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Exhibit 3.2
RESTATED
CERTIFICATE OF INCORPORATION
of
NAVISTAR INTERNATIONAL CORPORATION
(originally incorporated IH International, Inc. on March 29, 1985)
First: The name of the corporation (hereinafter called the
"Company") is
NAVISTAR INTERNATIONAL CORPORATION
Second: The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its 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 the State of
Delaware, as amended.
Fourth: The total number of shares of stock which the Company
shall have authority to issue is 1,400,000,000, consisting of:
(1) 30,000,000 shares, with a par value of $1.00 per
share, are to be of a class designated "Preferred Stock;"
(2) 10,000,000 shares, with a par value of $1.00 per
share, are to be of a class designated "Preference Stock;"
(3) 1,100,000,000 shares, with a par value of $0.01 per
share, are to be of a class designated "Common Stock;" and
(4) 260,000,000 shares with a par value of $0.01 per
share, are to be of a class designated "Class B Common."
The Common Stock and Class B Common are hereafter collectively
referred to as the "Parent Common Stock."
I. Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series of any number of shares, provided
that the aggregate number of shares issued and not canceled of any
and all such series shall not exceed the total number of shares of
Preferred Stock hereinabove authorized, and with distinctive serial
designations, all as shall hereafter be stated and expressed in the
resolution or resolutions providing for the issue of such Preferred
Stock from time to time adopted by the Board of Directors pursuant to
authority so to do which is hereby vested in the Board of Directors.
Each series of Preferred Stock (i) may have such voting powers, full
or limited, or may be without voting powers; (ii) may be subject to
redemption at such time or times and at such prices; (iii) may be
entitled to receive dividends (which may be cumulative or
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noncumulative) at such rate or rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of stock;
(iv) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the corporation; (v) may be made
convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or
classes of stock of the corporation, at such price or prices or at
such rates of exchange, and with such adjustments; (vi) may be
entitled to the benefit of a sinking fund to be applied to the
purchase or redemption of shares of such series in such amount or
amounts; (vii) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the Company or any
subsidiary, upon the issue of any additional stock (including
additional shares of such series or of any other series) and upon the
payment of dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the Company or any
subsidiary of any outstanding stock of the Company; and (viii) may
have such other relative, participating, optional or other special
rights, qualifications, limitations or restrictions thereof; all as
shall be stated in said resolution or resolutions providing for the
issue of such Preferred Stock. Shares of any series of Preferred
Stock which have been redeemed (whether through the operation of a
sinking fund or otherwise) or which, if convertible or exchangeable,
have been converted into or exchanged for shares of stock of any
other class or classes shall have the status of authorized and
unissued shares of Preferred Stock of the same series and may be
reissued as a part of the series of which they were originally a part
or may be reclassified and reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the
Board of Directors or as part of any other series of Preferred Stock,
all subject to the conditions or restrictions on issuance set forth
in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preferred Stock.
A. Series G Stock. The designated powers, preferences and relative
participating, optional or other special rights and the qualifications,
limitations or restrictions thereof, of 4,800,000 shares of a series of
Preferred Stock are as follows:
(1) Designation. The designation of this series of Preferred
Stock shall be "$6.00 Cumulative Convertible Preferred Stock, Series
G (With $1.00 Par Value)" (hereinafter called the "Series G Stock").
(2) Dividends. The holders of shares of the Series G Stock
shall be entitled to receive, when and as declared by the Board of
Directors, dividends in cash in the amount of $6.00 per share per
annum, payable quarterly on the 15th day of January, April, July and
October in each year, commencing April 15, 1987 (each of the
quarterly periods ending on the 15th day of such months,
respectively, being hereinafter called a "dividend period");
provided, however, that the holders of shares of Series G Stock shall
be entitled to receive, when and as declared by the Board of
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Directors, dividends in cash in the amount of $3.75 per share per
annum, and such dividends shall accrue at such rate from the Date of
Accrual to January 14, 1987. Dividends on shares of the Series G
Stock shall be cumulative from the Date of Accrual with respect to
such shares (whether or not there shall be net profits or net assets
of the Company legally available for the payment of such dividends)
so that, if at any time Full Cumulative Dividends upon the Series G
Stock to the end of the last completed dividend period shall not have
been paid, or declared and a sum sufficient for payment thereof set
apart, the amount of the deficiency in such dividends shall be fully
paid, but without interest, before any dividend shall be declared or
paid or any other distribution ordered or made upon, or any purchase
or redemption made of, any stock ranking as to dividends or upon
liquidation junior to the Series G Stock (other than a dividend
payable in such junior stock, or a purchase or redemption made by
issue or delivery of such junior stock); provided, however, that any
moneys theretofore deposited in any sinking fund with respect to any
preferred stock of the Company in compliance with the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the terms of
such sinking fund regardless of whether at the time of such
application Full Cumulative Dividends upon shares of the Series G
Stock outstanding to the end of the last completed dividend period
shall have been paid or declared and set apart for payment. All
dividends upon the shares of the Series G Stock and any other
preferred stock ranking on a parity as to dividends with the Series G
Stock shall be declared pro rata, so that the amounts of dividends
declared per share on the Series G Stock and such other preferred
stock, shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of the Series G Stock and
such other preferred stock bear to each other. Holders of shares of
the Series G Stock shall not be entitled to any dividends, whether
payable in cash, property or stock, in excess of Full Cumulative
Dividends.
(3) Rights of Redemption. The shares of the Series G Stock
shall be subject to redemption as follows:
(a) Optional Redemption. Subject to subparagraph (b) of
this paragraph (3), the shares of the Series G Stock may be
redeemed at the option of the Company, in whole or in part, at
any time or from time to time upon not less than 30 days' prior
notice to the holders of record of shares of the Series G Stock
to be so redeemed, sent by first class mail, postage prepaid, to
each registered holder of shares of the Series G Stock at his
address appearing on the Series G Stock register maintained by
the Company, at the redemption price of $50.00 per share, plus
an amount equal to Accrued Dividends to and including the date
fixed for redemption of such shares (hereinafter called the
"Redemption Date").
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(b) Pro Rata Redemption or Redemption by Lot. If less
than all shares of the Series G Stock are to be redeemed
pursuant to subparagraph (a) of this paragraph (3), the shares
to be redeemed shall be selected (x) by lot or (y) pro rata so
that there shall be redeemed from each registered holder of such
shares that number of whole shares, as nearly as practicable to
the nearest share, as bears the same ratio to the total number
of shares of such Series held by such holder as the total number
of shares to be redeemed bears to the total number of shares of
the Series G Stock at the time outstanding. The determination
of whether such selection shall be made by lot or pro rata shall
be made by the Board of Directors. If the Board of Directors
shall determine to redeem less than all shares of the Series G
Stock by lot, the selection by lot of the shares of the Series G
Stock shall be conducted by an independent bank or trust company
selected by the Board of Directors of the Company.
(c) Sinking Fund, Etc. Shares of the Series G Stock are
not subject or entitled to the benefit of a sinking fund. All
or a portion of the shares of the Series G Stock may be
purchased by the Company from time to time upon the best terms
obtainable.
(d) Effect of Redemption. Unless default be made in the
payment in full of the redemption price and any accumulated and
unpaid dividends, dividends on the shares of Series G Stock
called for redemption shall cease to accumulate on the
Redemption Date, and all rights of the holders of such shares as
stockholders of the Company by reason of the ownership of such
shares shall cease on the Redemption Date, except the right to
receive the amount payable upon redemption of such shares on
presentation and surrender of the respective certificates
representing such shares. After the Redemption Date, such
shares shall not be deemed to be outstanding and shall not be
transferable on the books of the Company except to the Company.
(e) Receipt of Redemption Price. At any time on or after
the Redemption Date, the respective holders of record of shares
of Series G Stock to be redeemed shall be entitled to receive
the redemption price upon actual delivery to the Company of
certificates for the shares to be redeemed, such certificates,
if required by the Company, to be properly stamped for transfer
and duly endorsed in blank or accompanied by proper instruments
of assignment and transfer thereof duly executed in blank.
(f) Return of Deposits, Etc. Any moneys deposited with
the transfer agent, or other redemption agent, for the
redemption of any shares of Series G Stock which shall not be
claimed after five years from the Redemption Date shall be
repaid to the Company by such agent on demand, and the holder of
any such shares of Series G Stock shall thereafter look only to
the Company for any payment to which such holder may be
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entitled. Any interest accrued on moneys so deposited shall
belong to the Company and shall be paid to it from time to time
on demand.
(4) Rights on Liquidation, Dissolution, Winding Up.
(a) In the event of any involuntary liquidation, dissolution or
winding up of the Company, the holders of shares of the Series G
Stock then outstanding shall be entitled to be paid out of the assets
of the Company available for distribution to its stockholders, before
any payment shall be made to the holders of any class of capital
stock of the Company ranking junior upon liquidation to the Series G
Stock, an amount equal to $50 per share plus an amount equal to all
Accrued Dividends thereon to and including the date of payment.
(b) In the event of any voluntary liquidation, dissolution or
winding up of the Company, the holders of shares of the Series G
Stock then outstanding shall be entitled to be paid out of the assets
of the Company available for distribution to its stockholders, before
any payment shall be made to the holders of any class of capital
stock of the Company ranking junior upon liquidation to the Series G
Stock, an amount per share equal to the then applicable redemption
price specified in subparagraph (a) of paragraph (3) of this
Section B regarding Series G Stock, plus in each case an amount equal
to all Accrued Dividends thereon to and including the date of
payment. The merger or consolidation of the Company into or with any
other corporation or the merger or consolidation of any other
corporation into or with the Company shall not in any event be
considered a dissolution, liquidation or winding up of the Company
under this paragraph (4).
(c) In the event the assets of the Company available for
distribution to the holders of shares of Series G Stock upon any
involuntary or voluntary liquidation, dissolution or winding up of
the Company shall be insufficient to pay in full all amounts to which
such holders are entitled pursuant to subparagraph (a) or (b), as the
case may be, of this paragraph (4), no such distribution shall be
made on account of any shares of any other class or series of
preferred stock ranking on a parity with the shares of Series G Stock
upon liquidation unless proportionate distributive amounts shall be
paid on account of the shares of Series G Stock, ratably, in
proportion to the full distributive amounts to which the holders of
all such parity shares are respectively entitled upon such
liquidation, dissolution or winding up.
(5) Voting. The shares of the Series G Stock shall not have any
voting powers, either general or special, except as required by applicable
law and as follows:
(a) Without the affirmative. vote or consent of the holders of
at least two-thirds of the number of shares of Series G Stock at the
time outstanding, voting or consenting (as the case may be)
separately as a class, given in person or by proxy, either in writing
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or by resolution adopted at a special meeting called for the purpose,
the Company shall not (i) create any preferred stock ranking prior to
the Series G Stock as to dividends or upon liquidation, or securities
convertible into stock ranking prior to the Series G Stock as to
dividends or upon liquidation or (ii) amend, alter or repeal any of
the preferences, special rights or powers of the holders of the
Series G Stock so as adversely to affect such preferences, special
rights or powers.
(b) Whenever dividends payable on any series of Preferred Stock
shall be in default in an aggregate amount equivalent to six full
quarterly dividends on all shares of such series at the time
outstanding, the number of directors constituting the Board of
Directors of the Company shall be increased by two, and the holders
of Preferred Stock shall have, in addition to any other voting
rights, the exclusive and special right, voting separately as a class
without regard to series, to elect two persons to fill such newly
created directorships. Whenever such right of holders of shares of
Preferred Stock shall have vested, it may be exercised initially
either at a special meeting of such holders called as provided below,
or at any annual meeting of stockholders, and thereafter at annual
meetings of stockholders. The right of holders of shares of
Preferred Stock voting separately as a class to elect members of the
Board of Directors as aforesaid shall continue until such time as all
dividends accumulated on all series of Preferred Stock shall have
been paid in full, at which time the special right of the holders of
shares of Preferred Stock so to vote separately as a class for the
election of directors shall terminate, subject to revesting in the
event of each and every subsequent default in an aggregate amount
equivalent to six full quarterly dividends. For purposes only of
this subparagraph (b), each holder of Series G Stock shall be
entitled to cast one-half vote for each share of Series G Stock held
by such holder.
