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Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
BAY NETWORKS, INC.
Bay Networks, Inc. (hereinafter called the "Corporation"), a corporation
organized and existing under the laws of the State of Delaware, hereby certifies
that:
1. The name of the Corporation is Bay Networks, Inc. The
Corporation was originally incorporated under the name "Percom, Inc." by the
filing of a Certificate of Incorporation in the office of the Secretary of State
of the State of Delaware on May 2, 1986.
2. This Restated Certificate of Incorporation has been duly adopted
in accordance with Section 245 of the General Corporation Law of the State of
Delaware.
3. This Restated Certificate of Incorporation restates and
integrates and does not further amend the provisions of the Corporation's
Certificate of Incorporation as heretofore amended or supplemented, and there is
no discrepancy between such provisions and the provisions of this Restated
Certificate of Incorporation.
4. The text of the Certificate of Incorporation of this Corporation
is hereby restated and integrated to read in its entirety as follows:
FIRST: The name of the Corporation is
BAY NETWORKS, INC.
SECOND: The registered office of the Corporation is to be
located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, in the County of New Castle, in the State of Delaware. The
name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The nature of the business or purpose to be conducted or
promoted by the Corporation is as follows:
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To design, manufacture and sell data communications products of
all types and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
FOURTH: The total number of shares of all classes of stock which
the Corporation shall have authority to issue is (i) 300,000,000 shares
of Common Stock, $.01 par value per share ("Common Stock"), and (ii)
1,000,000 shares of Preferred Stock, $.001 par value per share
("Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or
restrictions thereof in respect of each class of capital stock of the
Corporation.
A. Common Stock.
1. General. The voting, dividend and liquidation
rights of the holders of the Common Stock are subject to and qualified
by the rights of the holders of Preferred Stock of any series as may be
designated by the Board of Directors upon any issuance of the Preferred
Stock of any series.
2. Voting. The holders of the Common Stock are
entitled to one vote for each share held at all meetings of stockholders
(and written actions in lieu of meetings). There shall be no cumulative
voting. The number of authorized shares of Common Stock may be increased
or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote.
3. Dividends. Dividends may be declared and paid on
the Common Stock from funds lawfully available therefor as and when
determined by the Board of Directors, subject to any preferential
dividend rights of any then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation
of the Corporation, whether voluntary or involuntary, holders of Common
Stock will be entitled to receive all assets of the Corporation
available for distribution to its stockholders, subject to any rights of
any then outstanding Preferred Stock.
B. Preferred Stock.
Preferred Stock may be issued from time to time in one or more
series, each of such series to have such terms as stated or expressed
herein and in the resolution or resolutions providing for the issue of
such series adopted by the Board of Directors of the Corporation as
hereinafter provided. Any shares of Preferred Stock which may be
redeemed, purchased or acquired by the Corporation may be reissued
except as otherwise provided by law. Different series of Preferred Stock
shall not be construed to constitute different classes of shares for the
purposes of voting by classes unless expressly provided.
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Authority is hereby expressly granted to the Board of Directors
from time to time to issue the Preferred Stock in one or more series,
and in connection with the creation of any such series, by resolution or
resolutions providing for the issue of the shares thereof, to determine
and fix such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as
shall be stated and expressed in such resolutions, all to the fullest
extent now or hereafter permitted by the General Corporation Law of
Delaware. Without limiting the generality of the foregoing, the
resolutions providing for issuance of any series of Preferred Stock may,
subject to the provisions hereof, provide that such series shall be
superior or rank equally or be junior to the Preferred Stock of any
other series to the extent permitted by law. Except as provided herein,
no vote of the holders of the Preferred Stock or Common Stock shall be a
prerequisite to the issuance of any shares of any series of the
Preferred Stock authorized by and complying with the conditions of the
Certificate of Incorporation, the right to have such vote being
expressly waived by all present and future holders of the capital stock
of the Corporation.
Pursuant to the foregoing provision, the Board of Directors has
created one series of Preferred Stock with the following rights, powers,
preferences, qualifications, limitations and restrictions:
1. Designation and Amount. The shares of such
series shall be designated as "Series A Preferred Stock" (the "Series A
Preferred Stock"), $.001 par value per share, and the number of shares
constituting such series shall be 500,000.
