-assessable.
2. (a) After the requirements with respect to preferential
dividends upon Preferred Stock shall have been met and after the
corporation shall have complied with all requirements, if any, with
respect to the setting aside of sums for redemption of any shares of
Preferred Stock, then and not otherwise, the holders of Common Stock
shall be entitled to receive such dividends as may be declared from
time to time by the Board of Directors.
(b) After distribution in full of the preferential amounts
to be distributed to the holders of Preferred Stock then outstanding in
the event of the liquidation, dissolution or winding up of the
corporation, the holders of 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 of
Common Stock held by them respectively.
(c) Each holder of Common Stock shall have one vote in
respect of each share of such stock held by him."
SECOND: That the corporation has not received any
payment for any of its stock.
THIRD: That the amendment was duly adopted in
accordance with the provisions of Section 241 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this
certificate this 21st day of July 1982.
Wayne D. Boberg
Wayne D. Boberg
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
EXIDE ELECTRONICS GROUP, INC.
Pursuant to Section 242 of the
General Corporation Law of Delaware
We, the undersigned, Lance L. Knox and M. Finley Maxson, the Vice Chairman
of the Board and the Assistant Secretary, respectively, of Exide
Electronics Group, Inc. (the "Company"), a corporation organized and
existing under and by virtue of the provisions of the General Corporation
Law of the State of Delaware, DO HEREBY CERTIFY:
FIRST: That Article FOURTH of the Certificate of Incorporation be
and it hereby is amended by deleting said Article in its entirety and in
lieu thereof inserting the following:
"FOURTH. The total number of shares of stock which the Company shall
have the authority to issue is five million four hundred forty-one
thousand five hundred eighty (5,441,580) shares divided into one
million ninety thousand (1,090,000) shares of Series A Preferred
Stock, par value $10.00 per share, one thousand five hundred eighty
(1,580) shares of Series B Preferred Stock, par value $1,000.00 per
share, and four million three hundred fifty thousand (4,350,000)
shares of Common Stock, par value $.01 per share. Each share of
Common Stock, without par value, issued and outstanding at the time
the Certificate of Amendment containing this paragraph becomes
effective, shall automatically be changed into two hundred
thirty-five (235) shares of Common Stock, par value $.01 per share.
The designations and the powers, preferences and rights of
such classes of stock and the qualifications, limitations or
restrictions thereof are as follows:
I. Series A Preferred Stock
1. Dividends. The holders of shares of Series A Preferred
Stock shall be entitled to receive regular cash dividends, if, when
and as declared by the Board of Directors, at the annual rate per
share of 8% Of the original Series A Conversion Price as set forth
in subparagraph 4(c) hereof, as adjusted pursuant to subparagraph
5(a) hereof and exclusive of any adjustment pursuant to subparagraph
4(f) hereof. Dividends shall be non-cumulative. The holders of
shares Of Series A Preferred Stock shall be entitled to no dividends
with respect to such Series A Preferred Stock other than as
aforesaid. Declared but unpaid dividends shall be accrued but shall
not bear interest. If the funds legally available for the payment Of
such dividends are insufficient to pay in full the dividends payable
on all outstanding shares of Series A Preferred Stock, the total
available funds shall be paid in partial dividends to the holders of
the outstanding shares of Series A Preferred Stock ratably in
proportion to the full accrued dividends to which they are entitled.
No dividend or distribution in cash or other property (other than a
stock dividend payable solely in shares of Common Stock) on any
class of Common Stock of the Company shall be declared or paid or
set apart for payment in any fiscal year unless a dividend in the
amount set forth above per share on the Series A Preferred Stock
shall have been paid in full in such fiscal year.
2. Preference on Liquidation, etc. In the event of any
voluntary or involuntary, liquidation, distribution of assets (other
than the payment of dividends), dissolution or winding-up of the
Company, before any payment or distribution of the assets of the
Company (whether capital or surplus) shall be made to or set apart
for the holders of shares of Common Stock, the holders of shares of
Series A Preferred Stock shall be entitled to receive payment of
$10.00 per share held by them plus any declared but unpaid dividends
thereon to the date of final distribution to such holders, but they
shall be entitled to no further payment with respect to such Series
A Preferred Stock. If, upon any
liquidation,distribution of assets, dissolution or winding-up of the Company,
the assets of the Company, or proceeds thereof, distributable among
the holders of shares of Series A Preferred Stock shall be
insufficient to pay in full the respective preferential amounts on
shares Of Series A Preferred Stock, then such assets, or the
proceeds thereof, shall be distributed among such holders ratably in
accordance with the respective amounts which would be payable on
such shares if all amounts payable thereon were paid in full. For
the purposes of this paragraph 2, the voluntary sale, lease or
transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the assets of the
Company to, or a consolidation or merger of the Company with, one or
more Persons shall not be deemed to be a liquidation, distribution
of assets, dissolution or winding-up, voluntary or involuntary;
provided, that any holder of shares of Series A Preferred Stock
shall have the right to treat any sale, lease or transfer of 50% or
more of the assets of the Company or any subsidiary or any
consolidation or merger as a liquidation under this paragraph 2 and
be entitled to a preference to the extent set forth above with
respect to the shares of Series A Preferred Stock held by such
holder.
3. Voting
(a) General. In addition to the special voting rights
provided below and by applicable law, the holders of shares of
Series A Preferred Stock shall be entitled to vote upon all matters
upon which holders of the Common Stock have the right to vote, and
each share of Series A Preferred Stock shall be entitled to the
number of votes equal to the largest number of full shares of Common
Stock into which such shares of Series A Preferred Stock could be
converted pursuant to the applicable provisions of paragraph 4
hereof, at the record date for the determination of the stockholders
entitled to vote on such matters, or, if no such record date is
established, at the date such vote is taken or any written consent
of stockholders is solicited, such votes to be counted together with
all other shares of capital stock having general voting powers and
not separately as a class. In all cases where the holders of shares
of Series A Preferred Stock have the right to vote separately as a
class, such holders shall be entitled to one vote for each such
share held by them respectively.
(b) Special Class Vote. Without the consent of the
holders of at least:
(i) 66 2/3% of the aggregate number of shares of Series
A Preferred Stock then outstanding, given in writing or by vote at a
meeting of stockholders called for such purpose, the Company will not (A)
increase the authorized amount of Series A Preferred Stock or (B) create
or increase the authorized amount of any other class of stock nor
reclassify the rights of any class of capital stock or issue any debt
convertible into a class of stock entitled to a preference prior to or on
parity with Series A Preferred Stock upon any dividend or distribution or
any liquidation, distribution Of assets, dissolution or winding-up of the
Company; and
(ii) 66 2/3% of the aggregate number of shares of Series
A Preferred Stock then outstanding, given in writing or by vote at a
meeting of stockholders called for such purpose, the Certificate of
Incorporation will not be amended, altered or repealed so as to adversely
affect, either directly or indirectly, the preferences, rights or powers
of the Series A Preferred Stock nor will the Company merge or consolidate
with or into any other Person, or sell, lease or transfer 50% or more of
its assets or business to another Person, except that the Company may
merge with another Person if the Company is the entity surviving such
merger, there is no change of control in the management of the Company and
such merger does not adversely affect, either directly or indirectly, the
preferences, rights or powers of the Series A Preferred Stock.
4. Conversion Rights. The Series A Preferred Stock
shall be convertible into Common Stock as follows:
(a) Optional Conversion.
(i) Subject to and upon compliance with the provisions
of this paragraph 4, the holder of any shares of Series A
Preferred Stock shall have the right at such holder's option,
at any time or from time to time, to convert any of such
shares of Series A Preferred Stock into fully paid and
nonassessable shares of Common Stock at the Series A
Conversion Price (as hereinafter defined) in effect on the
Series A Conversion Date (as hereinafter defined) upon the
terms hereinafter set forth.
(ii) Subject to and upon compliance with the provisions
of this paragraph 4, if the Company closes an underwritten public
offering with respect to the Common Stock that meets all of the
requirements set forth in subparagraph 4(b) below other than the
offering price per share requirement, and at any time subsequent
to the closing of such offering, the last reported closing price
(determined in the manner in which closing price is determined
pursuant to the last sentence of subparagraph 4(g) hereof without
respect to the proviso contained therein) of the Company's Common
Stock for 60 consecutive trading days exceeds 150% of the Series
A Conversion Price (as defined below) then in effect, the Company
shall have the right
to convert the total number of shares of Series A Preferred
Stock outstanding at such time, in whole, into fully paid and
nonassessable shares of Common Stock at the Series A Conversion
Price (as defined below) in effect on such 60th trading day. The
Company shall provide written notice to all holders of Series A
Preferred Stock of its election to convert the Series A
Preferred Stock pursuant to this subparagraph 4(a)(ii) within 15
days of such 60th trading day. Such notice shall also state the
applicable Series A Conversion Price.
(b) Automatic Conversion. Each outstanding share
of Series A Preferred Stock shall automatically be converted,
without any further act of the Company or its stockholders,
into fully paid and nonassessable shares of Common Stock
pursuant to the formula as set forth in subparagraph 4(c) upon
the closing of an underwritten public offering underwritten by
an investment banking firm of nationally recognized standing
pursuant to an effective registration under the Securities Act
of 1933, as amended, covering the offering and sale of the
Company's Common Stock in which the aggregate gross offering
proceeds equal or exceed $10,000,000, the price per share Of
which equals or exceeds 150% Of the Series A Conversion Price
in effect immediately prior to the closing of the sale of such
shares, and there are at least 300 record or beneficial
holders of Common Stock of the Company immediately subsequent
to the closing of the sale of such shares and, in the event
such closing occurs between September 18, 1985 and March 30,
1987, inclusive, the gross price of the Company's Common Stock
immediately after such closing is at least equal to $16.57 per
share (as appropriately adjusted for any stock dividend, stock
split, recapitalization or combination Of shares).