At any time when such special voting power shall have vested in
the holders of shares of Preferred Stock as provided in this
subparagraph (b), a proper officer of the Company shall, upon written
request of the holders of record of at least 10% of the number of
shares of Preferred Stock at the time outstanding, regardless of
series, addressed to the Secretary of the Company, call a special
meeting of the holders of shares of Preferred Stock and of any other
class of stock having voting power, for the purpose of electing
directors. Such meeting shall be held at the earliest practicable
date at the principal office of the Company. If such meeting shall
not be called by a proper officer of the Company within 20 days after
personal service of said written request upon the Secretary of the
Company, or within 20 days after mailing the same within the United
States of America by registered mail addressed to the Secretary of
the Company at its principal office, then the holders of record of at
least 10% of the number of shares of Preferred Stock at the time
outstanding, regardless of series, may designate in writing one of
their number to call such meeting at the expense of the Company, and
such meeting may be called by such person so designated upon the
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notice required for annual meetings of stockholders and shall be held
at said principal office. Any holder of shares of Preferred Stock so
designated shall have access to the stock books of the Company for
the purpose of causing meetings of stockholders to be called pursuant
to these provisions. Notwithstanding the provisions of this
subparagraph (b), no such special meeting shall be called during the
90 days immediately preceding the date fixed for the next annual
meeting of stockholders.
At any meeting held for the purpose of electing directors at
which the holders of shares of Preferred Stock shall have the special
right, voting separately as a class, to elect directors as provided
in this subparagraph (b), the presence, in person or by proxy, of the
holders of 51% of the number of shares of Preferred Stock at the time
outstanding shall be required to constitute a quorum of such class
for the election of any director by the holders of the Preferred
Stock as a class, each share of Series G Stock counting, for purposes
only of determining the presence of such a quorum, as one-half share
of Preferred Stock. At any such meeting or adjournment thereof, (i)
the absence of a quorum of Preferred Stock shall not prevent the
election of directors other than those to be elected by the holders
of shares of Preferred Stock voting as a class and the absence of a
quorum for the election of such other directors shall not prevent the
election of the directors to be elected by holders of shares of
Preferred Stock voting as a class and (ii) in the absence of either
or both such-quorums, a majority of the holders present in person or
by proxy of the stock or stocks which lack a quorum shall have power
to adjourn the meeting for the election of directors which they are
entitled to elect from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
During any period the holders of shares of Preferred Stock have
the right to vote as a class for directors as provided in this
subparagraph (b), (i) the directors so elected by the holders of the
Preferred Stock shall continue in office until termination of the
right of the holders of the Preferred Stock to vote as a class for
directors, and (ii) any vacancies in the Board of Directors shall be
filled only by vote of a majority (which majority may consist of only
a single director) of the remaining directors theretofore elected by
the holders of the class or classes of stock which elected the
director whose office shall have become vacant.
(6) Conversion Rights. The holders of shares of the Series G
Stock shall have the right, at their option, to convert each share of
the Series G Stock into one and one-third shares of Common Stock of
the Company at any time on and subject to the following terms and
conditions:
(a) The shares of the Series G Stock shall be convertible at
the office of any transfer agent for the Series G Stock, and at such
other office or offices, if any, as the Board of Directors may
designate, into fully paid and nonassessable shares (calculated as to
each conversion to the nearest 1/100th of a share) of Common Stock of
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the Company, at the conversion price, determined as hereinafter
provided, in effect at the time of conversion, each share of the
Series G Stock being taken at $50.00 for the purpose of such
conversion. The price at which shares of Common Stock shall be
delivered upon conversion (herein called the "conversion price")
shall be initially $37.50 per share of Common Stock. The conversion
price shall be adjusted as provided in subparagraph (d) of this
paragraph (6).
(b) In order to convert shares of the Series G Stock into
Common Stock the holder thereof shall surrender at any office
hereinabove mentioned the certificate or certificates therefor, duly
endorsed to the Company or in blank, and give written notice to the
Company at said office that such holder elects to convert such
shares. No payment or adjustment shall be made upon any conversion
on account of any dividends accrued on the shares of the Series G
Stock surrender for conversion or on account of any dividends on the
Common Stock issued upon such conversion.
Shares of the Series G Stock shall be deemed to have been
converted immediately prior to the close of business on the day of
the surrender of such shares for conversion in accordance with the
foregoing provisions, and the person or persons entitled to receive
the Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such Common Stock at
such time. As promptly as practicable on or after the conversion
date, the Company shall issue and shall deliver at said office a
certificate or certificates for the number of full shares of Common
Stock issuable upon such conversion, together with a cash payment in
lieu of any fraction of a share, as hereinafter provided, to the
person or persons entitled to receive the same. In case shares of
the Series G Stock are called for redemption, the right to convert
such shares shall cease and terminate at the close of business on the
Redemption Date, unless default shall be made in payment of the
redemption price.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of the Series G Stock, but, instead of any
fraction of a share of Common Stock which would otherwise be issuable
in respect of the aggregate number of shares of the Series G Stock
surrendered for conversion at one time by the same holder, the
Company shall pay a cash adjustment of such fraction in an amount
equal to the same fraction of the Closing Date Price on the date on
which such shares of the Series G Stock were duly surrendered for
conversion, or, if such date is not a Trading Day, on the next
Trading Day.
(d) The conversion price shall be adjusted from time to time as
follows:
(I) In case the Company shall (i) pay a dividend or make a
distribution on its outstanding shares of Common Stock in Common
Stock, (ii) subdivide its outstanding shares of Common Stock,
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(iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) issue any shares by reclas-
sification of its shares of Common Stock, the conversion price
in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision,
combination or reclassification shall be adjusted so that the
holder of any shares of the Series G Stock surrendered for
conversion after such time shall be entitled to receive the
number of shares of capital stock of the Company which he would
have owned or been entitled to receive had such shares of the
Series G Stock been converted immediately prior to such time.
(II) In case the Company shall hereafter issue rights or
warrants to all holders of its Common Stock entitling them (for
a period expiring within forty-five days after the record date
mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price
per share--as determined pursuant to clause (IV) of this
subparagraph (d)--on the record date mentioned below, the
conversion price shall be adjusted so that the same shall equal
the price determined by multiplying the conversion price in
effect immediately prior to the date of issuance of such rights
or warrants by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on the record date
mentioned below plus the number of shares of Common Stock which
the aggregate offering price of the total number of shares of
Common Stock so offered would purchase at such current market
price and of which the denominator shall be the number of shares
of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall become effective at the opening
of business on the business day next following the record date
for the determination of stockholders entitled to receive such
rights or warrants; and to the extent that shares of Common
Stock are not delivered after the expiration of such rights or
warrants, the conversion price shall be readjusted (but only
with respect to shares of the Series C Stock converted after
such expiration) to the conversion price which would then be in
effect had the adjustments made upon the distribution of such
rights or warrants been made upon the basis of delivery of only
the number of shares of Common Stock actually delivered. No
adjustment in the conversion price shall be required or made
under this clause (II) or clause (III) immediately below or
otherwise under this paragraph (6) in respect of any right
granted by the Company to all holders of its Common Stock to
purchase additional shares of Common Stock from the Company at a
discount from the current market price per share of Common Stock
by reinvestment of dividends on Common Stock if either (i) such
discount does not exceed 6% of such current market price or (ii)
the holders of the Series G Stock shall be entitled to purchase
shares of Common Stock from the Company at the same discount by
reinvestment of dividends on the Series G Stock.
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(III) In case the Company shall distribute to all holders
of its Common Stock evidences of its indebtedness or assets--
excluding any cash dividend or distributions and dividends
referred to in clause (I) of this paragraph (6)--or subscription
rights or warrants (excluding those referred to in clause (II)
immediately above), then in each such case the conversion price
shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect
immediately prior to the date of such distribution by a fraction
of which the numerator shall be the current market price per
share (determined as provided in clause (IV) immediately below)
of the Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors
of the Company, whose determination shall be conclusive) of the
portion of the assets or evidences of indebtedness so
distributed or of such subscription rights or warrants
applicable to one share of Common Stock, and the denominator
shall be such current market price per share of the Common
Stock. Such adjustment shall become effective on the opening of
business on the business day next following the record date for
the determination of stockholders entitled to receive such
distribution.
(IV) For the purpose of any computation under clause (II) or
(III) immediately above, the current market price per share of Common
Stock on any date shall be deemed to be the average of the daily
Closing Price for the thirty consecutive Trading Days selected by the
Company commencing not more than fortyfive Trading Days before the
day in question.
(V) In any case in which this paragraph (6) shall require that
an adjustment as a result of any event become effective at the
opening of business on the business day next following a record date,
the Company may elect to defer until after the occurrence of such
event (i) issuing to the holder of any shares of the Series G Stock
converted after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock issuable upon
such conversion on the basis of the conversion price prior to
adjustment and (ii) paying to such holder any amount in cash in lieu
of a fractional share of Common Stock pursuant to subparagraph (c) of
this paragraph (6); and, in lieu of the shares the issuance of which
is so deferred, the Company shall issue or cause its transfer agents
to issue due bills or other appropriate evidence of the right to
receive such shares.
(VI) Any adjustment in the conversion price otherwise required
by this paragraph (6) to be made may be postponed up to, but not
beyond, three years from the date on which it would otherwise be
required to be made provided that such adjustment (plus any other
adjustments postponed pursuant to this clause (VI) and not
theretofore made) would not require an increase or decrease of more
than $0.50 in such price and would not, if made, entitle the holders
PAGE 11
of all then outstanding shares of the Series G Stock upon conversion
to receive additional shares of Common Stock equal in the aggregate
to 3% or more of the then issued and outstanding shares of Common
Stock. All calculations under this paragraph (6) shall be made to
the nearest cent or to the nearest 1/100 of a share, as the case may
be.
(e) Whenever the conversion price is adjusted as herein
provided:
(I) the Company shall compute the adjusted conversion
price in accordance with this paragraph (6) and shall prepare a
certificate signed by the Treasurer of the Company setting forth
the adjusted conversion price, and such certificate shall
forthwith be filed with the transfer agent or agents for the
Series G Stock; and
(II) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall,
as soon as practicable, be mailed to the holders of record of
the outstanding shares of the Series G Stock.
(f) In case of any consolidation of the Company with, or merger
of the Company with or into, any other corporation (other than a
merger in which the Company is the surviving corporation and which
does not result in any reclassification or change of the outstanding
shares of the Company into which shares of the Series G Stock are
then convertible), or in case of any conveyance or transfer of the
property and assets of the Company substantially as an entirety, each
share of Series G Stock shall thereafter be convertible into the
number and kind of shares of stock and other securities and cash,
property and rights receivable upon such consolidation, merger,
conveyance or transfer by a holder of the number and kind of shares
of the Company into which such shares of Series G Stock might have
been converted immediately prior to such consolidation, merger,
conveyance or transfer. The above provisions of this subparagraph
(f) shall similarly apply to successive consolidations, mergers,
conveyances or transfers.
(g) In case:
(I) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash
out of its retained earnings; or
(II) the Company shall authorize the granting to the
holders of its Common Stock of rights to subscribe for or
purchase any shares of capital stock of any class or of any
other rights; or
(III) of any reclassification of the capital stock of the
Company (other than a subdivision or combination of its
outstanding shares of Common Stock), or of any consolidation or
PAGE 12
merger to which the Company is a party and for which approval of
any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the
Company; or
(IV) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be mailed to the transfer agent or
agents for the Series G Stock and to the holders of record of the
outstanding shares of the Series G Stock at least 20 days--or 10 days
in any case specified in clause (I) or (II) of this subparagraph
(g)--prior to the applicable record date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights, or, if a record is
not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or
winding up is expected to become effective, and the date as of which
it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
(h) The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued
Common Stock, for the purpose of effecting the conversion of the
shares of the Series G Stock, the full number of shares of Common
Stock then deliverable upon the conversion of all shares of the
Series G Stock then outstanding.