2. Dividends and Distributions.
(A) The dividend rate on the shares of
Series A Preferred Stock shall be for each quarterly dividend
(hereinafter referred to as a "quarterly dividend period"), which
quarterly dividend periods shall commence on March 31, June 30,
September 30 and December 31, in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date") (or in the
case of original issuance, from the date of original issuance) and shall
end on and include the day next preceding the first date of the next
quarterly dividend period, at a rate per quarterly dividend period
(rounded to the nearest cent) equal to the greater of (a) $175,000 or
(b) subject to the provisions for adjustment hereinafter set forth,
1,000 times the aggregate per share amount of all cash dividends, and
1,000 times the aggregate per share amount (payable in cash, based upon
the fair market value at the time the non-cash dividend or other
distribution is declared as determined in good faith by the Board of
Directors) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared (but not withdrawn) on the Common Stock, par value $.01 per
share, of the Corporation (the "Common Stock") during the immediately
preceding quarterly dividend period, or, with respect to the first
quarterly dividend period, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event this
Corporation shall at any time after February 27, 1995 (the "Rights
Declaration Date") (i) declare any dividend on
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Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to
such event.
(B) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series A Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than
45 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred Stock shall
entitle the holder thereof to 1,000 votes on all matters submitted to a
vote of the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each
such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided in the
Certificate of Incorporation or By-Laws, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders
of the Corporation.
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(C) Except as set forth in the Certificate
of Incorporation and in the By-Laws, holders of Series A Preferred Stock
shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
4. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
5. Liquidation, Dissolution or Winding Up. In the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of the Series A Preferred
Stock shall be entitled to receive the greater of (a) $175,000 per
share, plus accrued dividends to the date of distribution, whether or
not earned or declared, or (b) an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of Common Stock.
In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
pursuant to clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Preferred Stock
shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set
forth) equal to 1,000 times the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the
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denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
8. Fractional Shares. Series A Preferred Stock may
be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and have the
benefit of all other rights of holders of Series A Preferred Stock. All
payments made with respect to fractional shares hereunder shall be
rounded to the nearest whole cent.
9. Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid in
full, the Corporation shall not:
(i) declare or pay dividends on,
make any other distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends on or
make any other distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably on the
Series A Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire
for consideration any shares of Series A Preferred Stock, or any shares
of stock ranking on a parity with the Series A Preferred Stock, except
in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes
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shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 9, purchase or
otherwise acquire such shares at such time and in such manner.
10. Ranking. The Series A Preferred Stock shall be
junior to all other series of the Corporation's preferred stock as to
the payment of dividends and the distribution of assets, unless the
terms of any series shall provide otherwise.
11. Amendment. The Certificate of Incorporation of
the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of
the Series A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of Series A Preferred Stock voting together as a single class.
FIFTH: In furtherance of and not in limitation of powers
conferred by statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors is expressly authorized to adopt,
amend or repeal the By-Laws of the Corporation.
SIXTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof, or on the application of any receiver or receivers
appointed for this Corporation under the provisions of section 291 of
Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation,
as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class
of stockholders of this Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this Corporation
as consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the
court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class
of stockholders, of this Corporation, as the case may be, and also on
this Corporation.
SEVENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now
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or hereafter prescribed by statute and the Restated Certificate of
Incorporation, and all rights conferred upon stockholders herein are
granted subject to this reservation.
EIGHTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a
director of this Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director.
NINTH: This Article is inserted for the management of the
business and for the conduct of the affairs of the Corporation, and it
is expressly provided that it is intended to be in furtherance and not
in limitation or exclusion of the powers conferred by the statutes of
the State of Delaware.
1. Number of Directors. The number of directors which shall
constitute the whole Board of Directors shall be determined by
resolution of a majority of the Board of Directors, but in no event
shall be less than three. The number of directors may be decreased at
any time and from time to time by a majority of the directors then in
office, but only to eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more directors.
The directors shall be elected at the annual meeting of stockholders by
such stockholders as have the right to vote on such election. Directors
need not be stockholders of the Corporation.
2. Classes of Directors. The Board of Directors shall be
and is divided into three classes: Class I, Class II and Class III. No
one class shall have more than one director more than any other class.
If a fraction is contained in the quotient arrived at by dividing the
authorized number of directors by three, then, if such fraction is
one-third, the extra director shall be a member of Class I and, if such
fraction is two-thirds, one of the extra directors shall be a member of
Class I and the other extra director shall be a member of Class II,
unless otherwise provided for from time to time by resolution adopted by
a majority of the Board of Directors.