(c) Series A Conversion Price. Each share of
Series A Preferred Stock shall be converted into the number of
shares of Common Stock as is determined by dividing (x) $10.00
by (y) the Series A Conversion Price in effect on the Series A
Conversion Date. The Series A Conversion Price at which shares
of Common Stock shall initially be issuable upon conversion of
the shares of Series A Preferred Stock shall be $10.00. The
Series A Conversion Price shall be subject to adjustment as
set forth in subparagraph 4(f) and paragraph 5. No payment or
adjustment shall be made for any dividends on the Common Stock
issuable upon such conversion.
(d) Mechanics Of Conversion. Upon the occurrence
Of the events specified in subparagraph 4(b), the outstanding
shares Of Series A Preferred Stock shall be converted
automatically without any further action by the holders of
such shares and whether or not the certificates representing
such shares are surrendered to the Company or its transfer
agent: provided that the Company shall not be obligated to
issue to any such holder certificates evidencing the shares of
Common Stock issuable upon such conversion unless certificates
evidencing the shares of Series A Preferred Stock are
delivered to the Company or any transfer agent of the
Company. The holder of any shares of Series A Preferred Stock may
exercise the conversion right specified in subparagraph 4(a) as to
any part thereof by surrendering to the Company or any transfer agent
of the Company the certificate or certificates for the shares to be
converted, accompanied by written notice stating that the holder
elects to convert all or a specified portion of the shares
represented thereby. Conversion of the Series A Preferred Stock shall
be deemed to have been effected on the date on which the event
specified with respect to such Series A Preferred Stock in
subparagraphs 4(a)(ii) and 4(b) shall have occurred or on the date
when delivery of notice of an election to convert and certificates
for shares is made, as the case may be, and such date is referred to
herein with respect to the Series A Preferred Stock as the "Series A
Conversion Date". Subject to the provisions of subparagraph
4(f)(vii), as promptly as practicable thereafter (and after surrender
of the certificate or certificates representing shares of Series A
Preferred Stock to the Company or any transfer agent of the Company
in the case of conversions pursuant to subparagraph 4(b)) the Company
shall issue and deliver to or upon the written order of such holder a
certificate or certificates for the number of full shares of Common
Stock to which such holder is entitled and a check or cash with
respect to any fractional interest in a share of Common Stock as
provided in subparagraph 4(e) and any dividends on the Series A
Preferred Stock which such holder is entitled to receive, but has not
yet received. Subject to the provisions of subparagraph 4(f)(vii),
the Person in whose name the certificate or certificates for Common
Stock are to be issued shall be deemed to have become a holder of
record of such Common Stock on the applicable Series A Conversion
Date. Upon conversion of only a portion of the number of shares
covered by a certificate representing shares of Series A Preferred
Stock surrendered for conversion (in the case of conversion pursuant
to subparagraph 4(a)), the Company shall issue and deliver to or upon
the written order of the holder of the certificate so surrendered for
conversion, at the expense of the Company, a new certificate covering
the number of shares of Series A Preferred Stock representing the
unconverted portion of the certificate so surrendered.
(e) Fractional Shares. No fractional shares of Common Stock or
scrip shall be issued upon conversion
of shares of Series A Preferred Stock. If more than one share of Series
A Preferred Stock shall be surrendered for conversion at any one time
by the same holder, the number of full shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate
number of shares of Series A Preferred Stock so surrendered. Instead of
any fractional shares of Common Stock which would otherwise be issuable
upon conversion of any shares of Series A Preferred Stock, the Company
shall pay a cash adjustment in respect of such fractional interest in
an amount equal to that fractional interest of the then Current Market
Price.
(f) Conversion Price Adjustments for the Series A Preferred
Stock. The Conversion Price for the Series A Preferred Stock shall be
subject to adjustment from time to time as follows:
(i) (A) Common Stock Issued Prior to March 31, 1987 at a Price
Less Than the Series A Conversion Price and Equal to or Greater Than
76.60% of the Initial Series A Conversion Price. If the Company shall
issue Common Stock other than Excluded Stock for a consideration per
share less than the initial Series A Conversion Price as set forth in
subparagraph 4(c) above (as adjusted pursuant to subparagraphs 4(f)(ii)
through 4(f)(v) below) (for example, $10.00 on September 20, 1985) and
equal to or greater than 76.60% of the initial Series A Conversion
Price as set forth in subparagraph 4(c) above (as adjusted pursuant to
subparagraphs 4(f)(ii) through 4(f)(v) below) (for example $7.66 on
September 20, 1985), the Series A Conversion Price in effect
immediately prior to such issuance shall be immediately reduced to a
price per share equal to the consideration per share received by the
Company.
(B) Common Stock Issued Prior to March 31, 1987 at a Price
Below 76.60% of the Initial Series A Conversion Price. If the Company
shall issue any Common Stock other than Excluded Stock without
consideration or for a consideration less than 76.60% of the initial
Series A Conversion Price as set forth in subparagraph 4(c) above (as
adjusted pursuant to subparagraphs 4(f)(ii) through
4(f)(v) below), then the Series A Conversion Price in effect
immediately prior to such issuance shall immediately be reduced to the
price determined in the following manner: (x) the Series A Conversion
Price in effect immediately prior to such issuance shall be reduced to
76.60% of the initial Series A Conversion Price as set forth in
subparagraph 4(c) above (as adjusted pursuant to subparagraphs 4(f)(ii)
through 4(f)(v) below), and (y) the Series A Conversion Price determined
in (x) above shall immediately be further reduced pursuant to the formula
set forth in subparagraph 4(f)(i)(C) below.
(C) Common Stock Issued at Less Than the Series
A Conversion Price On or After March 31 1987. If the
Company shall issue any Common Stock other than
Excluded Stock without consideration or for a
consideration per share less than the Series A
Conversion Price in effect immediately prior to such
issuance, the Series A Conversion Price in effect
immediately prior to each such issuance shall
immediately (except as provided below) be reduced to
the price determined by dividing (1) an amount equal
to the sum of (A) the number of shares of Common Stock
outstanding immediately prior to such issuance plus
the number of shares of Common Stock then issuable
upon conversion of shares of Series A Preferred Stock,
multiplied by the Series A Conversion Price in effect
immediately prior to such issuance and (B) the
consideration, if any, received by the Company upon
such issuance, by (2) the total number of shares of
Common Stock outstanding immediately after such
issuance plus the number of shares of Common Stock
then issuable upon conversion of shares of Series A
Preferred Stock.
For the purposes of any adjustment of the Series A Conversion Price
pursuant to clause (i) the following provisions shall be applicable:
(A) Cash. In the case of the issuance of Common
Stock for cash, the amount of the consideration
received by the Company shall be
deemed to be the amount of the cash proceeds received by the Company for
such Common Stock before deducting therefrom any reasonable discounts,
commissions, taxes or other expenses allowed, paid or incurred by the
Company for any underwriting or otherwise in connection with the
issuance and sale thereof.
(B) Consideration Other Than Cash. In the case
of the issuance of Common Stock (otherwise than upon
the conversion of shares of capital stock or other
securities of the Company) for a consideration in whole
or in part other than cash, including securities
acquired in exchange therefor (other than securities by
their terms so exchangeable), the consideration other
than cash shall be deemed to be the fair value thereof
as determined by the Board Of Directors, irrespective
of any accounting treatment; provided that such fair
value as determined by the Board of Directors shall not
exceed the aggregate Current Market Price of the shares
of Common Stock being issued as of the date the Board
of Directors authorizes the issuance of such shares.
(C) Options and Convertible Securities. In the
case of the issuance of (i) options, warrants or other
rights to purchase or acquire Common Stock (whether or
not at the time exercisable), (ii) securities by their
terms convertible into or exchangeable for Common Stock
(whether or not at the time so convertible or
exercisable) or (iii) options, warrants or rights to
purchase such convertible or exchangeable securities
(whether or not at the time exercisable) (other than
the Series A Preferred Stock):
(1) the aggregate maximum number of shares of
Common Stock deliverable upon exercise of such options,
warrants or other rights to purchase or acquire Common
Stock shall be deemed to have been issued at the time
such options, warrants or rights were issued and for a
consideration equal to the consideration (determined in
the manner provided in
subclauses (A) and (B) above), if any, received by
the Company upon the issuance of such options,
warrants or rights plus the minimum purchase price
provided in such options, warrants or rights for
the Common Stock covered thereby;
(2) the aggregate maximum number of shares
of Common Stock deliverable upon conversion of or
in exchange for any such convertible or
exchangeable securities, or upon the exercise of
options, warrants or other rights to purchase or
acquire such convertible or exchangeable
securities and the subsequent conversion or
exchange thereof, shall be deemed to have been
issued at the time such securities were issued or
such options, warrants or rights were issued and
for a consideration equal to the consideration, if
any, received by the Company for any such
securities and related options, warrants or rights
(excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum
additional consideration, if any, to be received
by the Company upon the conversion or exchange of
such securities and the exercise of any related
options, warrants or rights (the consideration in
each case to be determined in the manner provided
in subclauses (A) and (B) above);
(3) on any change in the number of shares
of Common Stock deliverable upon exercise of any
such options, warrants or rights or conversion of
or exchange for such convertible or exchangeable
securities or any change in the consideration to
be received by the Company upon such exercise,
conversion or exchange, including, but not limited
to, a change resulting from the antidilution
provisions thereof, the Series A Conversion Price
as then in effect shall forthwith be readjusted to
such Series A Conversion Price as would have been
obtained had an adjustment been made upon
the issuance of such options, warrants or rights not
exercised prior to such change, or securities not converted or exchanged
prior to such change, upon the basis of such change;
(4) on the expiration or cancellation of any such
options, warrants or rights, or the termination of the right to convert or
exchange such convertible or exchangeable securities, if the Series A
Conversion Price shall have been adjusted upon the issuance thereof, such
Series A Conversion Price shall forthwith be readjusted to such Series A
Conversion Price as would have been obtained had an adjustment been made
upon the issuance of such options, warrants, rights or securities on the
basis of the issuance of only the number of shares of Common Stock
actually issued upon the exercise of such options, warrants or rights, or
upon the conversion or exchange of such securities; and
(5) if the Series A Conversion Price shall have been
adjusted upon the issuance of any such options, warrants, rights or
convertible or exchangeable securities, no further adjustment of the
Series A Conversion Price shall be made for the actual issuance of Common
Stock upon the exercise thereof;
provided, however, that no increase in the Series A
Conversion Price shall be made pursuant to subclauses (1), (2) or (3) of
this subclause (C).