(i) The Company will pay any and all taxes that may be payable
in respect of the issuance or delivery of shares of Common Stock on
conversion of shares of this Series pursuant hereto. The Company
shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that in which the shares
of this Series so converted were registered, and no such issue or
delivery shall be made unless and until the person requesting such
issue has paid to the Company the amount of any such tax, or has
established, to the satisfaction of the Company, that such tax has
been paid.
(j) For the purpose of this paragraph (6) the term "Common
Stock" shall include any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, and which is not subject to redemption by
the Company. However, shares issuable on conversion of shares of the
Series G Stock shall include only shares of the class designated as
Common Stock of the Company as of the original date of issue of the
Series G Stock or shares of any class or classes resulting from any
PAGE 13
reclassification or reclassifications thereof and which have no
preference in respect of dividends or of amounts payable in the event
of any voluntary or involuntary liquidation, dissolution or winding
up of the Company and which are not subject to redemption by the
Company, provided that if at any time there shall be more than one
such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all
such reclassifications.
(k) As used in this paragraph (6), the term "Closing Price" on
any day shall mean the reported last sales price regular way on such
day or, in case no such sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in each case
on the New York Stock Exchange, or, if the Common Stock is not listed
or admitted to trading on such Exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted
to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for
that purpose; and the term "Trading Day" shall mean a date on which
the New York Stock Exchange (or any successor to such Exchange) is
open for the transaction of business.
(7) Definitions.
(a) The term "Accrued Dividends" shall mean Full Cumulative
Dividends to the date as of which Accrued Dividends are to be
computed, less the amount of all dividends paid, upon the relevant
shares of Series G Stock.
(b) The term "Date of Accrual" shall mean, as to any shares of
the Series G Stock issued, January 1, 1987.
(c) The term "Full Cumulative Dividends" shall mean (whether or
not in any dividend period, or any part thereof, in respect of which
such term is used there shall have been net profits or net assets of
the Company legally available for the payment of such dividends) that
amount which shall be equal to dividends at the full rate fixed for
the Series G Stock provided in paragraph (2) of this Section B
regarding Series G Stock for the period of time elapsed from the Date
of Accrual to the date as of which Full Cumulative Dividends are to
be computed (including an amount equal to the dividend at such rate
for any fraction of a dividend period included in such period of time
calculated on the basis of a 360-day year of 12 30-day months).
(d) The term "Preferred Stock" shall mean any Preferred Stock
created and issued under this Article Fourth; provided, however, that
for purposes only of subparagraph (b) of paragraph (5) of this
Section B regarding Series G Stock, each holder of Series G Stock
shall be entitled to cast one-half vote for each share of Series G
Stock held by such holder and for purposes of determining a quorum at
PAGE 14
any meeting held for the purpose of electing directors at which the
holders of Preferred Stock shall have this special right, voting
separately as a class, to elect directors as provided in such
subparagraph (b), each share of Series G Stock shall count, for
purposes of determining the presence of a quorum of such class at
such meeting, as one-half share of Preferred Stock. The term
"preferred stock" shall mean shares of any class of stock (including
Preferred Stock) if the holders of such class shall be entitled to
the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, in preference or priority to
the holders of shares of Common Stock.
(e) For the purposes hereof any stock of any class or classes
of the Company shall be deemed to rank (i) prior to shares of the
Series G Stock, either as to dividends or upon liquidation, if the
holders of such class or classes shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the
holders of shares of the Series G Stock; (ii) on a parity with shares
of the Series G Stock, either as to dividends or upon liquidation,
whether or not the dividend rates, dividend payment dates, or
redemption or liquidation prices per share thereof be different from
those of the Series G Stock, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
proportion to their respective dividend rate or liquidation prices,
without preference or priority of one over the other as between the
holders of such stock and the holders of shares of Series G Stock;
and (iii) junior to shares of the Series G Stock, either as to
dividends or upon liquidation, if such class shall be Common Stock or
if the holders of the Series G Stock shall be entitled to the receipt
of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of shares of such class of classes.
(f) The shares of the Series G Stock shall rank senior as to
the dividends and upon liquidation to the shares of the $120
Redeemable Convertible Preferred Stock, Series E (With $1.00 Par
Value) of the Company and to the shares of the Convertible Junior
Preference Stock, Series D (With $1.00 Par Value) of the Company.
(8) Retirement of Redeemed or Converted Shares, Etc. Shares of the
Series G Stock which have been (i) redeemed or (ii) converted into Common
Stock pursuant to the provisions of paragraph (6) of this Section B
regarding Series G Stock shall have the status of authorized and unissued
Preferred Stock.
II. Preference Stock. The Preference Stock may be issued from
time to time in one or more series of any number of shares, provided
that the aggregate number of shares issued and not canceled of any
and all such series shall not exceed the total number of shares of
Preference Stock hereinabove authorized, and with distinctive serial
designations, all as shall hereafter be stated and expressed in the
PAGE 15
resolution or resolutions providing for the issue of such Preference
Stock from time to time adopted by the Board of Directors pursuant to
authority so to do which is hereby vested in the Board of Directors.
Each series of Preference Stock (i) may have such voting powers, full
or limited, or may be without voting powers; (ii) may be subject to
redemption at such time or times and at such prices; (iii) may be
entitled to receive dividends (which may be cumulative or
noncumulative) at such rate or rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of stock;
(iv) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the corporation; (v) may be made
convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or
classes of stock of the corporation, at such price or prices or at
such rates of exchange, and with such adjustments; (vi) may be
entitled to the benefit of a sinking fund to be applied to the
purchase or redemption of shares of such series in such amount or
amounts; (vii) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the Company or any
subsidiary, upon the issue of any additional stock (including
additional shares of such series or of any other series) and upon the
payment of dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the Company or any
subsidiary of any outstanding stock of the Company; and (viii) may
have such other relative, participating, optional or other special
rights, qualifications, limitations or restrictions thereof; all as
shall be stated in said resolution or resolutions providing for the
issue of such Preference Stock. Shares of any series of Preference
Stock which have been redeemed (whether through the operation of a
sinking fund or otherwise) or which, if convertible or exchangeable,
have been converted into or exchanged for shares of stock of any
other class or classes shall have the status of authorized and
unissued shares of Preference Stock of the same series and may be
reissued as a part of the series of which they were originally a part
or may be reclassified and reissued as part of a new series of
Preference Stock to be created by resolution or resolutions by the
Board of Directors or as part of any other series of Preference
Stock, all subject to the conditions or restrictions on issuance set
forth in the resolution or resolutions adopted by the Board of
Directors providing for the issue of any series of Preference Stock.
A. Series A Stock. The designated powers, preferences and relative
participating, optional or other special rights and the
qualifications, limitations or restrictions thereof, of one (1) share
of a series of Preference Stock are as follows:
(1) Designation. The designation of this series of
Preference Stock shall be "Nonconvertible Junior Preference
Stock, Series A (With Par Value of $1.00)" (hereinafter called
the "Series A Stock").
PAGE 16
(2) Dividends. The holder of the Series A Stock shall not
be entitled to receive dividends with respect to the Series A
Stock.
(3) Rights of Redemption. The Series A Stock shall be
subject to redemption as follows:
(a) Optional Redemption. At any time after the date
of the earliest to occur of (i) the passage of twelve
consecutive calendar months at all times during which the
Supplemental Benefit Trust holds less than 5% of the total
number of then outstanding shares of Parent Common Stock,
(ii) the date on which the Supplemental Benefit Program
terminates and (iii) the Profit Sharing Cessation Date, the
Series A Stock may be redeemed at the option of the Company
at any time upon not less than five days' prior notice to
the holder of record of the Series A Stock sent by first
class mail, postage prepaid, to such holder at its address
appearing on the Series A Stock register maintained by the
Company, at a redemption price of $1.00 (hereinafter called
the "Series A Redemption Date").
(b) Effect of Redemption. All rights of the holder
of Series A Stock as a stockholder of the Company by reason
of the ownership of Series A Stock shall cease on the
Series A Redemption Date, except the right to receive the
amount payable upon redemption of such share on presenta-
tion and surrender of the certificate representing such
share. After the Series A Redemption Date, such share
shall not be deemed to be outstanding.
(4) Rights on Liquidation, Dissolution, Winding Up.
(a) Liquidation Payment. In the event of any
involuntary liquidation, dissolution or winding up of the
Company, the holder of the Series A Stock (if then out-
standing) shall be entitled to be paid out of the assets of
the Company available for distribution to its stockholders,
before any payment shall be made to the holders of any
class of capital stock of the Company ranking junior upon
liquidation to the Series A Stock, an amount equal to $1.00
per share. The merger or consolidation of the Company into
or with any other corporation or the merger or
consolidation of any other corporation into or with the
Company shall not in any event be considered a dissolution,
liquidation or winding up of the Company under this
paragraph (4).
PAGE 17
(b) Proportionate Distribution. In the event the assets
of the Company available for distribution to the holder of the
Series A Stock upon any involuntary or voluntary liquidation,
dissolution or winding up of the Company shall be insufficient
to pay in full all amounts to which such holder is entitled
pursuant to subparagraph (a) of this paragraph (4), no such
distribution shall be made on account of any shares of any other
class or series of preference stock ranking on a parity with the
Series A Stock upon liquidation unless proportionate
distributive amounts shall be paid on account of the Series A
Stock, ratably, in proportion to the full distributive amounts
to which the holders of all such parity shares are respectively
entitled upon such liquidation, dissolution or winding up.
(5) Voting. The Series A Stock shall not have any voting
powers, either general or special, except as required by
applicable law and as follows:
(a) Change of Priority or Rights. Without the
affirmative vote or consent of the holder of the Series A
Stock, voting or consenting (as the case may be) separately
as a class, given in person or by proxy, either in writing
or by resolution adopted at a special meeting called for
the purpose, the Company shall not (i) change the number of
authorized shares of the Series A Stock or (ii) amend this
Certificate of Incorporation or take any other action
(including, without limitation, a merger or consolidation
to which the Company is a constituent party) which would
have the effect of eliminating the Series A Stock or of
amending, altering or repealing any of the preferences,
special rights or powers of the holder of the Series A
Stock so as adversely to affect such preferences, special
rights or powers.
(b) Election of Directors. For so long as the
Supplemental Benefit Trust holds 20% or more of the total
number of then outstanding shares of Parent Common Stock,
the number of directors constituting the Board of Directors
of the Company shall be increased by two, and the holder of
the Series A Stock shall have, in addition to any other
voting rights, the exclusive and special right, voting
separately as a class, to elect two persons to serve as
directors of the Company (one of whom shall be designated
the "First Designee," and the other of whom shall be
designated the "Second Designee") to fill such two direc-
torships. Except for the involuntary resignation of any
such director under clauses (i) or (ii) of this first
paragraph of this subparagraph (b) or the removal of any
such director by the holder of the Series A Stock, each
director elected by the holder of the Series A Stock shall
have a one year term of office. The right of the holder of
Series A Stock to elect directors may be exercised by
written consent of such holder. The right of the holder of
PAGE 18
the Series A Stock voting separately as a class to elect
two members of the Board of Directors as aforesaid shall
continue until such time as the Supplemental Benefit Trust
holds less than 20% of the total number of then outstanding
shares of Parent Common Stock. At such time, the special
right of the holder of the Series A Stock to vote sepa-
rately as a class for the election of directors shall be
subject to the following restrictions:
(i) Upon the earlier to occur of (A) the date on
which the Supplemental Benefit Trust has held less
than 20% but 19% or more of the total number of then
outstanding shares of Parent Common Stock at all times
for six consecutive months and (B) the date on which
the Supplemental Benefit Trust holds less than 19% of
the total number of then outstanding shares of Parent
Common Stock, the holder of the Series A Stock shall
be entitled to elect only one director in total and
the Second Designee shall be deemed to have resigned
as a director effective immediately without any
further action on such person's part; and
(ii) Notwithstanding anything to the contrary
contained in clause (i) immediately above, upon the
earlier to occur of (A) the date on which the
Supplemental Benefit Trust has held less than 10% but
9% or more of the total number of then outstanding
shares of Parent Common Stock at all times for six
consecutive months and (B) the date on which the
Supplemental Benefit Trust holds less than 9% of the
total number of then outstanding shares of Parent
Common Stock, the holder of the Series A Stock shall
not be entitled to elect any directors and each
remaining director elected by such holder shall be
deemed to have resigned as a member of the Board of
Directors effective immediately without further action
on such person's part.