3. Election of Directors. Elections of directors need not
be by written ballot except as and to the extent provided in the By-Laws
of the Corporation.
4. Terms of Office. Each director shall serve for a term
ending on the date of the third annual meeting following the annual
meeting at which such director was elected; provided, however, that each
initial director in Class I shall serve for a term ending on the date of
the annual meeting next following the end of the Corporation's fiscal
year ending June 30, 1992; each initial director in Class II shall serve
for a term ending on the date of the annual meeting next following the
end of the Corporation's fiscal year ending June 30, 1993; and each
initial director in Class III shall serve for a term ending on the date
of the annual meeting next following the end of the Corporation's fiscal
year ending June 30, 1994.
5. Allocation of Directors Among Classes in the Event of
Increases or Decreases in the Number of Directors. In the event of any
increase or decrease in the authorized number of directors, (i) each
director then serving as such shall nevertheless
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continue as director of the class of which he is a member until the
expiration of his current term or his prior death, retirement or
resignation and (ii) 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 ensure
that no one class has more than one director more than any other class.
To the extent possible, consistent with the foregoing rule, any newly
created directorships shall be added to those classes whose terms of
office are to expire at the latest dates following such allocation, and
any newly eliminated directorships shall be subtracted from those
classes whose terms of office are to expire at the earliest dates
following such allocation, unless otherwise provided for from time to
time by resolution adopted by a majority of the directors then in
office, although less than a quorum.
6. Tenure. Notwithstanding any provisions to the contrary
contained herein, each director shall hold office until his successor is
elected and qualified, or until his earlier death, resignation or
removal.
7. Vacancies. Any vacancy in the Board of Directors,
however occurring, including a vacancy resulting from an enlargement of
the Board, may be filled only by vote of a majority of the directors
then in office, although less than a quorum, or by a sole remaining
director. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office, if applicable, and a
director chosen to fill a position resulting from an increase in the
number of directors shall hold office until the next election of the
class for which such director shall have been chosen and until his
successor is elected and qualified, or until his earlier death,
resignation or removal.
8. Quorum. A majority of the total number of the whole
Board of Directors shall constitute a quorum at all meetings of the
Board of Directors. In the event one or more of the directors shall be
disqualified to vote at any meeting, then the required quorum shall be
reduced by one for each such director so disqualified; provided,
however, that in no case shall less than one-third (1/3) of the number
so fixed constitute a quorum. In the absence of the quorum at any such
meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice other than announcement at the
meeting, until a quorum shall be present.
9. Action at Meeting. At any meeting of the Board of
Directors at which a quorum is present, the vote of a majority of those
present shall be sufficient to take any action, unless a different vote
is specified by law or the Corporation's Certificate of Incorporation or
By-Laws.
10. Removal. Any one or more or all of the directors may be
removed, with or without cause, by the holders of at least seventy-five
percent (75%) of the shares then entitled to vote at an election of
directors.
11. Stockholder Nominations and Introduction of Business,
Etc. Advance notice of stockholder nominations for election of directors
and other business to be brought by stockholders before a meeting of
stockholders shall be given in the manner provided in the By-Laws of the
Corporation.
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12. Amendments to Article. Notwithstanding any other
provisions of law, this Certificate of Incorporation or the
Corporation's By-Laws, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders
of at least seventy-five percent (75%) of the votes which all the
stockholders would be entitled to cast at any annual election of
directors or class of directors shall be required to amend or repeal, or
to adopt any provision inconsistent with, this Article NINTH.
TENTH: Until the closing of a firm commitment, underwritten
public offering of the Corporation's Common Stock (a "Public Offering"),
any action required or permitted to be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a
meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote on such action were present and voted.
Prompt notice of the taking of corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders
who have not consented in writing. Effective upon the closing of a
Public Offering, stockholders of the Corporation may not take any action
by written consent in lieu of a meeting. Notwithstanding any other
provision of law, this Certificate of Incorporation or the Corporation's
By-Laws, as amended, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders
of at least seventy-five percent (75%) of the votes which all the
stockholders would be entitled to cast at any annual election of
directors or class of directors shall be required to amend or repeal, or
to adopt any provision inconsistent with this Article TENTH.