(ii) Excluded Stock. "Excluded Stock" shall mean shares
of Common Stock issued or reserved for issuance by the Company (A) as a
stock dividend payable in shares of Common Stock, (B) upon any subdivision
or split-up of the outstanding shares of Common Stock, (C) upon conversion
of shares of Series A Preferred Stock or upon adjustment of the Series A
Conversion Price pursuant to paragraph 5, (D) pursuant to sales of Common
Stock or stock options permitted under Section 6.03 of
the Purchase Agreement, and (E) pursuant to Paragraphs
3(b) and 4(a) of the Inco Agreement.
(iii) Stock Dividends.
If the number of shares of Common Stock outstanding at
any time after the date of issuance of the Series A
Preferred Stock is increased by a stock dividend payable
in shares of Common Stock or by a subdivision or
split-up of shares of Common Stock, then immediately
after the record date fixed for the determination of
holders of Common Stock entitled to receive such stock
dividend or the effective date of such subdivision or
split-up, as the case may be, the Series A Conversion
Price shall be appropriately reduced so that the holder
of any shares of Series A Preferred Stock thereafter
converted shall be entitled to receive the number of
shares of Common Stock of the Company which he would
have owned immediately following such action had such
shares of Series A Preferred Stock been converted
immediately prior thereto.
(iv) Combination of Stock. If the number of shares
of Common Stock outstanding at any time after the date
of issuance of the Series A Preferred Stock is decreased
by a combination of the outstanding shares of Common
Stock, then, immediately after the effective date of
such combination, the Series A Conversion Price shall be
appropriately increased so that the holder of any shares
of Series A Preferred Stock thereafter converted shall
be entitled to receive the number of shares of Common
Stock of the Company which he would have owned
immediately following such action had such shares of
Series A Preferred Stock been converted immediately
prior thereto.
(v) Reorganizations, etc. In case of any capital
reorganization of the Company, or of any
reclassification of the Common Stock, or in case of the
consolidation of the Company with or the merger of the
Company with or into any other Person or of the sale,
lease or other transfer of all or substantially all of
the assets of the Company to any other Person, each
share of Series A Preferred Stock shall after such
capital reorganization, reclassification, consolidation,
merger, sale, lease or other transfer be convertible
into the number of shares of stock or other securities
or property to which the Common Stock issuable (at the
time of such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer)
upon conversion of such share of Series A Preferred
Stock would have been entitled upon such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer; and in any such case, if
necessary, the provisions set forth herein with respect
to the rights and interests thereafter of the holders of
the shares of Series A Preferred Stock shall be
appropriately adjusted so as to be applicable, as nearly
as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the
conversion of the shares of Series A Preferred Stock.
The subdivision or combination of shares of Common Stock
issuable upon conversion of shares of Series A Preferred
Stock at any time outstanding into a greater or lesser
number of shares of Common Stock (whether with or
without par value) shall not be deemed to be a
reclassification of the Common Stock of the Company for
the purposes of this clause.
(vi) Rounding of Calculations: Minimum Adjustment.
All calculations under this subparagraph (f) shall be
made to the nearest cent or to the nearest one hundredth
(l/l00th) of a share, as the case may be. Any provision
of this paragraph 4 to the contrary notwithstanding, no
adjustment in the Series A Conversion Price shall be
made if the amount of such adjustment would be less than
$0.01, but any such amount shall be carried forward and
an adjustment with respect thereto shall be made at the
time of and together with any subsequent adjustment
which, together with such amount and any other amount or
amounts so carried forward, shall aggregate $0.01 or
more. of the assets of the Company to any other Person,
each share of Series A Preferred Stock shall after such
capital reorganization, reclassification, consolidation,
merger, sale, lease or other transfer be convertible
into the number of shares of stock or other securities
or property to which the Common Stock issuable (at the
time of such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer)
upon conversion of such share of Series A Preferred
Stock would have been entitled upon such capital
reorganization, reclassification, consolidation, merger,
sale, lease or other transfer; and in any such case, if
necessary, the provisions set forth herein with respect
to the rights and interest thereafter of the holders of
the shares of Series A Preferred Stock shall be
appropriately adjusted so as to be applicable, as nearly
as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the
conversion of the shares of Series A Preferred Stock.
The subdivision or combination of shares of Common Stock
issuable upon conversion of shares of Series A Preferred
Stock at any time outstanding into a greater or lesser
number of shares of Common Stock (whether with or
without par value) shall not be deemed to be a
reclassification of the Common Stock of the Company for
the purposes of this clause (v).
(vii) Timing of Issuance of Additional Common Stock Upon
Certain Adjustments. In any case in which the provisions of
this subparagraph (f) shall require that an adjustment shall
become effective immediately after a record date for an
event, the Company may defer until the occurrence of such
event (A) issuing to the holder of any share of Series A
Preferred Stock converted after such record date and before
the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the
adjustment required by such event over and above the shares
of Common Stock issuable upon such conversion before giving
effect to such adjustment and (B) paying to such holder any
amount of cash in lieu of a fractional share Of Common Stock
pursuant to subparagraph (e) of this paragraph 4; provided
that the Company upon request shall deliver to such holder a
due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares, and such
cash, upon the occurrence of the event requiring such
adjustment.
(g) Current Market Price. The Current Market
Price at any date shall mean the price per share of Common
Stock on such date determined by the Board of Directors as
provided below. The Current Market Price shall be the average
of the daily closing prices per share of Common Stock for 30
consecutive business days ending no more than 5 business days
before the day in question (as adjusted for any stock
dividend, split, combination or reclassification that took
effect during such 30 business day period). The closing price
for each day shall be the last reported sales price regular
way or, in case no such reported sales take place on such
day, the average of the last reported bid and asked prices
regular way, in either case on the principal national
securities exchange on which the Common Stock is listed or
admitted to trading, or if not listed or admitted to trading
on any national securities exchange, the average of the
highest bid and the lowest asked prices quoted on the
National Association of Securities Dealers Automated
Quotation System; provided that if the Common Stock is not
traded in such manner that the quotations referred to above
are available for the
period required hereunder, Current Market Price per share of
Common Stock shall be deemed to be the higher of (i) book
value or (ii) fair value as determined by an investment
banking firm of nationally recognized standing selected by
the unanimous vote of the Board of Directors, irrespective of
any accounting treatment.
(h) Statement Regarding Adjustments. Whenever
the Series A Conversion Price shall be adjusted as provided
in subparagraph 4(f) and in paragraph 5, the Company shall
forthwith file, at the office of any transfer agent for the
Series A Preferred Stock and at the principal office of the
Company, a statement showing in detail the facts requiring
such adjustment and the Series A Conversion Price that shall
be in effect after such adjustment, and the Company shall
also cause a copy of such statement to be sent by mail, first
class postage prepaid, to each holder of shares of Series A
Preferred Stock at its address appearing on the Company's
records. Each such statement shall be signed by the Company's
independent public accountants. Where appropriate, such copy
may be given in advance and may be included as part of a
notice required to be mailed under the provisions of
subparagraph 4(i).
(i) Notice to Holders. In the event the Company
shall propose to take any action of the type described in
clause (i) (but only if the action of the type described in
clause (i) would result in an adjustment in the Series A
Conversion Price), (iii), (iv) or (v) of subparagraph 4(f),
the Company shall give notice to each holder of shares of
Series A Preferred Stock in the manner set forth in
subparagraph 4(h), which notice shall specify the record
date, if any, with respect to any such action and the
approximate date on which such action is to take place. Such
notice shall also set forth such facts with respect thereto
as shall be reasonably necessary to indicate the effect of
such action (to the extent such effect may be known at the
date of such notice) on the Series A Conversion Price and the
number, kind or class of shares or other securities or
property which shall be deliverable or purchasable upon the
occurrence of such action or deliverable upon conversion of
shares of Series A Preferred Stock. In the case of any action
which would require the fixing of a record date, such notice
shall be given at least 15 days prior to the date so fixed,
and in case of all other action, such notice shall be given
at least 20 days prior to the taking of such
proposed action. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of any such
action, or the rights of holders of Series A Preferred Stock
with respect to such action.
(j) Treasury Stock. For the purposes of this
paragraph 4, the sale or other disposition of any Common Stock
of the Company theretofore held in its treasury shall be deemed
to be an issuance thereof.
(k) Costs. The Company shall pay all documentary,
stamp, transfer or other transactional taxes attributable to
the issuance or delivery of shares of Common Stock of the
Company upon conversion of any shares of Series A Preferred
Stock provided that the Company shall not be required to pay
any taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificate for
such shares in a name other than that of the holder of the
share of Series A Preferred Stock in respect of which such
shares are being issued.