The special right of the holder of the Series A Stock
to vote separately as a class for the election of directors
shall be subject to revesting as follows:
(i) Upon the earlier to occur of (A) the date on
which the Supplemental Benefit Trust has held more
than 10% but not more than 11% of the total number of
then outstanding shares of Parent Common Stock at all
times for six consecutive months and (B) the date on
which the Supplemental Benefit Trust holds more than
11% of the total number of then outstanding shares of
Parent Common Stock, the right of the holder of
Series A Stock to elect a total of one director shall
vest immediately; and
PAGE 19
(ii) Notwithstanding anything to the contrary
contained in clause (i) immediately above, upon the
earlier to occur of (A) the date on which the
Supplemental Benefit Trust has held more than 20% but
not more than 21% of the total number of then
outstanding shares of Parent Common Stock at all times
for six consecutive months and (B) the date on which
the Supplemental Benefit Trust holds more than 21% of
the total then outstanding shares of Parent Common
Stock, the right of the holder of Series A Stock to
elect a total of two directors shall vest immediately.
For purposes of this subparagraph (b), all calcu-
lations of the Supplemental Benefit Trust's holdings of the
then outstanding shares of Parent Common Stock shall be
made as if the Common Stock and Class B Common were a
single class.
At any time when the holder of the Series A Stock has
the right to elect directors as provided in this
subparagraph (b), (i) such holder shall have the exclusive
right to remove the First Designee and/or the Second
Designee, with or without cause, from time to time and
elect their successors and (ii) any vacancies in the seats
held by the First Designee or the Second Designee shall be
filled only by a vote of the holder of the Series A Stock.
(6) Conversion Rights. The holder of the share of the
Series A Stock shall have no conversion rights with respect to
such share.
(7) Nontransferability. The Series A Stock will be issued
to the Supplemental Benefit Trust and the Series A Stock and any
rights thereunder shall be nontransferable. Any attempted
transfer shall be void and of no effect. The Company shall
place on the certificate representing any issued share of the
Series A Stock a legend consistent with the provisions hereof.
(8) Definitions.
(a) Profit Sharing Cessation Date. The term "Profit
Sharing Cessation Date" shall have the meaning assigned to
such term in the Settlement Agreement.
(b) Settlement Agreement. The term "Settlement
Agreement" shall mean the Settlement Agreement, dated as of
March 31, 1993, and the exhibits thereto, in the class
action of Shy, et al. v. Navistar, (Civil Action No. C-3-
92-333) (S.D.O.), as any of the same may be amended from
time to time in accordance with the terms thereof. The
Company shall provide a copy of the Settlement Agreement to
any holder of shares of its stock upon request by such
holder.
PAGE 20
(c) Supplemental Benefit Program. The term
"Supplemental Benefit Program" shall have the meaning
assigned to such term in the Settlement Agreement.
(d) Supplemental Benefit Trust. The term
"Supplemental Benefit Trust" shall have the meaning
assigned to such term in the Settlement Agreement.
(9) Rank of Series A Stock. The share of the Series A
Stock shall rank junior upon liquidation to (i) the shares of
the Series G Stock, (ii) the shares of the Convertible Junior
Preference Stock, Series D (With Par Value of $1.00) (the
"Series D Stock"), and (iii) any other series of Preferred Stock
or Preference Stock (other than the Nonconvertible Junior
Preference Stock, Series B (With Par Value of $1.00) of the
Company) (the "Series B Stock") authorized or designated after
the initial date of issuance of the Series A Stock. The share
of the Series A Stock shall rank on a parity upon liquidation
with the Series B Stock. The share of the Series A Stock shall
rank senior upon liquidation to the shares of the Parent Common
Stock.
(10) Retirement of Redeemed Shares, Etc. When redeemed,
the share of the Series A Stock shall have the status of
authorized and unissued Preference Stock.
(11) No Fractional Shares. No fractional shares of
Series A Stock shall be issued.
(12) Stock Calculations. In making any calculations with
respect to holdings or ownership of the Company's stock, the
Company's stock records shall be conclusive evidence of such
holdings and ownership.
B. Series B Stock. The designated powers, preferences and relative
participating, optional or other special rights and the
qualifications, limitations or restrictions thereof, of one (1) share
of a series of Preference Stock are as follows:
(1) Designation. The designation of this series of
Preference Stock shall be "Nonconvertible Junior Preference
Stock, Series B (With Par Value of $1.00)" (referred to herein
as the "Series B Stock").
(2) Dividends. The holder of the share of the Series B
Stock shall not be entitled to receive dividends with respect to
the Series B Stock.
(3) Rights of Redemption. The Series B Stock shall be
subject to redemption as follows:
(a) Optional Redemption. At any time after the
holder of Series B Stock has not been entitled to vote
separately as a class to elect a director at any time for
PAGE 21
five consecutive years, the Series B Stock may be redeemed
at the option of the Company, in whole or in part, at any
time or from time to time upon not less than five days'
prior notice to the holder of record of the Series B Stock
sent by first class mail, postage prepaid, to such holder
at its address appearing on the Series B Stock register
maintained by the Company, at a redemption price of $1.00
(hereinafter called the "Series B Redemption Date").
(b) Effect of Redemption. All rights of the holder
of Series B Stock as a stockholder of the Company by reason
of the ownership of Series B Stock shall cease on the
Series B Redemption Date, except the right to receive the
amount payable upon redemption of such share on presenta-
tion and surrender of the certificate representing such
share. After the Series B Redemption Date, such share
shall not be deemed to be outstanding.
(4) Rights on Liquidation, Dissolution, Winding Up.
(a) Liquidation Payment. In the event of any
involuntary liquidation, dissolution or winding up of the
Company, the holder of the Series B Stock (if then out-
standing) shall be entitled to be paid out of the assets of
the Company available for distribution to its stockholders,
before any payment shall be made to the holders of any
class of capital stock of the Company ranking junior upon
liquidation to the Series B Stock, an amount equal to $1.00
per share. The merger or consolidation of the Company into
or with any other corporation or the merger or
consolidation of any other corporation into or with the
Company shall not in any event be considered a dissolution,
liquidation or winding up of the Company under this
paragraph (4).
(b) Proportionate Distribution. In the event the
assets of the Company available for distribution to the
holder of the Series B Stock upon any involuntary or
voluntary liquidation, dissolution or winding up of the
Company shall be insufficient to pay in full all amounts to
which such holder is entitled pursuant to subparagraph (a)
of this paragraph (4), no such distribution shall be made
on account of any shares of any other class or series of
preference stock ranking on a parity with the Series B
Stock upon liquidation unless proportionate distributive
amounts shall be paid on account of the Series B Stock,
ratably, in proportion to the full distributive amounts to
which the holders of all such parity shares are
respectively entitled upon such liquidation, dissolution or
winding up.
PAGE 22
(5) Voting. The Series B Stock shall not have any voting
powers, either general or special, except as required by
applicable law and as follows:
(a) Change of Priority or Rights. Without the
affirmative vote or consent of the holder of the Series B
Stock, voting or consenting (as the case may be) separately
as a class, given in person or by proxy, either in writing
or by resolution adopted at a special meeting called for
the purpose, the Company shall not (i) change the number of
authorized shares of the Series B Stock or (ii) amend this
Certificate of Incorporation or take any other action
(including, without limitation, a merger or consolidation
to which the company is a constituent party) which would
have the effect of eliminating the Series B Stock or of
amending, altering or repealing any of the preferences,
special rights or powers of the holder of the Series B
Stock so as adversely to affect such preferences, special
rights or powers.
(b) Election of Director. Until the Fully Funded
Date, the number of directors constituting the Board of
Directors of the Company shall be increased by one, and the
holder of the Series B Stock shall have, in addition to any
other voting rights, the exclusive and special right,
voting separately as a class, to elect one person to fill
such newly created directorship. Except for the
involuntary resignation of any such director under this
subparagraph b or the removal of any such director by the
holder of the Series B Stock, the director elected by the
holder of the Series B Stock shall have a one year term of
office. The right of the holder of Series B Stock to elect
a director may be exercised by written consent of such
holder. On the Fully Funded Date, the special right of the
holder of the Series B Stock so to vote separately as a
class for the election of a director shall terminate
(subject to subsequent revesting as provided below) and the
director elected by the holder of the Series B Stock shall
be deemed to have resigned effective immediately without
any further action upon such person's part. Subsequent to
the Fully Funded Date, the special right of the holder of
Series B Stock to vote separately as a class for the
election of a director shall revest at any time when the
balance of the Employers' funding contribution held under
the Health Benefit Trust falls below 85% of the Fully
Funded Amount; provided, however, that such revested
special right of the holder of Series B Stock to vote
separately as a class for the election of a director shall
terminate (subject to revesting as provided by this
subparagraph (b)) if the balance of the Employers' funding
contribution held under the Health Benefit Trust rises
above 85% of the Fully Funded Amount.
PAGE 23
At any time when the holder of the Series B Stock has
the right to elect a director as provided in this
subparagraph (b), (i) such holder shall have the exclusive
right to remove such director, with or without cause, from
time to time and elect his or her successor and (ii) any
vacancies in the seat held by the director elected by the
holder of the Series B Stock shall be filled only by vote
of the holder of the Series B Stock.
(6) Conversion Rights. The holder of the share of the
Series B Stock shall have no conversion rights with respect to
such share.
(7) Nontransferability. The Series B Stock shall be
issued to the UAW and the Series B Stock and any rights
thereunder shall be nontransferable. Any attempted transfer
shall be void and of no effect. The Company shall place on the
certificate representing any issued share of the Series A Stock
a legend consistent with the provisions hereof.
(8) Definitions.
(a) Employers. The term "Employers" shall have the
meaning assigned to such term in the Settlement Agreement.
(b) Fully Funded Amount. The term "Fully Funded
Amount" shall have the meaning assigned to such term in the
Settlement Agreement.
(c) Fully Funded Date. The term "Fully Funded Date"
shall have the meaning assigned to such term in the
Settlement Agreement.
(d) Health Benefit Trust. The term "Health Benefit
Trust" shall have the meaning assigned to such term in the
Settlement Agreement.
(e) UAW. The term "UAW" shall have the meaning
assigned to such term in the Settlement Agreement.
(9) Rank of Series B Stock. The share of the Series B
Stock shall rank junior upon liquidation to (i) the shares of
the Series G Stock, (ii) the shares of the Series D Stock, and
(iii) any other series of Preferred or Preference Stock (other
than the Series A Stock) authorized or designated after the
initial date of issuance of the Series B Stock. The share of
the Series B Stock shall rank on a parity upon liquidation with
the Series A Stock. The share of the Series B Stock shall rank
senior upon liquidation to the shares of the Parent Common
Stock.
(10) Retirement of Redeemed Shares, Etc. When redeemed,
the share of the Series B Stock shall have the status of
authorized and unissued Preference Stock.
PAGE 24
(11) Fractional Shares. No fractional shares of Series B
Stock shall be issued.
(12) Stock Calculations. In making any calculations with
respect to holdings or ownership of the Company's stock, the
Company's stock records shall be conclusive evidence of such
holdings and ownership.
C. Series D Stock. The designated powers, preferences and relative
participating, optional or other special rights and the qualifications,
limitations or restrictions thereof, of 3,000,000 shares of a series of
Preference Stock are as follows:
(1) Designation. The designation of this series of Preference
Stock shall be "Convertible Junior Preference Stock, Series D (With
Par Value of $1.00)" (referred to herein as the "Series D Stock").