ELEVENTH: Special meetings of stockholders may be called at any
time by the President or by the Chairman of the Board of Directors.
Business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the
notice of meeting. Notwithstanding any other provision of law, this
Certificate of Incorporation or the Corporation's By-Laws, as amended,
and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least seventy-five
percent (75%) of the votes which all the stockholders would be entitled
to cast at any annual election of directors or class of directors shall
be required to amend or repeal, or to adopt any provision inconsistent
with this Article ELEVENTH.
TWELFTH: 1. Actions, Suits and Proceedings Other than by or in
the Right of the Corporation. The Corporation shall indemnify each
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation), by reason of the fact that he is
or was, or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in
a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan)
(all such persons being referred to hereafter as an "Indemnitee"), or by
reason of any action alleged to have been taken or
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omitted in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
Notwithstanding anything to the contrary in this Article, except as set
forth in Section 6 below, the Corporation shall not indemnify an
Indemnitee seeking indemnification in connection with a proceeding (or
part thereof) initiated by the Indemnitee unless the initiation thereof
was approved by the Board of Directors of the Corporation.
2. Actions or Suits by or in the Right of the Corporation.
The Corporation shall indemnify any Indemnitee who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was, or has
agreed to become, a director or officer of the Corporation, or is or was
serving, or has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action
alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection
with such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application, that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses
(including attorneys' fees) which the Court of Chancery of Delaware or
such other court shall deem proper.
3. Indemnification for Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that
an Indemnitee has been successful, on the merits or otherwise, in
defense of any action, suit or proceeding referred to in Sections 1 and
2 of this Article, or in defense of any claim, issue or matter therein,
or on appeal from any such action, suit or proceeding, he shall be
indemnified against all expenses (including attorneys' fees) actually
and reasonably incurred by him or on his behalf in connection therewith.
Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee,
(ii) an adjudication that the Indemnitee was liable to the Corporation,
(iii) a plea of guilty or nolo contendere
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by the Indemnitee, (iv) an adjudication that the Indemnitee did not act
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and (v) with respect
to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee
shall be considered for the purposes hereof to have been wholly
successful with respect thereto.
4. Notification and Defense of Claim. As a condition
precedent to his right to be indemnified, the Indemnitee must notify the
Corporation in writing as soon as practicable of any action, suit,
proceeding or investigation involving him for which indemnity will or
could be sought. With respect to any action, suit, proceeding or
investigation of which the Corporation is so notified, the Corporation
will be entitled to participate therein at its own expense and/or to
assume the defense thereof at its own expense, with legal counsel
reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so as to assume such
defense, the Corporation shall not be liable to the Indemnitee for any
legal or other expenses subsequently incurred by the Indemnitee in
connection with such claim, other than as provided below in this Section
4. The Indemnitee shall have the right to employ his own counsel in
connection with such claim, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the
Corporation, and (ii) counsel to the Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the
conduct of the defense of such action or (iii) the Corporation shall not
in fact have employed counsel to assume the defense of such action, in
each of which cases the fees and expenses of counsel for the Indemnitee
shall be at the expense of the Corporation, except as otherwise
expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense
of any claim brought by or in the right of the Corporation or as to
which counsel for the Indemnitee shall have reasonably made the
conclusion provided for in clause (ii) above.
5. Advance of Expenses. Subject to the provisions of
Section 6 below, in the event that the Corporation does not assume the
defense pursuant to Section 4 of this Article of any action, suit,
proceeding or investigation of which the Corporation receives notice
under this Article, any expenses (including attorneys' fees) incurred by
an Indemnitee in defending a civil or criminal action, suit, proceeding
or investigation or any appeal therefrom shall be paid by the
Corporation in advance of the final disposition of such matter,
provided, however, that the payment of such expenses incurred by an
Indemnitee in advance of the final disposition of such matter shall be
made only upon receipt of an undertaking by or on behalf of the
Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be
indemnified by the Corporation as authorized in this Article. Such
undertaking may be accepted without reference to the financial ability
of such person to make such repayment.
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6. Procedure for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3
or 5 of this Article, the Indemnitee shall submit to the Corporation a
written request, including in such request such documentation and
information as is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification or advancement of expenses.