(l) Reservation of Shares. The Company shall
reserve at all times so long as any shares of Series A
Preferred Stock remain outstanding, free from preemptive
rights, out of its treasury stock or its authorized but
unissued shares of Common Stock, or both, solely for the
purpose of effecting the conversion of the shares of Series A
Preferred Stock, sufficient shares of Common Stock to provide
for the conversion of all outstanding shares of Series A
Preferred Stock.
(m) Approvals. If any shares of Common Stock to be
reserved for the purpose of conversion of shares of Series A
Preferred Stock require registration with or approval of any
governmental authority under any Federal or state law before
such shares may be validly issued or delivered upon conversion,
then the Company will in good faith and as expeditiously as
possible endeavor to secure such registration or approval, as
the case may be. If, and so long as, any Common Stock into
which the shares of Series A Preferred Stock are then
convertible is listed on any national securities exchange, the
Company will, if permitted by the rules of such exchange, list
and keep listed on such exchange, upon official notice of
issuance, all shares of such Common Stock issuable upon
conversion.
(n) Valid Issuance. All shares of Common Stock
which may be issued upon conversion of the shares of Series A
Preferred Stock will upon issuance by the Company be duly and
validly issued, fully paid and nonassessable and free from
all taxes, liens and charges with respect to the issuance
thereof and the Company shall take no action which will cause
a contrary result (including without limitation, any action
which would cause the Series A Conversion Price to be less
than the par value, if any, of the Common Stock).
(o) Certain Dividends and Distributions. In the
event the Company shall declare a cash dividend or other
distribution upon its Common Stock payable otherwise than out
of retained earnings or net profits or shall distribute to
holders of its Common Stock shares of its capital stock
(other than Common Stock), stock or other securities of other
Persons, evidences of indebtedness issued by the Company or
others, other assets (other than cash) or any options,
warrants or other rights to purchase any of the foregoing,
then each holder of the Series A Preferred Stock then
outstanding shall, upon the exercise Of his right to convert
after the record date fixed for the determination of the
holders of Common Stock of the Company entitled to receive
such dividend or distribution (or if none is fixed, after the
date such dividend or distribution is made), receive (in
addition to the shares of Common Stock deliverable upon such
conversion), the dividend or distribution (or, at the option
of the Company, cash in an amount equal to the fair value
thereof at the time of such dividend or distribution as
determined by the Board of Directors) which would have been
paid or distributed to such holder if he had converted
immediately prior to such record date (or if none, the date
of such dividend or distribution).
5. Additional Series A Conversion Price Adjustment.
(a) The Series A Conversion Price in effect
immediately prior to the adjustment provided for in this
paragraph 5 shall be subject to adjustment according to the
table below based upon the Company's earnings before taxes,
interest expense and extraordinary items ("EBIT") for the
fiscal year ending September 30, 1986. EBIT shall be as
presented in the consolidated financial statements of the
Company for such fiscal year, audited by Ernst & Whinney, and
shall be calculated in accordance
with generally accepted accounting principles, and consistent
with the presentation for the fiscal year ended September 30,
1984. The Series A Conversion Price shall be adjusted such
that the number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock on a fully
converted basis equals the percentage of the total
stockholders' equity of the Company, determined on a fully
diluted basis, set forth in the table below.
EBIT Percentage of
(in thousands) Common Equity
--------------- -------------
$l5,418-11,102 30.11%
11,101- 9,868 31.19%
9,867- 8,635 33.35%
Less than 8,635 35.50%
(b) The Series A Conversion Price adjustment
provided for in subparagraph 5(a) shall be effective as or
March 31, 1987, shall be based on the number of shares Of
Common Stock outstanding, determined on a fully diluted basis,
on such date, and shall be subject to the following
provisions:
(A) Public Offering. No adjustment shall be made in the
Series A Conversion Price pursuant to subparagraph 5(a), if on
or prior to March 31, 1987, the Company files with the
Securities and Exchange Commission a registration statement
under the Securities Act of 1933, as amended, with respect to
an underwritten public offering of the Company's Common Stock
in which the pre-offering valuation of the Company's Common
Stock (determined by an investment banking firm of nationally
recognized standing) equals or exceeds $16.57 per share (as
appropriately adjusted for any stock dividend, stock split,
recapitalization or combination of shares), and such
registration statement becomes effective and the execution and
delivery of all agreements and the transfer of all funds
contemplated by such offering occurs on or prior to June 30,
1987, and in which the aggregate gross offering proceeds equal
or exceed $10,000,000.
(B) Sale of the Company. No adjustment shall be made
in the Series A Conversion Price pursuant to subparagraph
5(a), if on or prior to March 31, 1987, the Company enters
into a valid and binding letter of intent agreement with a
purchaser with respect to the sale of the Company (for
consideration in cash, marketable securities valued by an
investment banking firm of nationally recognized standing, or
both) to such purchaser at an aggregate purchase price equal
to or exceeding an amount equal to $16.57 per share of the
Company's Common Stock (as appropriately adjusted for any
stock dividend, stock split, recapitalization or combination
of shares), and the execution and delivery of all agreements
and the transfer of all funds contemplated by such sale as
provided in the letter of intent agreement occurs on or prior
to June 30, 1987.
(C) Previous Adjustment. No adjustment shall be made in
the Series A Conversion Price pursuant to subparagraph 5(a)
above if an adjustment has previously been made in the Series
A Conversion Price pursuant to subparagraph 4(f)(i)(B) above.
No adjustment resulting in an increase in the Series A
Conversion Price shall be made pursuant to subparagraph 5(a)
above.
(c) If, there has been no adjustment in the
Series A Conversion Price pursuant to subparagraphs 4(f)(i)
and 5(a) above, then the Series A Conversion Price in effect
immediately prior to the adjustment provided for in this
subparagraph 5(c) shall be adjusted such that the number of
shares of Common Stock issuable upon conversion of the Series
A Preferred Stock on a fully converted basis equals 25.53% of
the total stockholders' equity of the Company, determined on a
fully diluted basis, if:
(i) the Company shall have EBIT as defined in
subparagraph 5(a) for the fiscal year ending September 30, 1986,
equal to or exceeding $15,419,000: or
(ii) on or prior to March 31, 1987, the Company files with the
Securities and Exchange
Commission a registration statement under the Securities Act
of 1933, as amended, with respect to an underwritten public
offering Of the Company's Common Stock in which the
pre-offering valuation of the Company's Common Stock
(determined by an investment banking firm of nationally
recognized standing) equals or exceeds $19.34 per share (as
appropriately adjusted for any stock dividend, stock split,
recapitalization or combination of shares), and such
registration statement becomes effective and the execution and
delivery of all agreements and the transfer of all funds
contemplated by such offering occurs on or prior to June 30,
1987, and in which the aggregate gross offering proceeds equal
or exceed $10,000,000: or
(iii) On or prior to March 31, 1987 the Company enters
into a valid letter Of intent agreement with a purchaser with
respect to the sale of the Company to such purchaser (for
consideration in cash, marketable securities valued by an
investment banking firm of nationally recognized standing, or
both) at an aggregate purchase price which equals or exceeds
an amount equal to $19.34 per share of the Company's Common
Stock (as appropriately adjusted for any stock dividend, stock
split, recapitalization or combination of shares), and the
execution and delivery Of all agreements and the transfer Of
all funds contemplated by such sale as provided in the letter
of intent agreement occurs on or prior to June 30, 1987.
The Series A Conversion Price adjustment provided
for in this subparagraph 5(c) shall be effective as of March
31, 1987.
(d) All calculations under this paragraph 5 shall
be made to the nearest one hundredth (l/l00th) of a share. The
Company shall provide each holder of shares of Series A
Preferred Stock with a statement with respect to any
adjustment in the Series A Conversion Price pursuant to this
paragraph 5 as provided in subparagraph 4(h). The provisions
of subparagraphs 4(k), 4(1), 4(m) and 4(n) shall apply with
respect to any adjustment pursuant to subparagraph 5(a).
On March 31, 1987, the Company shall deliver to
each holder of shares of Series A Preferred Stock a
certificate, signed by its chief financial officer and its
chief executive officer, dated such date, to the effect that,
for the fiscal year 1986, the Company's consolidated operations
and business were conducted in a manner consistent with past
practices and that no extraordinary transactions or changes in
such operations or business were engaged in or extraordinary
accounting treatments or procedures used by the Company.
(e) Upon the occurrence of the closing of a sale
of the Company prior to March 31, 1987 for an aggregate
purchase price less than an amount equal to $16.57 per share of
the Company's Common Stock (as appropriately adjusted for any
stock dividend, stock split, recapitalization or combination of
shares), the Series A Conversion Price in effect immediately
prior to such sale shall be adjusted such that the number of
shares of Common Stock issuable upon conversion of the Series A
Preferred Stock on a fully converted basis equals the
percentage of the total stockholders' equity Of the Company,
determined on a fully diluted basis, set forth in the table
below:
Consideration Percentage of
Per Share Common Equity
-------------- -------------
$13.54 - 16.57 30.11%
13.53 - 12.98 31.19%
12.97 - 12.15 33.35%
12.14 and below 35.50%
provided, however, that no such adjustment shall be made if an
adjustment in the Series A Conversion Price has been made
pursuant to subparagraph 4(f)(i)(B) above.
6. Redemption. The Company shall not redeem the
Series A Preferred Stock, in whole or in part.
7. Retirement of Shares. Shares of Series A
Preferred Stock which have been issued and have been redeemed,
repurchased or reacquired in any manner by the Company shall be
retired and shall not be reissued.
8. General Provisions.
(a) The term "Person" as used herein means any
corporation, partnership, trust, organization, association,
other entity or individual.
(b) The term "outstanding", when used with
reference to shares of stock, shall mean issued shares,
excluding shares held by the Company or a subsidiary.