(2) Dividends. The holders of shares of the Series D Stock
shall not be entitled to receive any dividends unless cash dividends
are declared on the shares of stock issuable upon conversion of the
Series D Stock (herein called "conversion stock"). In the event any
cash dividend is declared on the shares of conversion stock,
following the record date for such dividend the holders of shares of
the Series D Stock shall be entitled to receive, when, as, and to the
extent declared by the Board of Directors, a dividend in cash in an
amount per share equal to 120% of the cash dividend per share
declared on the shares of conversion stock multiplied by the number
of shares of conversion stock which, as of such record date, is
deliverable on the Conversion Date upon the conversion of a share of
Series D Stock. If at any time after the right to receive such
dividend shall have accrued such dividend shall not have been paid,
or declared and a sum sufficient for payment thereof set apart, the
amount of the deficiency in such dividend shall be fully paid, but
without interest, before the dividend on the conversion stock which
gave rise to the accrual of such dividend shall be paid and before
any other dividend shall be declared or paid or any other
distribution ordered or made upon, or any other purchase or
redemption made of, any stock ranking as to dividends or upon
liquidation junior to the Series D Stock (other than a dividend
payable in such junior stock or a purchase or redemption made by
issue or delivery of such junior stock); provided, however, that any
moneys theretofore deposited in any sinking fund with respect to any
preferred stock of the Company in compliance with the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the terms of
such sinking fund regardless of whether at the time of such appli-
cation Full Accrued Dividends upon shares of the Series D Stock shall
have been paid or declared and set apart for payment. At any time
when any dividend has accrued on the Series D Stock but has not been
paid, all dividends declared upon the shares of the Series D Stock
and any other preferred stock ranking on a parity as to dividends
with the Series D Stock shall be declared pro rata, so that the
amounts of dividends declared per share on the Series D Stock and
PAGE 25
such other preferred stock shall in all cases bear to each other the
same ratio that accrued unpaid dividends per share on the shares of
the Series D Stock and such other preferred stock (determined
immediately prior to payment) bear to each other, provided that in
making such calculation, dividends accrued on such other parity stock
since the most recent January 15 or July 15 may be ignored. Holders
of shares of the Series D Stock shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of
Full Accrued Dividends.
(3) Rights of Redemption. The shares of the Series D Stock
shall be subject to redemption as follows:
(a) Optional Redemption. Subject to the succeeding
provisions of this subparagraph (a), the shares of the Series D
Stock may be redeemed at the option of the Company, in whole or
in part, at any time or from time to time upon not less than 30
days' prior notice to the holders of record of shares of the
Series D Stock to be so redeemed, sent by first class mail,
postage prepaid, to each registered holder of shares of the
Series D Stock at his address appearing on the Series D Stock
stock register maintained by the Company, at the redemption
price per share of $25.00, plus in each case an amount equal to
Unpaid Accrued Dividends to and including the date fixed for
redemption of such shares (hereinafter called a "Redemption
Date"). If less than all shares of the Series D Stock are to be
redeemed pursuant to this subparagraph (a), the shares to be
redeemed shall be selected pro rata so that there shall be
redeemed from each registered holder of such shares that number
of whole shares, as nearly as practicable to the nearest share,
as bears the same ratio to the total number of shares of such
Series held by such holder as the total number of shares to be
redeemed bears to the total number of shares of the Series D
Stock at the time outstanding.
(b) No Mandatory Redemption. The shares of the Series D
Stock shall not be subject to mandatory redemption.
(c) No Sinking Fund. Shares of the Series D Stock are not
subject or entitled to the benefit of a sinking fund.
(d) Effect of Redemption. Unless default be made in the
payment in full of the redemption price and any Accrued
Dividends: dividends on the shares of Series D Stock called for
redemption shall cease to accrue on the Redemption Date on which
such shares are to be redeemed; all rights of the holders of
such shares as stockholders of the Company by reason of the
ownership of such shares shall cease on such Redemption Date,
except the right to receive the amount payable upon redemption
of such shares on presentation and surrender of the respective
certificates representing such shares; and after such Redemption
Date, such shares shall not be deemed to be outstanding and
shall not be transferable on the books of the Company except to
the Company.
PAGE 26
(e) Receipt of Redemption Price. At any time on or after
a Redemption Date, the respective holders of record of shares of
Series D Stock to be redeemed on such Redemption Date shall be
entitled to receive the redemption price upon actual delivery to
the Company of certificates for the shares to be redeemed, such
certificates, if required by the Company, to be properly stamped
for transfer and duly endorsed in blank or accompanied by proper
instruments of assignment and transfer thereof duly executed in
blank.
(f) Return of Deposits. Any moneys deposited with the
transfer agent, or other redemption agent, for the redemption of
any shares of Series D Stock on a Redemption Date which shall
not be claimed after five years from such Redemption Date shall
be repaid to the Company by such agent on demand, and the holder
of any such shares of Series D Stock shall thereafter look only
to the Company for any payment to which such holder may be
entitled. Any interest accrued on moneys so deposited shall
belong to the Company and shall be paid to it from time to time
on demand.
(4) Rights on Liquidation, Dissolution, Winding up.
(a) Liquidation Payment. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company,
the holders of shares of the Series D Stock then outstanding shall be
entitled to be paid out of the assets of the Company available for
distribution to its stockholders, before any payment shall be made to
the holders of any class of capital stock of the Company ranking
junior upon liquidation to the Series D Stock, an amount equal to
$25.00 per share plus an amount equal to all Accrued Dividends
thereon as of the date of payment. The merger or consolidation of
the Company into or with any other corporation or the merger or
consolidation of any other corporation into or with the Company shall
not in any event be considered a liquidation, dissolution or winding
up of the Company under this paragraph (4).
(b) Proportionate Distribution. In the event the assets of the
Company available for distribution to the holders of shares of Series
D Stock upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to subparagraph
(a) of this paragraph (4), no such distribution shall be made on
account of any shares of any other class or series of preferred stock
ranking on a parity with the shares of Series D Stock upon
liquidation unless proportionate distributive amounts shall be paid
on account of the shares of Series D Stock, ratably, in proportion to
the full distributive amounts to which the holders of all such parity
shares are respectively entitled upon such liquidation, dissolution
or winding up.
(5) Voting. The shares of the Series D Stock shall not have any
voting powers, either general or special, except as required by applicable
law and as follows:
PAGE 27
(a) Change of Priority or Rights. Without the affirmative vote
or consent of the holders of at least two-thirds of the number of
shares of Series D Stock at the time outstanding, voting or
consenting (as the case may be) separately as a class, given in
person or by proxy, either in writing or by resolution adopted at a
special meeting called for the purpose, the Company shall not (i)
amend, alter or repeal any of the preferences, special rights or
powers of the holders of, the Series D Stock so as adversely to
affect such preferences, special rights or powers or (ii) increase
above 3,000,000 the aggregate number of shares constituting the
Series D Stock or issue or reissue any shares of Series D Stock
(other than for purposes of exchanges or transfers) in excess of the
first 3,000,000 shares issued. No vote or consent by the holders of
the Series D Stock shall be required as a condition to the creation
or issuance of any class or series of capital stock of the Company
(including, without limitation, capital stock which may rank senior
to, or on a parity with, the Series D Stock as to dividends or upon
liquidation or both).
(b) Default in Dividend Payments. Whenever dividends payable
on any series of Preference Stock shall be in default in an aggregate
amount equivalent to six full quarterly dividends on all shares of
such series at the time outstanding, the number of directors
constituting the Board of Directors of the Company shall be increased
by one and the holders of Preference Stock shall have, in addition to
any other voting rights, the exclusive and special right, voting
separately as a class without regard to series, to elect one person
to fill such newly created directorship. Whenever such right of
holders of Preference Stock shall have vested, it may be exercised
initially either at a special meeting of such holders called as
provided below, or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders. The right of holders
of shares of Preference Stock voting separately as a class to elect
one member of the Board of Directors as aforesaid shall continue
until such time as all dividends accumulated on all series of
Preference Stock shall have been paid in full, at which time the
special right of the holders of shares of Preference Stock so to vote
separately as a class for the election of directors shall terminate,
subject to revesting in the event of each and every subsequent
default in an aggregate amount equivalent to six full quarterly
dividends.
At any time when such special voting power shall have vested in
the holders of Preference Stock as provided in this subparagraph (b),
a proper officer of the Company shall, upon the written request of
the holders of record of at least 10% of the number of shares of
Preference Stock at the time outstanding and entitled to vote,
regardless of series, addressed to the Secretary of the Company, call
a special meeting of the holders of shares of Preference Stock and of
any other class of stock having voting power, for the purpose of
electing directors. Such meeting shall be held at the earliest
practicable date at the principal office of the Company. If such
meeting shall not be called by a proper officer of the Company within
PAGE 28
20 days after personal service of said written request upon the
Secretary of the Company, or within 20 days after mailing the same
within the United States of America by registered mail addressed to
the Secretary of the Company at its principal office, then the
holders of record of at least 10% of the number of shares of
Preference Stock at the time outstanding and entitled to vote,
regardless of series, may designate in writing one of their number to
call such meeting at the expense of the Company, and such meeting may
be called by such person so designated upon the notice required for
annual meetings of stockholders and shall be held at said principal
office. Any holder of shares of Preference Stock so designated shall
have access to the stock books of the Company for the purpose of
causing meetings of stockholders to be called pursuant to these
provisions. Notwithstanding the provisions of this subparagraph (b),
no such special meeting shall be called during the 90 days
immediately preceding the date fixed for the next annual meeting of
stockholders.
At any meeting held for the purpose of electing directors at
which the holders of shares of Preference Stock shall have the
special right, voting separately as a class, to elect a director as
provided in this subparagraph (b), the presence, in person or by
proxy, of the holders of 51% of the number of shares of Preference
Stock at the time outstanding and entitled to vote shall be required
to constitute a quorum of such class for the election of any director
by the holders of the Preference Stock as a class, each share of
Series D Stock outstanding and entitled to vote counting, for
purposes only of determining the presence of such a quorum, as one
share of Preference Stock. At any such meeting or adjournment
thereof, (i) the absence of a quorum of Preference Stock shall not
prevent the election of directors other than those to be elected by
the holders of shares of Preference Stock voting as a class and the
absence of a quorum for the election of such other directors shall
not prevent the election of the directors to be elected by holders of
shares of Preference Stock voting as a class and (ii) in the absence
of either or both such quorums, a majority of the holders present in
person or by proxy of the stock or stocks which lack a quorum shall
have power to adjourn the meeting for the election of directors which
they are entitled to elect from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
During any period the holders of Preference Stock have the right
to vote as a class for a director as provided in this subparagraph
(b), (i) the director so elected by the holders of the Preference
Stock shall continue in office until termination of the right of the
holders of the Preference Stock to vote as a class for directors, and
(ii) any vacancies in the Board of Directors shall be filled only by
vote of a majority (which majority may consist of only a single
director) of the remaining directors theretofore elected by the
holders of the class or classes of stock which elected the director
whose office shall have become vacant.
PAGE 29
(6) Conversion Rights. The shares of the Series D Stock shall be
subject to conversion as follows:
(a) Optional Conversion. At any time, the holders of shares
of the Series D Stock shall have the right, at their option, to
convert each share of Series D Stock into shares of any other stock
of the Company on the following terms:
(I) Conversion Price. The shares of the Series D Stock
shall be convertible at the Company's principal office and at
such other office or offices, if any, as the Board of Directors
may designate, into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100th of a
share) of Common Stock of the Company, at the conversion price,
determined as hereinafter provided, in effect at the time of
conversion, each share of Series D Stock being taken at $25.00
for the purpose of such conversion. The price at which shares
of Common Stock shall be delivered upon conversion (herein
called the "conversion price") shall be initially $8.00 per
share of Common Stock. The conversion price shall be adjusted
as provided in clause (IV) of this subparagraph (a).
(II) Conversion Procedure. No payment or adjustment shall
be made upon the conversion of the Series D Stock on account of
any dividends declared but unpaid on the shares of the Series D
Stock converted or on account of any dividends on the Common
Stock issued upon such conversion.
Shares of the Series D Stock shall be deemed to have been
converted immediately prior to the close of business on the
Conversion Date, and the person or persons entitled to receive
the Common Stock issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such Common
Stock at such time. Following the Conversion Date, each holder
of shares of the Series D Stock converted will surrender, at the
Company's principal office or at any other office as the Board
of Directors may designate, the certificate or certificates
therefor, duly endorsed to the Company or in blank. As promptly
as practicable after such surrender, the Company shall issue and
shall deliver at said office a certificate or certificates for
the number of full shares of Common Stock issuable upon such
conversion to the person or persons entitled to receive the
same.