Any such indemnification or advancement of expenses shall be made
promptly, and in any event within 60 days after receipt by the
Corporation of the written request of the Indemnitee, unless with
respect to requests under Section 1, 2 or 5 the Corporation determines,
by clear and convincing evidence, within such 60-day period that the
Indemnitee did not meet the applicable standard of conduct set forth in
Section 1 or 2, as the case may be. Such determination shall be made in
each instance by (a) a majority vote of a quorum of the directors of the
Corporation consisting of persons who are not at that time parties to
the action, suit or proceeding in question ("disinterested directors"),
(b) if no such quorum is obtainable, a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action, suit or
proceeding in question, (d) independent legal counsel (who may be
regular legal counsel to the Corporation), or (e) a court of competent
jurisdiction.
7. Remedies. The right to indemnification or advances as
granted by this Article shall be enforceable by the Indemnitee in any
court of competent jurisdiction if the Corporation denies such request,
in whole or in part, or if no disposition thereof is made within the
60-day period referred to above in Section 6. Unless otherwise provided
by law, the burden of proving that the Indemnitee is not entitled to
indemnification or advancement of expenses under this Article shall be
on the Corporation. Neither the failure of the Corporation to have a
determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct, nor an actual determination
by the Corporation pursuant to Section 6 that the Indemnitee has not met
such applicable standard of conduct, shall be a defense to the action or
create a presumption that the Indemnitee has not met the applicable
standard of conduct. The Indemnitee's expenses (including attorneys'
fees) incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall also
be indemnified by the Corporation.
8. Subsequent Amendment. No amendment, termination or
repeal of this Article or of the relevant provisions of the General
Corporation Law of Delaware or any other applicable laws shall affect or
diminish in any way the rights of any Indemnitee to indemnification
under the provisions hereof with respect to any action, suit, proceeding
or investigation arising out of or relating to any actions, transactions
or facts occurring prior to the final adoption of such amendment,
termination or appeal.
9. Other Rights. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of any
other rights to which an Indemnitee seeking indemnification or
advancement of expenses may be entitled under any law (common or
statutory), agreement or vote of stockholders or disinterested directors
or
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otherwise, both as to action in his official capacity and as to action
in any other capacity while holding office for the Corporation, and
shall continue as to an Indemnitee who has ceased to be a director or
officer, and shall inure to the benefit of the estate, heirs, executors
and administrators of the Indemnitee. Nothing contained in this Article
shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors
providing indemnification rights and procedures different from those set
forth in this Article. In addition, the Corporation may, to the extent
authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Corporation
or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this Article.
10. Partial Indemnification. If an Indemnitee is entitled
under any provision of this Article to indemnification by the
Corporation for some or a portion of the expenses (including attorneys'
fees), judgments, fines or amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any
action, suit, proceeding or investigation and any appeal therefrom but
not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in
settlement to which the Indemnitee is entitled.
11. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise (including any
employee benefit plan) against any expense, liability or loss incurred
by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the General
Corporation Law of Delaware.
12. Merger or Consolidation. If the Corporation is merged
into or consolidated with another corporation and the Corporation is not
the surviving corporation, the surviving corporation shall assume the
obligations of the Corporation under this Article with respect to any
action, suit, proceeding or investigation arising out of or relating to
any actions, transactions or facts occurring prior to the date of such
merger or consolidation.
13. Savings Clause. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each
Indemnitee as to any expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with any action,
suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion
of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
14. Definitions. Terms used herein and defined in Section
145(h) and Section 145(i) of the General Corporation Law of Delaware
shall have the respective meanings assigned to such terms in such
Section 145(h) and Section 145(i).
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15. Subsequent Legislation. If the General Corporation Law
of Delaware is amended after adoption of this Article to expand further
the indemnification permitted to Indemnitees, then the Corporation shall
indemnify such persons to the fullest extent permitted by the General
Corporation Law of Delaware, as so amended.
THIRTEENTH: The stockholder vote required to approve Business
Combinations (hereinafter defined) shall be as set forth in this
Article.