(c) All accounting terms used herein and not
expressly defined herein shall have the meanings given to them
in accordance with generally accepted accounting principles.
(d) The headings of the paragraphs,
subparagraphs, clauses and subclauses of this Article are for
convenience of reference only and shall not define, limit or
affect any of the provisions hereof.
(e) The term "Purchase Agreement" as used herein
means the Purchase Agreement dated as of September 18, 1985
among the Company and the several Purchasers listed in
Schedule I thereto.
(f) The term "Inco Agreement" as used herein
means the Supplemental Agreement dated as of September 18,
1985 among Inco United States Inc., the Company, Conrad A.
Plimpton and Lance L. Knox, as in effect on September 18,
1985.
II. Series B Preferred Stock
1. The holders Of Series B Preferred Stock shall
be paid out of funds legally available therefor dividends at
the rate of Ninety-Five Dollars ($95.00) per share per annum,
payable quarter-annually on the last days of December, March,
June and September in each year, commencing December 31, 1985.
Such dividends on the shares of Series B Preferred Stock shall
accrue and be cumulative from the date of their issue. So long
as any shares of Series B Preferred Stock are outstanding, no
dividend or distribution, whether in cash or property, shall
be paid, declared or made on Series A Preferred Stock or
Common Stock and no Series A Preferred Stock or Common Stock
shall be purchased, redeemed or otherwise acquired for value
by the Company, unless full cumulative dividends on Series B
Preferred Stock for all past quarter-annual dividend periods
and
for the then current quarter-annual dividend period shall have
been declared and paid or set aside for payment.
2. In the event of any liquidation, dissolution
or winding up of the Company, the holders of Series B
Preferred Stock shall be entitled to receive, out of the
assets of the corporation available for distribution to its
stockholders, before any distribution of assets shall be made
to the holders of Series A Preferred Stock or Common Stock,
the sum of One Thousand Dollars ($1,000.00) per share plus an
amount equal to full cumulative dividends thereon, whether or
not earned or declared, computed to the date of final
distribution to the holders of Series B Preferred Stock. The
consolidation or merger of the Company with any other
corporation or corporations shall not, for the purposes of
this paragraph 2, be deemed a liquidation, dissolution or
winding up of the Company; provided, however, if any holder of
Series A Preferred Stock treats any sale, lease or transfer of
50% or more of the assets of the Company or any subsidiary or
any consolidation or merger as a liquidation under paragraph 2
of Section 1 above and becomes entitled to the preference set
forth therein, the holders of Series B Preferred Stock shall
be entitled for a period of 45 days to a preference, to the
extent set forth above with respect to the shares of Series B
Preferred Stock, over the Series A Preferred Stock in an
amount equal to the preference to which the Series A Preferred
Stock then became entitled.
3. (a) Series B Preferred Stock, or any part
thereof, at any time outstanding may be redeemed by the
Company, at its election expressed by resolution of the Board
of Directors, at any time or from time to time, at the price
of One Thousand Dollars ($1,000.00) per share, together in
each case with full cumulative dividends thereon to the
redemption date. If less than all the outstanding shares of
Preferred Stock are to be redeemed pursuant to this
subparagraph 3(a), the redemption shall be made on a pro rata
basis in such manner as may be prescribed by the Board of
Directors.
(b) On October 15, 1987, 1988, 1989 and 1990, the
Company shall redeem 395 shares of Series B Preferred Stock at
a price of One Thousand Dollars ($1,000.00) per share,
together with full cumulative dividends thereon to the
redemption date.
(c) Notice of every redemption of Series B
Preferred Stock shall be mailed to the holders of record of
the shares to be redeemed at their respective addresses as
they shall appear on the stock books of the Company at least
thirty days and not more than sixty days prior to the
redemption date. If notice of redemption shall have been duly
mailed and if, on or before the redemption date specified in
the notice, the redemption price shall have been set aside by
the Company, separate and apart from its other funds and
deposited in a bank account of a member bank of the Federal
Reserve System having a net worth as of its most recent
balance sheet of at least $500,000,000, for the pro rata
benefit of the holders of the shares so called for
redemption, so as to be and continue to be available
therefor, then, from and after the date of redemption so
designated, notwithstanding that any certificate for shares
of Series B Preferred Stock so called for redemption shall
not have been surrendered for cancellation, the shares
represented thereby shall no longer be deemed outstanding,
the dividends thereon shall cease to accumulate and all
rights with respect to the shares of Series B Preferred Stock
so called for redemption shall forthwith on the redemption
date cease and terminate, except only the right of the
holders thereof to receive the redemption price of the shares
so redeemed, including full cumulative dividends to the
redemption date, but without interest.
4. Except as otherwise provided herein and except as provided
by statute, Series B Preferred Stock shall have no voting
rights. In case the quarter-annual dividend on Series B
Preferred Stock is not paid in full on any two quarter-annual
dividend payment dates (whether consecutive or not), then at
any meeting of the stockholders of the Company held (or in
connection with any action taken by the stockholders of the
Company in writing) during the period commencing with such
time and ending with the time when all arrears in dividends on
Series B Preferred Stock shall have been paid and the full
dividend on Series B Preferred Stock for the then current
quarter-annual dividend period shall have been declared and
paid or set aside for payment, the holders of Series B
Preferred Stock present in person or represented by proxy at
said meeting shall be entitled to one hundred (100) votes per
share upon all matters submitted to a vote of stockholders at
said meeting (or submitted to stockholders for action by
written consent). Any vote of holders of Series B Preferred
Stock provided for herein may be expressed by written consent
or at any meeting of stockholders or at any special meeting
called for the purpose of such vote.
5. Without the consent of the holders of at 2/3%
of the aggregate number of shares of Series B__ _ Preferred
Stock then outstanding, given in writing or by vote at a
meeting of stockholders called for such purpose, the Company
will not (a) increase the authorized amount of Series B
Preferred Stock or (b) create or increase the authorized
amount of any other class of stock nor reclassify the rights
of any class of capital stock or issue any debt convertible
into a class of stock entitled to a preference prior to or on
parity with Series B Preferred Stock upon any dividend or
distribution or any liquidation, distribution of assets,
dissolution or winding-up of the Company.
6. The term "full cumulative dividends" whenever
used herein with reference to any share of Series B Preferred
Stock shall be deemed to mean an amount computed at the annual
dividend rate from the date on which dividends on such shares
became cumulative to and including the date to which such
dividends are to be accrued less the aggregate amount of all
dividends theretofore paid thereon.
III. Common Stock
1. Dividends. After the requirements with respect
to preferential dividends upon Preferred Stock shall have been
met, the holders of Common Stock shall be entitled to receive
such dividends as may be declared from time to time by the
Board of Directors.
2. Dissolution. After distribution in full of the
preferential amounts to be distributed to the holders of
Preferred Stock then outstanding in the event of the
liquidation, dissolution or winding up of the corporation, the
holders of Common Stock shall be entitled to receive all the
remaining assets of the Company available for distribution to
its stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
3. Voting. Each holder of Common Stock shall have
one vote in respect of each share of such stock held by him.
SECOND: That the amendment of the Certificate of
Incorporation has been duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, we have hereunto subscribed
our names and affixed the seal of the Company this 19th day
of September, 1985.
Lance L. Knox
Lance L. Knox
Vice Chairman of the Board
(Corporate Seal)
M. Finley Maxson
M. Finley Maxson
Assistant Secretary
C.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Exide Electronics Group, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a
meeting duly held on October 1, 1986, adopted the following resolution
proposing and declaring advisable the following amendment to the Certificate of
Incorporation of said corporation:
RESOLVED, that the Board of Directors approves that the Certificate of
Incorporation of Exide Electronics Group, Inc. be amended by the addition of
the following language to the appropriate section of the Certificate of
Incorporation and that such actions be recommended to the Shareholders for
adoption:
TENTH: No Director of the corporation shall be personally liable
to the corporation or to its Stockholders for monetary damages for breach of
fiduciary duty as a Director, provided that this provision shall not limit the
liability of a Director (a) for any breach of the Stockholders, (b) for acts or
omissions not in good faith or involving intentional misconduct or a knowing
violation of law, (c) under Section 174 of Title 8 of the Delaware Code, or (d)
for any transaction from which section does not limit the liability of a
Director for any act or omission occurring prior to the date when this section
becomes effective.
FURTHER RESOLVED, That the above Resolution be added to the Bylaws
of Exide Electronics Group, Inc., under Article X, Section 7.
SECOND: That in lieu of a meeting and vote of Stockholders, the
Stockholders have given unanimous written consent to said amendment in
accordance with the provisions of section 228 of the General Corporation Law of
the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in
accordance with the applicable provisions of sections 242 and 228 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said Exide Electronics Group, Inc. has caused
this certificate to be signed by its Vice President and attested by its
Assistant Secretary this fifth day of January, 1987.
EXIDE ELECTRONICS GROUP, INC.
By: Warren J. Johnson
Warren J. Johnson
Its: Vice President
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
EXIDE ELECTRONICS GROUP, INC.
EXIDE ELECTRONICS GROUP, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, by the
written consent of all of its members, filed with the minutes of
the Board, adopted resolutions proposing and declaring advisable
the amendments to the Certificate of Incorporation of said
corporation set forth in Exhibit A hereto.
SECOND: That in lieu of a meeting and vote of the
stockholders, the holders of at least two-thirds of the
outstanding shares of each class of stock of the Corporation
entitled to vote on said amendments have given their written
consent thereto in accordance with the provisions of the
Certificate of Incorporation and By-laws of the Corporation and
Section 228 of the General Corporation Law of the State of
Delaware.