In case shares of Series D Stock are called for redemption,
the right to convert such shares shall cease and terminate at
the close of business on the Redemption Date on which such
shares are to be redeemed, unless default shall be made in
payment of the redemption price (in which event the right to
convert such shares shall cease when such redemption price shall
actually be paid).
PAGE 30
(III) Cash Payment. No fractional shares of Common Stock
shall be issued upon conversion of shares of the Series D Stock,
but, instead of any fraction of a share of Common Stock which
would otherwise be issuable in respect of the aggregate number
of shares of the Series D Stock held by the same holder, the
Company shall pay a cash adjustment of such fraction in an
amount equal to the same fraction of the Closing Price on the
Conversion Date, or, if the Conversion Date is not a Trading
Day, on the next Trading Day.
(IV) Conversion Price Adjustments. The conversion price
shall be adjusted from time to time as follows:
(A) In case the Company shall hereafter (i) pay a
dividend or make a distribution on its outstanding shares
of Common Stock in Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of
shares, or (iv) issue any shares by reclassification of its
shares of Common Stock, the conversion price in effect at
the time of the record date for such dividend or
distribution or the effective date of such subdivision,
combination or reclassification shall be adjusted so that
the holder of any shares of the Series D Stock converted
after such time shall be entitled to receive the number of
shares of capital stock of the Company which he would have
owned or been entitled to receive by reason of the
conversion of such shares of the Series D Stock had such
shares of the Series D Stock been converted immediately
prior to such time.
(B) In case the Company shall hereafter issue rights
or warrants to all holders of its Common Stock entitling
them (for a period expiring within fortyfive days after the
record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share less than the
current market price per share--as determined pursuant to
subclause (D) of this clause (IV)--on the record date for
the determination of the stockholders entitled to receive
such rights or warrants, the conversion price shall be
adjusted so that the same shall equal the price determined
by multiplying the conversion price in effect immediately
prior to the date of issuance of such rights or warrants by
a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on the record date for
the determination of the stockholders entitled to receive
such rights or warrants plus the number of shares of Common
Stock which the aggregate offering price of the total
number of shares of Common Stock so offered would purchase
at such current market price and of which the denominator
shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of
Common Stock offered for subscription or purchase. Such
PAGE 31
adjustment shall become effective at the opening of
business on the business day next following the record date
for the determination of stockholders entitled to receive
such rights or warrants; and to the extent that shares of
Common Stock are not delivered after the expiration of such
rights or warrants, the conversion price shall be
readjusted (but only with respect to shares of the Series D
Stock converted after such expiration) to the conversion
price which would then be in effect had the adjustments
made upon the distribution of such rights or warrants been
made upon the basis of delivery of only the number of
shares of Common Stock actually delivered. No adjustment
in the conversion price shall be required or made under
this subclause (B) or subclause (C) immediately below or
otherwise under this subparagraph (a) in respect of any
right granted by the Company to all holders of its Common
Stock to purchase additional shares of Common Stock from
the Company at a discount from the current market price per
share of Common Stock by reinvestment of dividends on
Common Stock if either (i) such discount does not exceed 6%
of such current market price or (ii) the holders of the
Series D Stock shall be entitled to purchase shares of
Common Stock from the Company at the same discount by
reinvestment of dividends on the Series D Stock.
(C) In case the Company shall hereafter distribute to all
holders of its Common Stock evidences of its indebtedness or
assets--excluding any cash dividend or distributions and
dividends referred to in subclause (A) of this clause (IV)--or
subscription rights or warrants (excluding those referred to in
subclause (B) immediately above), then in each such case the
conversion price shall be adjusted so that the same shall equal
the price determined by multiplying the conversion price in
effect immediately prior to the date of such distribution by a
fraction of which the numerator shall be the current market
price per share (determined as provided in subclause (D)
immediately below) of the Common Stock on the record date for
the determination of stockholders entitled to receive such
distribution less the then fair market value (as determined by
the Board of Directors of the Company, whose determination shall
be conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and the
denominator shall be such current market price per share of the
Common Stock. Such adjustment shall become effective on the
opening of business on the business day next following the
record date for the determination of stockholders entitled to
receive such distribution.
(D) For the purpose of any computation under subclause (B)
or (C) immediately above, the current market price per share of
Common Stock on any date shall be deemed to be the average of
the daily Closing Price for the thirty consecutive Trading Days
PAGE 32
selected by the Company commencing not more than fortyfive
Trading Days before the day in question.
(E) In any case in which this subparagraph (a) shall
require that an adjustment as a result of any event become
effective at the opening of business on the business day next
following a record date, the Company may elect to defer until
after the occurrence of such event (i) issuing to the holder of
any shares of the Series D Stock converted after such record
date and before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion over and
above the shares of Common Stock issuable upon such conversion
on the basis of the conversion price prior to adjustment and
(ii) paying to such holder any amount in cash in lieu of a
fraction share of Common Stock pursuant to clause (IV) of this
subparagraph (a); and, in lieu of the shares the issuance of
which is so deferred, the Company shall issue or cause its
transfer agents to issue due bills or other appropriate evidence
of the right to receive such shares.
(F) Any adjustment in the conversion price otherwise
required by this subparagraph (a) to be made may be postponed up
to, but not beyond, three years from the date on which it would
otherwise be required to be made provided that such adjustment
(plus any other adjustments postponed pursuant to this subclause
(F) and not theretofore made) would not require an increase or
decrease of more than $.50 in such price and would not, if made,
entitle the holders of all then outstanding shares of the Series
D Stock upon conversion to receive additional shares of Common
Stock equal in the aggregate to 3% or more of the then issued
and outstanding shares of Common Stock. All calculations under
this subparagraph (a) shall be made to the nearest cent or to
the nearest 1/100 of a share of Common Stock, as the case may
be.
(V) Conversion Price Adjustment Certificates and Notices.
Whenever the conversion price is adjusted as herein provided, the
Company shall compute the adjusted conversion price in accordance
with this subparagraph (a), shall prepare a notice stating that the
conversion price has been adjusted and setting forth the adjusted
conversion price and shall mail such notice as soon as practicable to
the holders of record of the outstanding shares of the Series D
Stock.
(VI) Mergers, etc. In case of any consolidation of the Company
with, or merger of the Company with or into, any other corporation
(other than a merger in which the Company is the surviving
corporation and which does not result in any reclassification or
change of the outstanding shares of the Company into which shares of
the Series D Stock would have been converted had the automatic
conversion of the Series D Stock occurred immediately prior thereto),
or in case of any conveyance or transfer of the property and assets
of the Company substantially as an entirety, lawful provision shall
PAGE 33
be made as a part of the terms of such transaction so that each share
of Series D Stock shall be converted on the Conversion Date into the
number and kind of shares of stock (and/or other securities, cash,
property or rights) receivable upon such consolidation, merger,
conveyance or transfer by a holder of the number and kind of shares
of the Company into which such share of Series D Stock would have
been converted had the automatic conversion of the Series D Stock
occurred immediately prior to such consolidation, merger, conveyance
or transfer, subject to subsequent adjustments as nearly equivalent
as practicable to the adjustments provided for in this subparagraph
(a). The above provisions of this clause (VI) shall similarly apply
to successive consolidations, mergers, conveyances or transfers.
(VII) Reservation of Shares. The Company shall at all times
reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting
the conversion of the shares of the Series D Stock on the Conversion
Date, the full number of shares of Common Stock which at the time is
deliverable on the Conversion Date upon the conversion of all shares
of the Series D Stock outstanding at such time.
(VIII) Taxes. The Company shall pay any and all taxes that
may be payable in respect of the issuance or delivery of shares of
Common Stock on conversion of shares of Series D Stock pursuant
hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that in
which the shares of Series D Stock so converted were registered, and
no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Company the amount of any such
tax, or has established, to the satisfaction of the Company, that
such tax has been paid.
(IX) Common Stock. For the purpose of this paragraph (6) the
term "Common Stock" shall include any stock of any class of the
Company which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, and which is not subject to
redemption by the Company. However, shares issuable on conversion of
shares of the Series D Stock shall include only shares of the class
designated as Common Stock of the Company as of the original date of
issue of the Series D Stock or shares of any class or classes
resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which are not subject to
redemption by the Company, provided that if at any time there shall
be more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
PAGE 34
(X) Closing Price. As used in this paragraph (6), the term
"Closing Price" on any day shall mean the reported last sales price
regular way on such day or, in case no such sale takes place on such
day, the average of the reported closing bid and asked prices regular
way, in each case on the New York Stock Exchange, or, if the Common
Stock is not listed or admitted to trading on such Exchange, 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
closing bid and asked prices as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for
that purpose; and the term "Trading Day" shall mean a date on which
the New York Stock Exchange (or any successor to such Exchange) is
open for the transaction of business.
(7) Definitions.
(a) Conversion Date. The term "Conversion Date" shall mean the
date on which the holder of shares of Series D Stock exercises his or
its option to convert the shares of Series D Stock into Common Stock.
(b) Accrued Dividends. The term "Accrued Dividends" shall mean
Full Accrued Dividends as of the date as of which Accrued Dividends
are to be computed, less the amount of all dividends paid, upon the
relevant shares of Series D Stock.
(c) Full Accrued Dividends. The term "Full Accrued Dividends"
shall mean the aggregate amount of dividends, if any, which the
holders of shares of Series D Stock shall have become entitled to
receive as of the date as of which Full Accrued Dividends are to be
computed.
(d) Preferred Stock. The term "Preferred Stock" shall mean any
Preferred Stock created and issued under this Article Fourth. The
term "preferred stock" shall mean shares of any class of stock
(including any class of Preferred Stock or Preference Stock) if the
holders of such class shall be entitled to the receipt of dividends
or of amounts distributable upon liquidation, dissolution or winding
up, in preference or priority to the holders of shares of Common
Stock.
(e) Preference Stock. The term "Preference Stock" shall mean
any Preference Stock created and issued under this Article Fourth.
(f) Ranking of Shares. For the purposes hereof any stock of
any class or classes of the Company shall be deemed to rank (i) prior
to shares of the Series D Stock, either as to dividends or upon
liquidation, if the holders of such class or classes shall be
entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of shares of the Series D
Stock; (ii) on a parity with shares of the Series D Stock, either as
to dividends or upon liquidation, whether or not the dividend rates,
PAGE 35
dividend payment dates, or redemption or liquidation prices per share
thereof be different from those of the Series D Stock, if the holders
of such stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority of one over the
other as between the holders of such stock and the holders of shares
of Series D Stock; and (iii) junior to shares of the Series D Stock,
either as to dividends or upon liquidation, if such class shall be
Common Stock or if the holders of the Series D Stock shall be
entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of shares of such class or
classes.
(8) Rank of Series D Stock. The shares of the Series D Stock shall
rank junior as to dividends and upon liquidation to the shares of the
$6.00 Cumulative Convertible Preferred Stock, Series G (With Par Value of
$1.00) of the Company. Except as otherwise fixed at the time such class
is created, the shares of the Series D Stock shall rank on a parity as to
dividends and upon liquidation with the shares of the stock of any other
class of Preferred Stock or Preference Stock.
(9) Fractional Shares. The Series D Stock may be issued in
fractions of a share equal to one one-hundredth (.01) of a share or any
integral multiple thereof. Each fractional share of Series D Stock issued
shall have a corresponding fraction of the voting powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, attributable to a
full share of Series D Stock.
(10) Retirement of Converted Shares, etc. Shares of the Series D
Stock which have been converted into Common Stock pursuant to the
provisions of paragraph (6) of this Section C regarding Series D Stock
shall have the status of authorized and unissued Preferred Stock but shall
not be reissued as Series D Stock.
III. Parent Common Stock. Except as otherwise provided in this
Section III or as otherwise required by applicable law, all shares of
Common Stock and Class B Common shall be identical in all respects
and shall entitle the holders thereof to the same rights and
privileges, subject to the same qualifications, limitations and
restrictions.
A. Voting Rights.
(1) Common Stock. Except as otherwise provided in this
Section III, as otherwise required by law or by the resolution
or resolutions providing for the issuance of any series of
Preferred Stock or Preference Stock and subject to the
provisions of any applicable law or of the By-laws of the
Company, as from time to time amended, with respect to the
closing of the transfer books or the fixing of a record date for
PAGE 36
the determination of stockholders entitled to vote, the holders
of outstanding shares of Common Stock shall exclusively possess
voting power for the election of directors and for other pur-
poses, each holder of record of shares of Common Stock being
entitled to one vote for each share of Common Stock standing in
his name on the books of the Company.