1. Higher Vote for Business Combinations. In addition to
any affirmative vote required by law, the By-Laws of the Corporation or
this Certificate of Incorporation, and except as otherwise expressly
provided in Section 3 of this Article THIRTEENTH:
(a) Any merger or consolidation of the Corporation
or any Subsidiary with (i) any Interested Stockholder or (ii) any other
corporation (whether or not itself an Interested Stockholder) which is,
or after such merger or consolidation would be, an Affiliate or
Associate of an Interested Stockholder; or
(b) Any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder of all or a Substantial Part of
the assets of the Corporation or any Subsidiary thereof; or
(c) The issuance, exchange or transfer by the
Corporation or any Subsidiary (in one transaction or a series of
transactions) of any securities of the Corporation or any Subsidiary to
any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder in exchange for cash, securities or other
consideration (or a combination thereof) having an aggregate Fair Market
Value of, equal to or in excess of a Substantial Part of the assets of
the Corporation; or
(d) The adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf
of an Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(e) Any reclassification of securities (including
any reverse stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its Subsidiaries
or any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(f) Any agreement, contract or other arrangement
with an Interested Stockholder (or in which the Interested Stockholder
has an interest other than proportionately as a stockholder) providing
for any one or more of the actions specified in subsections (a) to (e)
of this Section 1 of this Article THIRTEENTH,
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shall require the affirmative vote of the holders of at least
seventy-five percent (75%) of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors or class of directors (the "Voting Stock"),
voting together as a single class. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required or that a
lesser percentage may be specified by law or in any agreement with any
national securities exchange or otherwise.
2. Definition of "Business Combination". The term "Business
Combination" as used in this Article THIRTEENTH shall mean any
transaction which is referred to in any one or more of subsections (a)
through (f) of Section 1.
3. When Higher Vote Is Not Required. The provisions of
Section 1 of this Article THIRTEENTH shall not be applicable to any
particular Business Combination, and such Business Combination shall
require only such affirmative vote, if any, as is required by law and
any other provision of this Certificate of Incorporation or the By-Laws
of the Corporation, if the conditions specified in either of the
following subsections (a) or (b) are met:
(a) Approval by Disinterested Directors. The
Business Combination shall have been approved by a majority of the
Disinterested Directors.
(b) Price and Procedure Requirements. All of the
following eight conditions shall have been met:
(i) The transaction constituting the
Business Combination shall provide that the holders of Common Stock
receive, in exchange for their stock, per share consideration
(consisting of the cash and the Fair Market Value, as of the date of the
consummation of the Business Combination, of consideration other than
cash) at least equal to the highest of the following:
(A) If applicable, the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of Common Stock the beneficial ownership of
which it acquired (1) within the two-year period immediately prior to
the initial day in which public trading of the Common Stock occurs
following the first public announcement of the proposed Business
Combination (the "Announcement Date") or (2) in the transaction in which
it became an Interested Stockholder, whichever is higher; or
(B) The Fair Market Value per share
of Common Stock on the Announcement Date or on the date on which the
Interested Stockholder became an Interested Stockholder (the
"Determination Date"), whichever is higher.
All per share prices shall be adjusted to reflect fairly any intervening
stock split, reverse stock split, stock dividend, recapitalization,
reorganization or similar event affecting the Common Stock.
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(ii) If the transaction constituting the
Business Combination shall also provide that the holders of any class of
outstanding Voting Stock, other than Common Stock, if any, are to
receive consideration in exchange for their stock, the per share
consideration (consisting of the cash and the Fair Market Value, as of
the date of the consummation of the Business Combination, of
consideration other than cash) shall be at least equal to the highest of
the following (it being intended that the requirements of this
subsection (b)(ii) shall be required to be met with respect to every
class of outstanding Voting Stock, whether or not the Interested
Stockholder beneficially owns any shares of a particular class of Voting
Stock):
(A) If applicable, the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of such class of Voting Stock the beneficial
ownership of which it acquired (1) within the two-year period
immediately prior to the Announcement Date or (2) in the transaction in
which it became an Interested Stockholder, whichever is higher;
(B) If applicable, the highest
preferential amount per share to which the holders of shares of such
class of Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
regardless of whether the Business Combination to be consummated
constitutes such an event; or
(C) The Fair Market Value per share
of such class of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher.
All per share prices shall be adjusted to reflect fairly any intervening
stock split, reverse stock split, stock dividend, recapitalization,
reorganization or similar event affecting the Common Stock.