THIRD: That the aforesaid amendments were duly adopted in
accordance with the applicable provisions of Sections 242 and 228
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Exide Electronics Group, Inc. has
caused this Certificate of Amendment to be signed and
attested by Nicholas J,. Costanza, its Vice President, Chief
Legal Counsel and Assistant Secretary, this 11th day of
December, 1989.
[Seal] EXIDE ELECTRONICS GROUP, INC.
By: Nicholas J. Costanza
Nicholas J. Costanza
Vice President,
Chief Legal Counsel and
Assistant Secretary
EXHIBIT A
A. Article FOURTH of the Certificate of Incorporation be, and
it hereby is amended by deleting the introductory paragraph and
inserting the following new introductory paragraph and new Section
I and by redesignating the existing Sections I, II, and III as
Sections II, III, and IV, respectively:
FOURTH. The total number of shares of
stock which the Company shall have authority to issue is
eighteen million ninety-one thousand five hundred eighty
(18,091,580) shares divided into two million (2,000,000) shares of
Preferred Stock, par value $0.01 per share, one million ninety
thousand (1,090,000) shares of Series A Preferred Stock, par value
$10.00 per share, one thousand five hundred eighty (1,580) shares
of Series B Preferred Stock, par value $1,000.00 per share, and
fifteen million (15,000,000) shares of Common Stock, par value
$0.01 per share.
I. Preferred Stock
The Board of Directors is authorized to issue the Preferred
Stock, subject to limitations prescribed by law and the provisions
of this Certificate, as shares of preferred stock in series, and is
authorized, by filing a certificate pursuant to the applicable law
of the State of Delaware, to establish from time to time the number
of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions
thereof. The authority of the Board of Directors with respect to
each such series shall include, but not be limited to,
determination of the following:
(1) The number of shares constituting that series
and the distinctive designation of that series;
(2) The dividend rate on the shares of that series,
whether the dividends shall be cumulative, and, if so, from which
date or dates, and the relative rights of priority, if any, of the
payment of dividends on shares of that series;
(3) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the
terms of such voting rights;
(4) Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion, including
provisions for adjustment of the conversion rate in such events as
the Board of Directors shall determine;
(5) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and at
different redemption dates;
(6) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms and amount of such sinking fund;
(7) The rights of the shares of that in the event of
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if any, of
payment of shares of that series;
(8) Any other relevant rights, preferences and
limitations of that series.
Dividends on outstanding shares of preferred stock shall
be paid or declared and set apart for payment, before any dividends
shall be paid or declared and set apart for payment on the common
shares with respect to the same dividend period.
If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets available
for distribution to the holders of shares of preferred stock of a11
series shall be insufficient to pay such holders the full
preferential amounts to which they are entitled, then such assets
shall be distributed ratably among the shares of all series of
preferred stock in accordance with the respective preferential
amounts (including unpaid cumulative dividends, if any) payable
with respect thereto."
"No actions may be taken by the holders of
Common Stock by consenting to such actions in writing
without a meeting."
B. Article FOURTH, Section IV, Subsection 3 of the
Certificate of Incorporation be, and it hereby is, amended by
inserting the following after the first sentence of said
Subsection:
C. Article FOURTH of the Certificate of Incorporation be,
and it hereby is, amended by inserting the following new
Subsection 4 to Section IV:
"4. Supermajority Vote for Certain Corporate Actions. In
addition to any class voting requirements under the General
Corporation Law of Delaware, (i) should the individuals who were
directors of the Corporation at the beginning of any immediately
preceding period of twenty-four (24) consecutive months cease for
any reason to constitute at least a majority of the Board of
Directors or (ii) should direct or indirect beneficial ownership
of more than twenty percent (20%) of the Corporation's outstanding
securities entitled to vote in elections of directors be acquired
by any person or group (as such terms are used in Sections 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended),
except for any person or group that held more than twenty percent
(208) of the Corporation's outstanding securities entitled to vote
in elections of directors on October 2E, 1989 and did not
subsequently hold twenty (208) or less of the Company's
outstanding securities entitled to vote in elections of directors,
then the Corporation shall not, without the vote of stockholders
holding at least eighty percent (80%) of the power to vote, as
determined in accordance with this Article FOURTH:
(1) Enter into any agreement to merge or consolidate or
effectuate the merger or consolidation of the Corporation with or
into any other corporate entity;
(2) Enter into any agreement for the sale, lease or
assignment, or effect the sale, lease or assignment, of all or
substantially all of the assets and properties of the Corporation;
or
D. Article SEVENTH of the Certificate of
Incorporation be, and it hereby is, amended by deleting such
Article in its entirety and inserting in lieu thereof the following:
SEVENTH
(3) Amend any provision of Subsections 3 or 4 of
Section IV of this Article FOURTH;
provided that the Board of Directors is authorized to
waive the application of this paragraph to any transaction
described in (1) or (2) between the Corporation and any subsidiary
of the Corporation, if none of the capital stock of such subsidiary
is held by a person (other than the Corporation, any subsidiary of
the Corporation, or any pension, savings or other employee benefit
plan for the benefit of employees of the Corporation and/ or any
subsidiary of the Corporation) that is the beneficial owner,
directly or indirectly, of more than twenty percent (208) of the
voting power of the Corporation, as determined in accordance with
Article FOURTH."
(a) Elections of the directors need not be by written ballot
unless the by-laws of the corporation shall so provide.
(b) The number of directors shall be fixed as provided in the
By-laws of the Corporation. Effective following the time the
Certificate of Amendment containing this clause becomes effective,
the Board of Directors shall be divided, by resolution of the Board
of Directors, into three classes (which at all times shall be as
nearly equal in number as possible), with the term of office of the
first class to expire at the 1991 annual meeting of stockholders,
the term of office of the second class to expire at the 1992 annual
meeting of stockholders and the term of office of the third class
to expire at the 1993 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 to expire
at the third succeeding annual meeting of stockholders after their
election. The foregoing notwithstanding, each director shall serve
until his successor has been duly elected and qualified, unless he
shall resign become disqualified or disabled or otherwise be
removed."
E. Article NINTH of the Certificate of Incorporation be,
and it hereby is, amended by deleting such Article in its
entirety and insert in lieu thereof the following:
"NINTH. Directors may be removed by the stockholders
only for cause, in accordance with the procedures set forth
in the by-laws."
F. The Certificate of Incorporation be, and it hereby is,
amended by inserting the following new Article ELEVENTH after
the last sentence of Article TENTH:
"ELEVENTH
(a) Indemnification of Directors and Officers for Actions, Suits,
or Proceedings Other than by or in the Right of the Corporation.
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he is or was or has agreed to become a
director or officer of the Corporation or is or was serving or has agreed to
serve at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself,
create a presumption that the person did not
act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) Indemnification of Directors and
Officers for Actions or Suits by or in the Right of
the Corporation.
To the full extent permitted by law, the
Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was or has
agreed to become a director or officer of the Corporation
or is or was serving or has agreed to serve at the request
of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted
in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the
defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the
defense or settlement of any claim, issue or matter, if
and only if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation except that no
indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only
to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication
of such liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and the expenses which
the Court of Chancery or such other court shall deem
proper.
(c) Indemnification of Others for
Actions, Suits, or Proceedings Other than by or in
the Right of the Corporation.
To the full extent permitted by law, the
Corporation, in the sole discretion of the Board of
Directors of the Corporation, may indemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of
the Corporation), by reason of the fact that he is or was
or has agreed to become an employee, agent or contractor of
the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director,
officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason
of any action alleged to have been taken or omitted in such
capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on
his behalf in connection with any threatened, pending or
completed action, suit or proceeding and any appeal
therefrom, including but not limited to liability and
expenses incurred on account of profits realized by him in
the purchase or sale of securities of the Corporation, if
and only if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(d) Indemnification of Others for Actions-or
Suits by or in the Right of the Corporation.
To the full extent permitted by law, the Corporation,
in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party
or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor by
reason of the fact that he is or was or has agreed to
become an employee, agent or contractor of the Corporation,
or is or was serving or has agreed to serve at the request
of the Corporation as a director, officer, employee, agent
or contractor of another corporation, partnership, joint
venture, trust or
other enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted
in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the
defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the
defense or settlement of any claim, issue or matter, if and
only if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification
shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable
to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in
view of all the circumstances of the case, such person is
fairly and-reasonably entitled to indemnity for such costs,
charges and expenses which the Court of Chancery or such
other court shall deem proper.
(e) Indemnification for Costs, Charges and
Expenses of Successful Party.
Notwithstanding the other provisions of this
Certificate, to the extent that a director or officer of
the Corporation or other person indemnified under Sections
I through IV, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of
an action without prejudice, in defense of any action, suit
or proceeding referred to above, or in defense of any
claim, issue or matter therein, he shall be indemnified
against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or
on his behalf in connection therewith.
(f) Determination of Right of Indemnify
Unless otherwise ordered by a court, any
indemnification under Sections I through IV, herein, shall
be paid by the Corporation unless a determination is made
(1) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the
stockholders, that indemnification of an
individual entitled to indemnification under Sections I
through IV, herein, i8 not proper in the circumstances
because he has not met the applicable standard of conduct
set forth in Sections I through IV, herein.
(g) Advance Payment of Costs, Charges and
Expenses.
To the full extent permitted by law, the Corporation
shall, upon request, pay costs, charges and expenses
(including attorneys' fees) incurred by a person entitled
to indemnification pursuant to Sections I and II, herein,
and, if applicable, pursuant to Sections III and IV,
herein, in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such
action, suit or proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a
director or officer in his 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)
in advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to
repay all amounts so advanced in the event that it shall
ultimately be determined that such director or officer is
not entitled to be indemnified by the Corporation as
authorized in this certificate; such costs, charges and
expenses incurred by other employees, agents and
contractors may be so paid upon such terms and conditions,
if any, as the Board of Directors deems appropriate.