(2) Class B Common. The holders of shares of Class B
Common shall have no right to vote on any matters to be voted on
by the stockholders of the Company except as follows:
(a) Without the affirmative vote or consent of the holders
of the Class B Common, voting or consenting (as the case may be)
separately as a class, in person or by proxy, either in writing
or by resolution adopted at a special meeting called for the
purpose, the Company shall not (i) change the number of
authorized shares of the Class B Common or (ii) amend this
Certificate of Incorporation or take any other action
(including, without limitation, a merger or consolidation to
which the Company is a constituent party) which would have the
effect of eliminating the Class B Common or of amending,
altering or repealing any of the preferences, special rights or
powers of the holders of the Class B Common so as adversely to
affect such preferences, special rights or powers.
(b) The holders of shares of Class B Common shall have the
right to vote together with the holders of shares of the Common
Stock as a single class on any Super-Majority Transaction sub-
mitted to the holders of Parent Common Stock for their vote,
approval or consent. When voting on any Super-Majority
Transaction, each holder of shares of Class B Common shall be
entitled to cast one vote for each share of Class B Common
standing in his name on the books of the Company.
(3) Super-Majority Transactions. The affirmative vote or
consent of the greater of (a) the holders of at least 85% of the
shares of the Parent Common Stock, voting as a single class,
present in person or by proxy at a meeting at which a Super-
Majority Transaction is submitted for a vote of the Company's
stockholders and (b) the holders of a majority of the voting
power of all of the Parent Common Stock shall be required to
approve any Super-Majority Transaction.
B. Dividends. Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of Preferred Stock
or Preference Stock, the holders of Parent Common Stock shall be
entitled, to the exclusion of the holders of Preferred Stock and
Preference Stock of any and all series, to receive such dividends as
from time to time may be declared by the Board of Directors. As and
when dividends are declared or paid thereon, whether in cash,
property or securities of the Company, the holders of Common Stock
and the holders of Class B Common shall be entitled to participate in
such dividends ratably on a per share basis; provided, that (i) if
PAGE 37
dividends are declared which are payable in shares of Common Stock or
Class B Common, such dividends shall be payable at the same rate on
both Common Stock and Class B Common and the dividends payable in
shares of Common Stock shall be payable to holders of that class of
stock and the dividends payable in shares of Class B Common shall be
payable to holders of that class of stock, (ii) if the dividends
consist of other voting securities of the Company, the Company shall
declare and pay in respect of each share of Class B Common dividends
consisting of an equal number of non-voting securities of the Company
which are otherwise identical to the voting securities, which shall
entitle the holder thereof to cast the same number of votes upon any
Super-Majority Transaction as such holder would have been entitled to
cast had such holder received voting securities, rather than non-
voting securities, with respect to such dividend and which are
convertible into or exchangeable for such voting securities on the
same terms as the Class B Common is convertible into the Common
Stock, (iii) if the dividends consist of the right to purchase
additional shares of Common Stock or Class B Common, at the Company's
option, either (A) dividends shall be declared which are payable at
the same rate on both classes of stock and the dividends payable in
the right to purchase additional shares of Common Stock shall be
payable to holders of that class of stock and the dividends payable
in the right to purchase additional shares of Class B Common shall be
payable to holders of that class of stock or (B) in the case of a
dividend payable in the right to purchase additional shares of Common
Stock, such dividend shall be payable to holders of that class of
stock and the Class B Common Conversion Ratio (as hereinafter
defined) shall be adjusted as provided in subparagraph 2 of Paragraph
D of this Section III.
C. Rights on Liquidation, Dissolution, Winding Up. In the event of
any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, after payment shall have been made to the
holders of Preferred Stock and Preference Stock of the full amount
for which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of Preferred Stock
or Preference Stock, the holders of the Parent Common Stock shall be
entitled, to the exclusion of the holders of Preferred Stock or
Preference Stock of any and all series, to share, ratably according
to the number of shares of Parent Common Stock held by them, in all
remaining assets of the Company available for distribution to its
stockholders.
D. Conversion Rights.
(1) Conversion of Common Stock. The holders of shares of
Common Stock shall have no conversion rights with respect to
such shares.
(2) Conversion of Class B Common Stock. With respect to
each share of Class B Common, upon the earlier to occur of
(i) any transfer of such share of Class B Common in accordance
with Paragraph E of this Section III (except for transfers
PAGE 38
permitted by subparagraph 3 of Paragraph E) and (ii) the Event
Date, such share shall convert automatically into shares of
Common Stock at a ratio (the "Class B Common Conversion Ratio")
which initially shall be one share of Common Stock per share of
Class B Common so converted; provided, that if and whenever the
Company shall hereafter issue rights pursuant to clause (iii)(B)
of Paragraph B of this Section III to all holders of its Common
Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the current market
price per share--as determined pursuant to the penultimate
sentence of this subparagraph 2 of this paragraph D--on the
record date for the determination of the stockholders entitled
to receive such rights, the Class B Common Conversion Ratio
shall be adjusted to an amount equal to the product of the Class
B Common Conversion Ratio in effect immediately prior to the
date of issuance of such rights and a fraction, of which the
numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional
shares of Common Stock offered for subscription or purchase and
of which the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares
of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered would purchase at
such current market price. Such adjustment shall become
effective at the opening of business on the business day next
following the record date for the determination of stockholders
entitled to receive such rights; and to the extent that shares
of Common Stock are not delivered after the expiration of such
rights, the Class B Common Conversion Ratio shall be readjusted
(but only with respect to shares of the Class B Common converted
after such expiration) to the Class B Common Conversion Ratio
which would then be in effect had the adjustments made upon the
distribution of such rights been made upon the basis of delivery
of only the number of shares of Common Stock actually delivered.
For the purpose of any computation under the immediately
preceding sentence, the current market price per share of Common
Stock on any date shall be deemed to be the average of the daily
Closing Prices for the thirty consecutive Trading Days selected
by the Company commencing not more than fortyfive Trading Days
before the day in question. Notwithstanding anything else
contained in this subparagraph 2 of this Paragraph D, upon the
termination of the Settlement Agreement in accordance with the
provisions of Section 13 thereof, all then outstanding shares of
Class B Common in the aggregate shall convert automatically,
without any further action on the Company's part, into one (1)
share of Common Stock.
(I) Mergers, etc. In case of any consolidation of the Company
with, or merger of the Company with or into, any other
corporation (other than a merger in which the Company is
the surviving corporation and which does not result in any
reclassification or change of the outstanding shares of the
Company into which shares of the Class B Common would have
PAGE 39
been converted had the automatic conversion of the Class B
Common occurred immediately prior thereto), or in case of
any conveyance or transfer of the property and assets of
the Company substantially as an entirety, lawful provision
shall be made as a part of the terms of such transaction so
that each share of Class B Common (i) shall entitle the
holder thereof to receive, at the same time and on the same
terms as applicable to the shares of the Company into which
the Class B Common shall be convertible, any cash,
securities (other than equity securities of the Company),
rights or other property receivable upon such
consolidation, merger, conveyance or transfer by a holder
of the number and kind of shares of the Company into which
such share of Class B Common would have been converted had
the automatic conversion of the Class B Common occurred
immediately prior to such consolidation, merger, conveyance
or transfer and (ii) shall be converted on the Class B
Common Conversion Date into the number and kind of equity
of the Company, if any, receivable upon such consolidation,
merger, conveyance or transfer by a holder of the number
and kind of shares of the Company into which such share of
Class B Common would have been converted had the automatic
conversion of the Class B Common occurred immediately prior
to such consolidation, merger, conveyance or transfer
subject to subsequent adjustments as nearly equivalent as
practicable to the adjustments provided for in this
subparagraph 2 of paragraph D; provided however, that any
instrument convertible into or exchangeable for equity
securities of the Company shall be deemed for purposes of
this subparagraph 2(I) not to be equity securities of the
Company; and provided, further, that in the event that any
instrument convertible into or exchangeable for shares of
Common Stock or other voting securities of the Company is
paid in any such consolidation, merger, conveyance or
transfer in respect of the shares of the Company into which
the shares of Class B Common shall be convertible or
exchangeable, the corresponding instrument paid in respect
of the Class B Common pursuant to this subparagraph 2(I)
may be convertible into or exchangeable for Class B Common
or non-voting securities of the Company, respectively, in
the manner contemplated by paragraph B of this Section III.
The above provisions of this clause (I) shall similarly
apply to successive consolidations, mergers, conveyances or
transfers.
(II) Reservation of Shares. The Company shall at all times
reserve and keep available, free from preemptive rights,
out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of the shares of the
Class B Common on the Class B Common Conversion Date, the
full number of shares of Common Stock which at the time is
deliverable on the Class B Common Conversion Date upon the
conversion of all shares of the Class B Common outstanding
at such time.
PAGE 40
(III) Taxes. The Company shall pay any and all taxes that may be
payable in respect of the issuance or delivery of shares of
Common Stock on conversion of shares of Class B Common
pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of shares
of Common Stock in a name other than that in which the
shares of Class B Common so converted were registered, and
no such issue or delivery shall be made unless and until
the person requesting such issue has paid to the Company
the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
(IV) Common Stock. For the purpose of this subparagraph 2 of
paragraph D the term "Common Stock" shall include any stock
of any class of the Company (other than the Class B Common)
which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involun-
tary liquidation, dissolution or winding up of the Company,
and which is not subject to redemption by the Company.
However, shares issuable on conversion of shares of the
Class B Common shall include only shares of the class
designated as Common Stock of the Company as of the
original date of issue of the Class B Common or shares of
any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to
redemption by the Company, provided that if at any time
there shall be more than one such resulting class, the
shares of each such class then so issuable shall be
substantially in the proportion which the total number of
shares of such class resulting from all such reclassifica-
tions bears to the total number of shares of all such
classes resulting from all such reclassifications.
(V) Retirement of Converted Shares, etc. Shares of the Class B
Common which have been converted into Common Stock pursuant
to the provisions of this subparagraph 2 of paragraph D
regarding Class B Common shall have the status of retired
shares of Class B Common and shall not be reissued.
(VI) Rights Prior to Conversion. Notwithstanding anything to
the contrary contained in this Section III, in case of any
adjustment of the Class B Common Conversion Ratio as
provided in this subparagraph 2 of this Paragraph D, the
determination of the rights of the holders of Class B
Common to vote such shares in Super-Majority Transactions,
to receive dividends with respect to such shares, and to
share ratably with the holders of Common Stock in assets of
the Company in the event of any liquidation, dissolution or
winding up of the Company shall be made as if the number of
PAGE 41
shares of Class B Common held by each such holder of the
Class B Common were equal to the product of the number of
shares of Class B Common actually held by such holder at
the time of such determination and the Class B Common
Conversion Ratio.
(VII) No Fractional Shares. No fractional shares of Common
Stock shall be issued upon conversion of shares of the
Class B Common, but, instead of any fraction of a share of
Common Stock which would otherwise be issuable in respect
of the aggregate number of shares of the Class B Common
held by the same holder, the Company shall pay a full share
of Common Stock.
(VIII) Conversion Procedure. Following the Class B Common
Conversion Date, each holder of shares of the Class B
Common converted will surrender, at the Company's principal
office or at any other office as the Board of Directors may
designate, the certificate or certificates therefor, duly
endorsed to the Company or in blank. As promptly as
practicable after such surrender, the Company shall issue
and shall deliver at said office a certificate or
certificates for the number of shares of Common Stock
issuable upon such conversion to the person or persons
entitled to receive the same.
E. Transferability of Class B Common. Prior to the Event Date, the
shares of the Class B Common shall be nontransferable by the
Supplemental Benefit Trust or any other holder thereof except:
(1) pursuant to the terms of Article VIII of Exhibit B to
the Settlement Agreement;
(2) pursuant to any transaction which is approved by the
Board of Directors or with respect to which the Board of
Directors consents in writing;
(3) to any financial institution as security for any
indebtedness or obligation of the holders of the shares of
Class B Common; or
(4) pursuant to any tender or exchange offer made by any
person or "group" (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, or any successor
statute thereto), for shares of Parent Common Stock.