(iii) The consideration to be received by
holders of a particular class of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as was previously
paid by or on behalf of the Interested Stockholder in connection with
its direct or indirect acquisition of beneficial ownership of shares of
such class of Voting Stock. If the Interested Stockholder beneficially
owns shares of any class of Voting Stock which were acquired with
varying forms of consideration, the form of consideration to be received
by holders of such class of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of such class of
Voting Stock beneficially owned by it prior to the Announcement Date.
(iv) After such Interested Stockholder has
become an Interested Stockholder and prior to the consummation of such
Business Combination: (A) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to declare and
pay at the regular date therefor any full quarterly dividends (whether
or not cumulative) on any outstanding preferred stock; and (B) there
shall have been (1) no
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reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock)
except as approved by a majority of the Disinterested Directors, and (2)
an increase in such annual rate of dividends (as necessary to prevent
any such reduction) in the event of any reclassification (including any
reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to increase such
annual rate is approved by a majority of the Disinterested Directors.
(v) After such Interested Stockholder has
become an Interested Stockholder, such Interested Stockholder shall not
have received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(vi) A proxy or information statement
describing the proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed by the Interested Stockholder to
all stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions).
(vii) Such Interested Stockholder shall not
have made any major change in the Corporation's business or equity
capital structure without the approval of the majority of the
Disinterested Directors.
(viii) After such Interested Stockholder has
become an Interested Stockholder and prior to the consummation of such
Business Combination, such Interested Stockholder shall not have become
the beneficial owner of any additional shares of Voting Stock.
4. Certain Definitions. For the purposes of this Article:
(a) The term "person" shall mean any individual,
firm, corporation or other entity and shall include any group comprised
of any person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of Voting Stock of the Corporation.
(b) The term "Interested Stockholder" shall mean any
person who or which:
(i) Is at such time the beneficial owner,
directly or indirectly, of shares of the Corporation having more than
fifteen percent (15%) of the voting power of the then outstanding Voting
Stock; or
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(ii) At any time within the two-year period
immediately prior to such time was the beneficial owner, directly or
indirectly, of shares of the Corporation having more than fifteen
percent (15%) of the voting power of the then outstanding Voting Stock;
or
(iii) Is at any time an assignee of or has
otherwise succeeded to the beneficial ownership of any shares of Voting
Stock which were at any time within the two-year period immediately
prior to such time beneficially owned by any Interested Stockholder, if
such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933 and such assignment or
succession was not approved by a majority of the Disinterested
Directors;
provided, however, that the term "Interested Stockholder" shall not
include (A) the Corporation or any Subsidiary thereof, (B) any employee
benefit plan of the Corporation or any Subsidiary thereof, (C) any
person holding shares of Voting Stock organized, appointed or
established by the Corporation or any Subsidiary thereof pursuant to the
terms of any such employee benefit plan or any person who, alone or with
its Affiliates or Associates, was the beneficial owner of 15% or more of
the outstanding Voting Stock on June 1, 1991. Notwithstanding the
foregoing, no person shall become an "Interested Stockholder" as the
result of an acquisition of Voting Stock of the Corporation which, by
reducing the number of outstanding shares, increases the proportionate
number of shares beneficially owned by such person to 15% or more of the
Voting Stock of the Corporation then outstanding.
(c) A person shall be a "beneficial owner" of any
shares of Voting Stock:
(i) Which are beneficially owned, directly
or indirectly, by such person or any of its Affiliates or Associates;
(ii) Which such person or any of its
Affiliates or Associates has (A) the right to acquire (whether or not
such right is exercisable immediately) pursuant to any agreement,
arrangement or understanding (other than customary arrangements between
underwriters and selling group members with respect to a bona fide
public offering of securities) or upon the exercise of conversion
rights, exchange rights, warrants or options or otherwise (other than
rights issued under a Stockholder Rights Plan) or (B) the right to vote
pursuant to any agreement, arrangement or understanding (provided that a
person shall not be deemed to be the beneficial owner of any securities
if such agreement or understanding arises solely from a revocable proxy
given in response to a public proxy or consent solicitation); or
(iii) Which are beneficially owned, directly
or indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding
(other than customary arrangements between underwriters and selling
group members with respect to a bona fide public offering of
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securities) for the purpose of acquiring, holding or voting (except
pursuant to a revocable proxy as described in clause (c)(ii)(B) above)
of any shares of Voting Stock.