(h) Procedure for Indemnification.
Any indemnification or advance of costs, charges and
expenses provided for in Sections I through VII, herein,
shall be made promptly, and in any event within sixty days,
upon the written request of the person entitled to
indemnification; the right to indemnification or advances
as granted by this Certificate shall be enforceable by a
director or officer or other person indemnified hereunder
in any court of competent jurisdiction. If the Corporation
denies such request, in whole or in part, or if no
disposition thereof is made within sixty days, such
person's costs, charges and expenses incurred in connection
with successfully establishing his right to
indemnification, in whole or in part, in any such action
shall also be indemnified by the Corporation; it shall be a
defense to any such action (other than an action brought to
enforce a claim for the advance of costs,
charges and expenses pursuant to Section VII,
herein, where the required undertaking, if any, has been
received by the Corporation) that the claimant has not met
the standard of conduct set forth in Sections I through
IV, herein, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, its
independent legal counsel, and 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 has met the applicable
standard of conduct set forth in Sections I through IV,
herein, nor the fact that there has been an actual
determination by the Corporation (including its Board of
Directors, its independent legal counsel, and 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.
(i) Authorization of Corporation Officers.
The proper officers of the Corporation are, and each
of them acting without the other is, authorized to take
any action, for and in the name of the Corporation, which
he deems necessary or appropriate (as conclusively
presumed from the taking of such action) to carry out and
effect the foregoing Sections I through VIII.
(j) Other Rights; Continuation of Right to
Indemnification.
The indemnification and advancement of expenses
provided by this Certificate shall not be deemed exclusive
of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled
under any law (present or future, common or statutory),
by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while
holding office or while employed by or acting as agent for
the Corporation, and shall continue as to a person who has
ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the
estate, heirs, executors and administrators of such
person; all rights to indemnification under this
Certificate shall be deemed to be a contract between the
Corporation and each director and officer of the
Corporation and, as applicable, any other person
indemnified hereunder
who serves or served in such capacity at any
time while this Certificate as well as the relevant
provisions of the Delaware General Corporation Law or any
other applicable laws are or were in effect; any repeal or
modification hereof or of such provisions of such law shall
not in any way diminish any rights to indemnification of
such director or officer or other person entitled to
indemnification or the obligations of the Corporation
arising hereunder.
(k) Savings Clause.
If this Certificate or any portion hereof shall be
invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer, and may indemnify any
other person entitled to indemnification, as to costs,
charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with
respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an
action by or in the right of the Corporation, to the full
extent permitted by any applicable portion of this
Certificate that shall not have been invalidated and to the
full extent permitted by applicable law. To the full extent
permitted by law, the Corporation may enter into and
perform agreements with persons, including, without
limitation, present and former officers, directors and
employees of the Corporation and of companies acquired by
or merged with the Corporation, obligating the Corporation,
among other things, to provide indemnification and
advancement of costs, charges and expenses to such persons
in addition to any indemnification or advancement which may
be available to such person under Sections I through X of
this Certificate.
(l) Insurance.
The Board of Directors may cause the Corporation to
purchase and maintain insurance on behalf of any person who
is or was or has agreed to become a director or officer of
the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another
corporation, or as its representative in a partnership,
joint venture, trust or other enterprise (including
employee benefit plans) against any liability asserted
against such person and incurred in any such capacity or
arising out of such status, whether or not the Corporation
would have the power to indemnify such person.
(m)
Adoption of By-laws.
The Board of Directors may from time to time adopt
By-laws with respect to indemnification and may amend such
By-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law
of the State of Delaware.".
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
EXIDE ELECTRONICS GROUP, INC.
Exide Electronics Group, Inc., a corporation organized
and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"), does hereby certify that:
FIRST: The name of the Corporation is Exide
Electronics Group, Inc.
SECOND: The introductory paragraph of Article
FOURTH of the Certificate of Incorporation of the Corporation is
amended in its entirety as follows:
"FOURTH. The total number of shares of stock
which the Company shall have authority to issue is thirty-two
million (32,000,000) shares divided into two million (2,000,000)
shares of Preferred Stock, par value $.01 per share, and thirty
million (30,000,000) shares of Common Stock, par value $.01 per
share."
THIRD: The foregoing amendment to Article FOURTH
of the Certificate of Incorporation was duly adopted by the
Corporation in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Exide Electronics Group, Inc.
has caused this Certificate of Amendment to be signed by Marty R.
Kittrell, its Vice-President and Chief Financial Officer, and
attested by Nicholas J. Costanza, its Secretary, this 24th day of
February, 1995.
EXIDE ELECTRONICS GROUP, INC.
Marty R. Kittrell
Marty R. Kittrell
Vice-President and
Chief Financial Officer
Attest:
Nicholas J. Costanza
Nicholas J. Costanza
Secretary
BY-LAWS
OF
EXIDE ELECTRONICS GROUP, INC.
(As Amended Through December 21, 1989)
Article I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Meetings of stockholders for any purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders shall be held on
the fourth Tuesday in February, if not a legal holiday, and if a legal holiday,
then on the next secular day following, or at such other date as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect a board of directors and transact
such other business as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the Chairman and shall be called by the
Chairman or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority in
the amount of any class of capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of stock having more than fifty percent of the
voting power of the stock issued and outstanding, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is foe more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of stock having more than fifty percent of the voting power of the
issued and outstanding stock, present in person or represented by proxy, shall
decide any question brought before such meeting, unless the question is one
upon which by express provision of the statutes or of the certificate of
incorporation or of these by-laws, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Section 10. Except as otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting
of the stockholders be entitled to one vote in person or by proxy
for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted after three years from its date,
unless the proxy provides for a longer period. As used herein, the term "voting
power" means the power to vote for the election of directors at the time any
determination of voting power is made and does not include the right to vote
upon the happening of some condition or event which has not yet occurred.
Section 11. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less then the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporation action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The numbers of directors which shall constitute the
whole board shall be not less than six (6) nor more than fifteen (15), as may
be determined from time to time by a resolution adopted by the board of
directors.
Section 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of directors then in office, though less than a quorum, or by the sole
remaining director, unless otherwise provided in the certificate of
incorporation.
Section 3. The Board of Directors shall be divided into three
classes (which at all times shall be as nearly equal in number as possible),
with the term of office of the first class to expire at the 1991 annual meeting
of stockholders, the term of office of the second class to expire at the 1992
annual meeting of stockholders, and the term of office of the third class to
expire at the 1993 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 to expire at the third succeeding annual meeting of stockholders after
their election. The foregoing notwithstanding, each director shall serve until
his successor has been duly elected and qualified, unless sooner displaced. If
there are no directors in office, then an election of
directors may be held in the manner provided by statute.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors
then in office, though less than a quorum. A director so chosen to fill a
vacancy shall hold office until the expiration of the term of the director
whose position he has filled and until his successor has been duly elected and
qualified, unless sooner displaced. If the Board of Directors increases the
authorized number of directors, each newly created directorship shall be
assigned to a class in such a manner as to keep the classes as nearly equal in
number as possible. A director chosen to fill a newly created directorship
shall hold office until the annual meeting of stockholders at which the term of
other directors in his class expires and until his successor has been duly
elected and qualified, unless sooner displaced.
Section 4. The business of the corporation shall be managed by
or under the direction of its board of directors which may exercise all such
powers of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
Meetings of the Board of Directors
Section 5. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 6. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order to legally constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the
time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be
held without notice at such time and at such place as shall from time to time
be determined by the board.
Section 8. Special meetings of the board of directors may be
called by the Chairman or the secretary, and shall be called by the secretary
upon the written request of a majority of the board of directors. Notice of the
time and place of such meetings shall be served upon or telephoned to each
director at
least 24 hours, or mailed (postage prepaid) or telegraphed
(charges prepaid) to each director at his address as shown on the books of the
corporation at least 48 hours prior to the time of the meeting, and if such
notice is mailed or telegraphed as above provided, the notice shall be deemed
to have been given at the time it is deposited in the United States mail or
with the telegraph office for transmission, as the case may be.
Section 9. At all meetings of the board a majority of directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 11. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may participate in a meeting of
the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Committees of Directors
Section 12. The board of directors may, by resolution passed
by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee.
Any such committee, to the extent provided in the resolution
of the board of directors, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may {require it; but no such committee shall have
the power
or authority in reference to amending the certificate of
incorporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending
the by-laws of the corporation; and, unless the resolution or the certificate
of incorporation expressly so provides, no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 13
Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
Compensation of Directors
Section 14. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a
stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Removal of Directors
Section 15. Directors may be removed only for cause by the
holders of stock having more than fifty percent of the voting power of all
outstanding stock.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or
of the certificates of incorporation or of these bylaws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on the records of
the corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Notice to directors may also be
given by telegram or telephone.
Section 2. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a person, either in person or by
proxy, at any meeting, shall constitute a waiver of notice of such meeting,
except where a person attends a meeting for the express purpose of objecting to
the transaction of any business because the meeting was not lawfully called or
convened.
ARTICLE V
OFFICERS
Section 1. The Board of Directors shall elect from its
membership a chairman of the board of directors (herein called "Chairman") and
from its membership or outside thereof a president, a vice president, a
secretary and a treasurer. The board of directors may also choose from its
membership a vice chairman of the board of directors and from its membership or
outside thereof additional vice presidents, and one or more assistant
secretaries and assistant treasurers. Any number of offices may be held by the
same person, unless the certificate of incorporation or these by-laws otherwise
provide.