Any attempted transfer of shares of the Class B Common in violation
of the provisions hereof shall be void and of no effect. The Company
shall place on the certificates representing shares of the Class B
Common a legend consistent with the provisions hereof.
F. Stock Splits, Recapitalizations, Etc. If the Company in any
manner subdivides or combines the outstanding shares of, or effects
PAGE 42
any recapitalization or similar transaction with respect to, one
class of Parent Common Stock, the outstanding shares of the other
class of Parent Common Stock shall be proportionately subdivided,
combined, reclassified or the like in a similar manner.
G. Definitions.
(1) Class B Common Conversion Date. The term "Class B
Common Conversion Date," with respect to each share of Class B
Common, shall mean the date on which such share automatically
converts into shares of Common Stock pursuant to the terms and
conditions contained herein.
(2) Closing Price. The term "Closing Price" on any day
shall mean the reported last sales price regular way on such day
or, in case no such sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in each
case on the New York Stock Exchange, or, if the Common Stock is
not listed or admitted to trading on such Exchange, 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 closing bid and asked prices as furnished by any New York
Stock Exchange member firm selected from time to time by the
Company for that purpose.
(3) Trading Day. The term "Trading Day" shall mean a day
on which the New York Stock Exchange (or any successor to such
Exchange) is open for the transaction of business.
(4) Event Date. The term "Event Date" shall have the
meaning assigned to such term in the Settlement Agreement.
(5) Navistar International Transportation Corp. The term
"Navistar International Transportation Corp." shall mean
Navistar International Transportation Corp., a Delaware
corporation, or any successor corporation thereto.
(6) Super-Majority Transaction. The term "Super-Majority
Transaction" shall mean (i) a merger or consolidation to which
the Company is a constituent party, if either (A) the stock-
holders of the Company immediately before such merger or
consolidation, do not own, directly or indirectly, more than 50%
of the combined voting power of the then outstanding voting
securities of the corporation surviving or resulting from such
merger or consolidation or (B) equity securities of the Company
or Navistar International Transportation Corp. would be issued
to stockholders of the other constituent corporation(s) to such
merger or consolidation which have a fair market value at the
time of the transaction in excess of $750 million, or (ii) the
sale, transfer, pledge or other disposition of all or
substantially all of the assets of the Company and its
subsidiaries on a consolidated basis or Navistar International
PAGE 43
Transportation Corp. and its subsidiaries on a consolidated
basis.
Subject to the provisions of this Certificate of Incorporation
and except as otherwise provided by law, the shares of stock of the
Company, regardless of class, may be issued for such consideration
and for such corporate purposes as the Board of Directors may from
time to time determine.
No holder of stock of the Company shall have any preemptive
right with respect to stock of the Company.
Fifth: The Company is to have perpetual existence.
Sixth: Except as otherwise provided herein, any action required or
permitted to be taken by the stockholders of the Company must be taken at
a duly called annual or special meeting of such stockholders of the
Company and may not be effected by any consent in writing by such
stockholders.
The private property of the stockholders of the Company shall not be
subject to the payment of corporate debts to any extent whatsoever.
Seventh: The number of directors which shall constitute the whole
Board of Directors of the Company shall be as specified in the By-laws of
the corporation, subject to the provisions of this Article Seventh.
The Board of Directors shall be and is divided into three classes:
Class I, Class II and Class III, which shall be as nearly equal in number
as possible. Each director shall serve for a term ending on the date of
the third annual meeting of stockholders following the annual meeting at
which the director was elected; provided, however, that each initial
director in Class I shall hold office until the annual meeting of
stockholders in 1988; each initial director in Class II shall hold office
until the annual meeting of stockholders in 1989; and each initial
director in Class III shall hold office until the annual meeting of
stockholders in 1990. Notwithstanding the foregoing provisions of this
Article, each director shall serve until his successor is duly elected and
qualified or until his death, resignation or removal.
In the event of any increase or decrease in the authorized number of
directors, the newly created or eliminated directorships resulting from
such increase or decrease shall be apportioned by the Board of Directors
among the three classes of directors so as to maintain such classes as
nearly equal as possible. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
Newly created directorships resulting from any increase in the number
of directors to be elected by the holders of the Common Stock and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the
PAGE 44
affirmative vote of a majority of the remaining directors elected by the
holders of the Common Stock then in office (and not by stockholders), even
though less than a quorum of the Board of Directors. Any director elected
in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified.
Notwithstanding the foregoing, wherever the holders of any one or
more classes or series of stock issued by this Company having a preference
over the Parent Common Stock as to dividends or upon liquidation shall
have the right, voting separately by class or series, to elect directors
by consent or at an annual or special meeting of stockholders, the number,
election, term of office, filling of vacancies, terms of removal and other
features of such directorships shall be governed by the terms of the
resolution or resolutions establishing such class or series adopted
pursuant thereto and such directors so elected shall not be divided into
classes pursuant to this Article Seventh unless expressly provided by such
terms.
The Board of Directors shall have power to hold its meetings outside
the State of Delaware at such place as from time to time may be designated
by the By-laws or by resolution of the Board of Directors. The By-laws
may prescribe the number of directors necessary to constitute a quorum.
The capital of the Company may be increased from time to time by
resolution of the Board of Directors directing that a portion of the net
assets of the Company in excess of the amount theretofore determined to be
capital be transferred to capital account. Any and all shares of the
Parent Common Stock may be issued by the Company from time to time for
such consideration as may be fixed from time to time by the Board of
Directors.
Eighth: The Board of Directors shall have power, without stockholder
action:
I. To make By-laws for the Company, and to amend, alter or
repeal any By-laws; but any By-laws made by the directors may be
altered, amended or repealed by the stockholders at any meeting,
provided notice of such proposed alteration, amendment or repeal be
included in the notice of such meeting.
II. To remove at any time any officer, agent or employee of the
Company, provided, however, that such power of removal may be
conferred by the By-laws or by the Board of Directors on any
committee or officer.
III. To fix and determine, and to vary the amount of, the
working capital of the Company, and to determine the use or
investment of any assets of the Company; to set apart out of any of
the funds of the Company available for dividends a reserve or
reserves for any proper purpose and to abolish any such reserve or
reserves; and to declare and authorize payment of such dividends as
PAGE 45
it shall determine advisable and proper, subject to such restrictions
as may be imposed by law.
IV. To authorize the purchase or other acquisition of shares of
stock of the Company or any of its bonds, debentures, notes, scrip or
other securities or evidences of indebtedness.
V. To determine whether and to what extent, at what times and
places, and under what conditions and regulations, the accounts,
books and documents of the Company, or any of them, shall be open to
the inspection of the stockholders; and no stockholder shall have any
right to inspect any account, book or document of the Company, except
as conferred by the laws of the State of Delaware or as authorized by
resolution adopted by the Board of Directors or by the stockholders
of the Company entitled to vote in respect thereof.
VI. Except as otherwise provided by law, to determine the
places within or without the State of Delaware where any or all of
the books of the Company shall be kept.
VII. To authorize the sale, lease or other disposition of any
part or parts of the properties of the Company and to cease to
conduct the business connected therewith or again to resume the same,
as it may deem best.
VIII. To authorize the borrowing of money; the issuance of
bonds, notes, debentures and other obligations or evidences of
indebtedness of the Company, secured or unsecured, and the inclusion
of provisions as to redeemability and convertibility into shares of
stock of the Company or otherwise; and the mortgaging or pledging, as
security for money borrowed or bonds, notes, debentures or other
obligations issued by the Company, of any property of the Company,
real or personal, then owned or thereafter acquired by the Company.
The powers and authorities herein conferred upon the Board of
Directors are in furtherance and not in limitation of those conferred by
the laws of the State of Delaware. In addition to the powers and
authorities herein or by statute expressly conferred upon it, the Board of
Directors may exercise all such powers and do all such acts and things as
may be exercised or done by the Company, subject, nevertheless, to the
provisions of the laws of the State of Delaware, of this Certificate of
Incorporation and of the By-laws of the Company.
The Board of Directors may, by resolution passed by a majority of the
whole Board of Directors, designate one or more committees, each committee
to consist of two (2) or more of the directors of the Company, which to
the extent provided in said resolution or resolutions or in the By-laws,
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Company, and may authorize
the seal of the Company to be affixed to all papers which may require it.
PAGE 46
Subject to any limitation in the By-laws, the members of the Board of
Directors shall be entitled to reasonable fees, salaries or other
compensation for their services, as determined from time to time by the
Board of Directors, and to reimbursement for their expenses as such
members. Nothing herein contained shall preclude any director from
serving the Company or its subsidiaries or affiliates in any other
capacity and receiving compensation therefor.
To the fullest extent permitted by the General Corporation Law of the
State of Delaware as it now exists or may hereafter be amended, no
director of the Company shall be liable to the Company or its stockholders
for monetary damages arising from a breach of fiduciary duty owed to the
Company or its stockholders. Any repeal or modification of this provision
by the stockholders of the Company shall not adversely affect any right or
protection of a director of the Company existing at the time of such
repeal or modification.
Ninth: Indemnification:
I. Each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she is or was a
director or officer of the Company (which term shall include any
predecessor corporation of this Company) or is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit
plans ("indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the
Company to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification
rights than said law permitted the Company to provide prior to such
amendment), against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided however,
that, except as provided in paragraph II of this Article Ninth with
respect to proceedings to enforce rights to indemnification, the
Company shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if
such proceeding (or part thereof) was authorized by the Board of
Directors. The right to indemnification conferred in this Article
Ninth shall be a contract right and shall include the right to be
paid by the Company the expenses incurred in defending any such
proceeding in advance of its final disposition; provided however,
PAGE 47
that, if the Delaware General Corporation Law requires, the payment
of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon
delivery to the Company of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it ultimately be
determined by final judicial decision from which there is no further
right to appeal that such indemnitee is not entitled to be
indemnified for such expenses under this Article Ninth or otherwise.
II. If a claim under paragraph I of this Article Ninth is not
paid in full by the Company within sixty (60) days after a written
claim has been received by the Company, except in the case of a claim
for expenses incurred in defending a proceeding in advance of its
final disposition, in which case the applicable period shall be
twenty (20) days, the indemnitee may at any time thereafter bring
suit against the Company to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit or in a suit
brought by the Company to recover payments by the Company of expenses
incurred by an indemnitee in defending in his or her capacity as a
director or officer, a proceeding in advance of its final
disposition, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such claim. In any action
brought by the indemnitee to enforce a right to indemnification
hereunder (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered
to the Company) or by the Company to recover payments by the Company
of expenses incurred by an indemnitee in defending, in his or her
capacity as a director or officer, a proceeding in advance of its
final disposition, the burden of proving that the indemnitee is not
entitled to be indemnified under this Article Ninth or otherwise
shall be on the Company. Neither the failure of the Company
(including the Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement
of such action that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Company (including the Board
of Directors, independent legal counsel or its stockholders) that the
indemnitee has not met such applicable standard of conduct, shall be
a presumption that the indemnitee has not met the applicable standard
of conduct, or in the case of such an action brought by the
indemnitee, be a defense to the action.
III. The rights conferred on any person by paragraphs I and II
of this Article Ninth shall not be exclusive of any other right which
such person may have or hereafter acquire under any statute, this
certificate of incorporation by-law, agreement, vote of stockholders
or disinterested directors or otherwise.
PAGE 48
IV. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or
not the Company would have the power to indemnify such person against
such expense, liability or loss under the Delaware General
Corporation Law.
V. Persons who are not included as indemnitees under paragraph
I of this Article Ninth but are employees of the Company or any
subsidiary may be indemnified to the extent authorized at any time or
from time to time by the Board of Directors.
Tenth: The Company reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, and other provisions authorized by the laws
of the State of Delaware at the time in force may be added or inserted, in
the manner now or hereafter prescribed by law and this Certificate of
Incorporation; and all rights, preference and privileges of whatsoever
nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its
present form or as hereafter amended are granted subject to the right
reserved in this Article Tenth.