(d) For the purposes of determining whether a person
is an Interested Stockholder pursuant to subsection 4(b), the number of
shares of Voting Stock deemed to be outstanding shall include shares
deemed owned by an Interested Stockholder through application of
subsection 4(c) but shall not include any other shares of Voting Stock
which may be issuable pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights, exchange
rights, warrants or options or otherwise.
(e) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on June 30, 1991 (the term registrant in said Rule 12b-2 meaning,
in this case, the Corporation).
(f) "Beneficially owned" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on June 15,
1991.
(g) "Disinterested Director" means any member of the
Board of Directors of the Corporation who is not an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder
and who was a member of the Board of Directors on June 15, 1991 or prior
to the time that the Interested Stockholder became an Interested
Stockholder, and any successor of a Disinterested Director who is not an
Interested Stockholder, who is not an Affiliate or Associate of the
Interested Stockholder, and who is recommended or elected to succeed a
Disinterested Director by a majority of the Disinterested Directors then
on the Board of Directors.
(h) "Fair Market Value" means: (i) in the case of
stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on
the Composite Tape for New York Stock Exchange Listed Stocks or, if such
stock is not quoted on the Composite Tape, on the New York Stock
Exchange or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such registered stock is listed
or, if such stock is not listed on any such exchange, the highest
closing sale price or the highest closing bid quotation, respectively,
with respect to a share of such stock during the 30-day period preceding
the date in question on the National Market System or the National
Association of Securities Dealers, Inc. Automated Quotations System, as
the case may be, or any system then in use or, if no such quotations are
available, the fair market value on the date in question of a share of
such stock as determined by a majority of the Disinterested Directors in
good faith; and (ii) in the case of property other than cash or stock,
the fair market value of such property on the date in question as
determined by the Board of Directors in good faith.
(i) In the event of any Business Combination in
which the Corporation survives, the phrase "consideration other than
cash" as used in subsection 3(b) of this
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Article shall include the shares of Common Stock and/or the shares of
any other class of outstanding Voting Stock retained by the holders of
such shares.
(j) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the Corporation.
(k) "Substantial Part" of the assets of the
Corporation shall mean more than ten percent (10%) of the fair market
value of the total assets of the Corporation as of the end of its most
recent fiscal quarter ending prior to the time the determination is
made.
5. Power of Board of Directors. The Disinterested Directors
shall have the power and duty to determine for purposes of this Article,
on the basis of information known to them after reasonable inquiry, all
facts necessary to determine compliance with this Article THIRTEENTH,
including, without limitation, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Voting Stock beneficially owned
by any person, (c) whether a person is an Affiliate or Associate of
another, (d) whether the requirements of subsection 3(b) have been met
with respect to any Business Combination and (e) whether the assets
which are the subject of any Business Combination equal or exceed, or
whether the consideration to be received from the issuance or transfer
of securities by the Corporation or any Subsidiary in any Business
Combination equals or exceeds, a Substantial Part of the assets of the
Corporation. Any such determination made in good faith shall be binding
and conclusive.
6. No Effect on Fiduciary Obligations. Nothing contained in
this Article THIRTEENTH shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
7. Consideration. Consideration for shares to be paid to
any stockholder pursuant to this Article shall be the minimum
consideration payable to the stockholder and shall not limit a
stockholder's right under any provision of law or otherwise to receive
greater consideration for any shares of the Corporation.
8. Fiduciary Duty of Directors. The fact that any Business
Combination complies with the provisions of Section 3 of this Article
shall not be construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof, to
approve such Business Combination or recommend its adoption or approval
to the stockholders of the Corporation, nor shall such compliance limit,
prohibit or otherwise restrict in any manner the Board of Directors or
any member thereof with respect to evaluations of or actions and
responses taken with respect to such Business Combination.
9. Amendments to Article. Notwithstanding any other
provisions of law, this Certificate of Incorporation or the By-Laws of
the Corporation, and notwithstanding the fact that a lesser percentage
may be specified by law, the affirmative vote of the holders of at least
seventy-five percent (75%) of the votes which all the stockholders would
be
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entitled to cast at any annual election of directors or class of
directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article THIRTEENTH.
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate
of Incorporation to be signed by its duly authorized officer on this 27th day of
February, 1995.
BAY NETWORKS, INC.
By: /s/ Montgomery Kerston
------------------------------------
Montgomery Kersten
Vice President, General Counsel
and Secretary
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