Section 2. The board of directors at its first meeting after
each annual meeting of stockholders shall choose a Chairman, a president, one
or more vice presidents, a secretary and a treasurer. The board of directors at
its first meeting after each annual meeting of stockholders may also choose one
or more assistant secretaries and one or more assistant treasurers.
Section 3. The board of directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote of
a majority of the board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
The Chairman
Section 6. The Chairman shall preside at all meetings of the
stockholders and the board of directors and shall see that all orders and
resolutions of the board of directors are carried into effect. In the event of
the absence or disability of the president, the Chairman shall exercise and
perform the duties, powers and functions of the president until such time as
the board of directors may otherwise direct.
Section 7. The vice chairman of the board of directors shall,
in the absence of the chairman of the board of directors or his inability to
act, perform the duties of the Chairman. The vice chairman of the board of
directors shall also have such other duties and powers as may be assigned to
our vested in him from time to time by the board of directors. >
The President
Section 8. The president shall be the chief executive officer
of the corporation and, as such, shall supervise, direct and assign duties to
those officers and agents of the corporation who are engaged in its affairs. He
shall submit to the board of directors such reports with respect to the affairs
of the corporation as he deems appropriate and necessary to keep the board of
directors advised with respect thereto, and such other reports as the board of
directors or committee thereof may from time to time request. The president
shall also have such other duties and powers as may be assigned to or vested in
him from time to time by the board of directors.
The Vice Presidents
Section 9. In the absence of the president, the Chairman and
the vice chairman or in the event of their inability or refusal to act, the
vice president (or in the event there be more than one vice president, the vice
presidents in the order designated by the directors, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the president, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the president. The vice presidents shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
The Secretary and Assistant Secretary
Section 10. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the
board of directors or president, under whose supervision he shall be. He shall
have custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by his signature or by the signature
of such assistant secretary. The board of directors may give general authority
to any officer to affix the seal of the corporation and to attest the affixing
by his signature.
Section 11. The assistant secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
The Treasurer and Assistant Treasurers
Section 12. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the board of
directors.
Section 13. He shall disburse the funds of the corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the Chairman and the board of directors, at
its regular meetings, or when the directors so require, an account of all his
transactions as treasurer and of the financial condition of the corporation.
Section 14. If required by the board of directors, he shall
give the corporation a bond (which shall be renewed every six years) in such
sum and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to
the corporation.
Section 15. The assistant treasurer, or if there shall be more
than one, the assistant treasurers in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE VI
STOCK CERTIFICATES
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation
by, the Chairman or vice chairman of the board of directors, or the president
or a vice president and the treasurer or an assistant treasurer or the
secretary or an assistant secretary of the corporation, certifying the number
of shares owned by him in the corporation.
Section 2. If the corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation
Law of Delaware, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 3. Any of or all the signatures on the certificate
may be facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Lost Certificates
Section 4. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Transfer of Stock
Section 5. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Fixing Record Date
Section 6. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the board of directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any- adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for
the adjourned meeting.
Registered Stockholders
Section 7. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
Dividends
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest
of the corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Annual Statement
Section 3. The board of directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
Checks
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or
such other person or persons as the board of directors may from time to time
designate.
Fiscal Year
Section 5. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
Seal
Section 6. The corporate seal shall have inscribed thereon
the name of the corporation, the year of its organization and the words
"Corporate Seal, Delaware" The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These By-Laws may be altered or repealed (1) at
any meeting of the Stockholders or of the board of directors, including any
conference telephone meeting of the board of directors or (2) by written
consent of the board of directors.
ARTICLE IX
Miscellaneous
Section 1. Unless otherwise ordered by the board of
directors, the Chairman of the board or the vice chairman or the president or
any vice president or the secretary or the treasurer in person or by proxy or
proxies appointed by any of them shall have full power and authority on behalf
of the Corporation to vote, act and consent with respect to any shares of stock
issued by other corporations which the corporation may own or as to which the
corporation otherwise has the right to vote, act or consent.
ARTICLE X
Indemnification of Directors, Officers and Employees
Section 1. Indemnification of Directors and Officers for
Actions, Suits, or Proceedings Other than by or in the Right of
the Corporation. To the full extent permitted by law, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of the fact
that he is or was or has agreed to become a director or officer of the
Corporation or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including employee benefit plans) or by
reason of any action alleged to have been taken or omitted in such capacity
against costs, charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or on
his behalf in connection with any threatened, pending or completed action, suit
or proceeding and any appeal therefrom including but not limited to liability
and expenses incurred on account of profits realized by him in the purchase or
sale of securities of the Corporation, if and only if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not oppose: to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Indemnification of Directors and Officers for
Actions or Suits by or in the Right of the Corporation. To the full extent
permitted by law, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was or has agreed to
become reason of the fact that he is or was or has agreed to become a director
or officer of the Corporation, or is or was serving or has agreed to serve at
the request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans), or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation
unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of such liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such costs, charges and expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. Indemnification of Others for Actions, Suits, or
Proceedings Other than by or in the Right of the Corporation. To the full
extent permitted by law, the Corporation, in the sole discretion of the Board
of Directors of the Corporation, may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was or has agreed to become an employee, agent
or contractor of the Corporation, or is or was serving or has agreed to serve
at the request of the Corporation as a director, officer, employee, agent or
contractor of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with any threatened, pending or completed action, suit or proceeding
and any appeal therefrom, including but not limited to liability and expenses
incurred on account of profits realized by him in the purchase or sale of
securities of the Corporation, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; the termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 4. Indemnification of Others for Actions or Suits by
or in the Right of the Corporation. To the full extent permitted by law, the
Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was or has agreed to become an employee, agent or
contractor of the Corporation, or is or was serving or has agreed to serve at
the request of the Corporation as a director, officer, employee, agent or
contractor of another
corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges
and expenses (including attorneys' fees) actually and reasonably incurred by
him or on his behalf in connection with the defense or settlement of any
threatened, pending or completed action or suit and any appeal therefrom, or
the defense or settlement of any claim, issue or matter, if and only if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the Court of Chancery or such other court
shall deem proper.
Section 5. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of these By-laws, to the
extent that a director or officer of the Corporation or other person
indemnified under Sections 1 through 4, herein, has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any action, suit or proceeding referred to
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against all costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by him or on his behalf in connection
therewith.
Section 6. Determination of Right to Indemnification. Unless
otherwise ordered by a court, any indemnification under Sections 1 through 4,
herein, shall be paid by the Corporation unless a determination is made (1) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or (3)
by the stockholders, that indemnification of an individual entitled to
indemnification under Sections 1 through 4, herein, is not proper in the
circumstances because he has not met the applicable standard of conduct set
forth in Sections 1 through 4, herein.
Section 7. Advance Payment of Costs, Charges and Expenses. To
the full extent permitted by law, the Corporation shall, upon request, pay
costs, charges and expenses (including attorneys' fees) incurred by a person
entitled to indemnification pursuant to Sections 1 and Z, herein, and, if
applicable, pursuant to Sections 3 and 4, herein, in defending a civil or
criminal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such
costs, charges and expenses incurred by a director or officer
in his 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) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified
by the Corporation as authorized in these By-laws; such costs, charges and
expenses incurred by other employees, agents and contractors may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
Section 8. Procedure for Indemnification Any indemnification
or advance of costs, charges and expenses provided for in Sections l through 7,
herein, shall be made promptly, and in any event within sixty (60) days, upon
the written request of the person entitled to indemnification; the right to
indemnification or advances as granted by-these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such
person's costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the
advance of costs, charges and expenses pursuant to Section 1, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections l through 4,
herein, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and 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 has met the applicable standard of
conduct set forth in Sections l through 4, herein, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel, and 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.
Section 9. Authorization of Corporation Officers. The proper
officers of the Corporation are, and each of them acting without the other is,
authorized to take any action, for and in the name of the Corporation, which he
deems necessary or appropriate (as conclusively presumed from the taking of
such action) to carry out and effect the foregoing Sections l through 8.
Section 10. Other Rights; Continuation of Right to
Indemnification. The indemnification and advancement of expenses provided by
these By-laws shall not be deemed exclusive of any other rights to which a
person seeking indemnification or advancement of expenses may be entitled under
any law (present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these
By-laws shall be deemed to be a contract between the Corporation and each
director and officer of the Corporation and, as applicable, any other person
indemnified hereunder who serves or served in such capacity at any time while
these By-laws as well as the relevant provisions of the Delaware General
Corporation Law or any other applicable laws are or were in effect; any repeal
or modification hereof or of such provisions of such law shall not in any way
diminish any rights to indemnification of such director or officer or other
person entitled to indemnification or the obligations of the Corporation
arising hereunder.
Section 11. Savings Clause. If Sections 1 through 10 of these
By-laws or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Corporation shall nevertheless indemnify
each director and officer and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of these By-laws that shall not have been
invalidated and to the full extent permitted by applicable law. To the full
extent permitted by law, the Corporation may enter into and perform agreements
with persons, including, without limitation, present and former officers,
directors and employees of the Corporation and of companies acquired by or
merged with the Corporation, obligating the Corporation, among other things, to
provide indemnification and advancement of costs, charges and expenses to such
persons in addition to any indemnification or advancement which may be
available to such person under Sections 1 through 10 of these By-laws.
Section 12. Insurance. The Board of Directors may cause the
Corporation to purchase and maintain insurance on behalf of any person who is
or was or has agreed to become a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer of
another corporation, or as its representative in a partnership, joint venture,
trust or other enterprise (including employee benefit plans) against any
liability asserted against such person and incurred in any such
capacity or arising out of such status, whether or not the Corporation would
have the power to indemnify such person.
Section 13. Amendment of By-Laws. The Board of Directors may
from time to time adopt further By- laws with respect to indemnification and
may amend these and such By-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law of the State of
Delaware.