1
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
As Amended by AMENDMENTS filed
December 2, 1985,
November 24, 1986,
November 20, 1987 (2) and
November 21, 1997
OF
SL INDUSTRIES, INC.
I. Name. The name of the corporation is SL INDUSTRIES, INC.
II. Registered Office and Agent. The location of the corporation's
current registered office in the State of New Jersey is 28 West State Street,
Trenton, New Jersey 08608 and the name of the current registered agent thereon
and in charge thereof, upon whom process against this corporation may be served,
is The Corporation Trust Company.
III. Objects. A. The objects for which the corporation is formed are:
(1) To manufacture, purchase or otherwise acquire and to hold, own,
mortgage, sell or otherwise dispose of, trade and deal in and with electronic
and other components, parts, materials and products.
(2) To acquire by purchase, assignment, grant, license or otherwise,
to apply for, secure, lease or in any manner obtain, to develop, hold, own, use,
exploit, operate, enjoy and introduce, to sell, assign, lease, mortgage, pledge,
grant licenses and rights of all kinds in respect of, or otherwise dispose of,
and generally to deal in and with and turn to account for any or all purposes,
either for itself or as nominee or agent for others:
(a) Any and all inventions, devices, processes, discoveries and
formulae, and improvements and modifications thereof and rights and interests
therein;
(b) Any and all letters patent or applications for letters
patent of the United States of America or of any other country, state, locality
or authority, and any and all rights, interests and privileges connected
therewith or incidental or appertaining thereto;
(c) Any and all copyrights granted by the United States of
America or any other country, state, locality or authority, and any and all
rights, interests and privileges connected therewith or incidental or
appertaining thereto; and
(d) Any and all trade-marks, trade names, trade symbols, labels,
designs and other indications of origin and ownership granted by or recognized
under the laws of the United States of America or any other country, state,
locality or authority, and any and all rights, interests and privileges
connected therewith or incidental or appertaining thereto.
2
(3) To manufacture, purchase, sell and generally trade and deal in
and with any article, product or commodity produced as the result of or through
the use of any such inventions, devices, processes, discoveries, formulae and
improvements and modifications thereof, or the like, or any articles, products,
commodities, supplies and materials used or suitable to be used in connection
therewith or in any manner applicable or incidental thereto; to grant licenses,
sub-licenses, rights, interests and privileges in respect of any of the
foregoing, and to supervise or otherwise exercise such control over its licenses
or grantees and the business conducted by them, as may be agreed upon in its
contracts or agreements with such licensees or grantees for the protection of
its rights and interests therein, and to secure to it the payment of agreed
royalties or other considerations.
(4) To carry on and conduct the business of research and development
in any and all fields for the purpose of leasing and/or selling such services
and the products thereof; including the conception, development, execution and
completion of special scientific and engineering projects, on its own behalf and
on behalf of any other person, firm, association, corporation, public or
private, or the government of the United States of America, or any foreign
government, or any political subdivision thereof or any governmental agency.
(5) To act as agent, manufacturer's agent, sales representative,
distributor, representative, dealer, broker, wholesaler, retailer, or in any
other capacity as principal or agent, and with any and all persons, firms,
partnerships, corporations, and others, and to buy, sell, distribute, export,
import, pledge, make advances upon, or otherwise deal in and deal with goods,
wares and merchandise of every class and description; to act as dealers,
distributors, selling agents or representatives, sectionally, nationally or
internationally, of manufacturers, producers, distributors, dealers and others;
to establish and maintain dealerships and agencies of all kinds; to represent,
in any capacity, manufacturers, wholesalers, jobbers and dealers in the sale and
distribution of their products.
(6) To purchase, lease, rent, construct, erect or otherwise acquire,
and to hold, own, operate, conduct, sell, lease or otherwise dispose of
factories, manufacturing plants, workshops, laboratories, office buildings, or
other structures as may seem necessary, useful or incidental to the proper
accomplishment of any of the purposes of the corporation; to purchase, acquire,
hold, own, use, deal in, sell, lease, mortgage, pledge or otherwise dispose of
real estate or any interests therein without limit as to amount within or
without the State of New Jersey, in other states, territories or dependencies of
the United States and in foreign countries.
(7) To manufacture, purchase or otherwise acquire goods, merchandise
and personal property of every class, and to hold, own, mortgage, sell or
otherwise dispose of, trade, deal in and with the same.
(8) To purchase, take by devise or bequest, hold, mortgage and
convey such real estate as the purposes of the corporation shall require and all
other real estate which shall have been conveyed to the corporation by way of
security or in satisfaction of debts or purchased at sales upon judgment or
decree duly obtained.
(9) To acquire and pay for in cash, stock or bonds of this
corporation, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
(10) To apply for, obtain, register, purchase, lease or otherwise
acquire, and to hold, use, own, operate and introduce and to sell, assign or
otherwise dispose of, any trade-marks, trade names, copyrights, patents,
inventions, improvements and processes used in connection with or secured under
letters patent of the United States or any foreign country, and to use,
exercise, develop, grant licenses in respect of, or otherwise to turn to account
any such trade-marks, trade names, patents, licenses, processes, copyrights, or
any such property or rights.
3
(11) To purchase, hold, sell, assign, transfer, mortgage, pledge or
otherwise dispose of the shares of the capital stock of, or any bonds,
securities or evidences of indebtedness created by, any other corporation or
corporations organized under the laws of New Jersey or any other state or any
foreign country, always subject, however, to the laws of the State of New
Jersey, and while the owner of such stock, to exercise all the rights, powers,
and privileges of ownership, including the right to vote thereon.
(12) To enter into, make, perform and carry out contracts of every
kind and for any lawful purpose with any person, firm, association, corporation
or body politic or government.
(13) To borrow or raise money without limit as to amount and to draw,
make, accept, endorse, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness and to secure the payment of any of
the foregoing and the interest thereon by mortgage upon or pledge, or assignment
in trust of the whole or any part of the property of the corporation, and to
sell, pledge or otherwise dispose of such bonds and other evidences of
indebtedness for the purposes of the corporation.
(14) To purchase, hold, reissue and sell the shares of its own
capital stock, provided that shares of its own capital stock belonging to it
shall not be voted upon directly or indirectly.
(15) To conduct business in any of the states, territories,
possessions or dependencies of the United States, in the District of Columbia,
and in any and all foreign countries, and to have one or more offices therein
and to hold, purchase, mortgage and convey real and personal property therein
without limit as to amount, but always subject to the laws of such state,
territory, possession, dependency or country.
(16) In general, to carry on any other business in connection with
the foregoing, and to have and exercise all the powers conferred by Title 14A,
Corporations, General, Revised Statutes of New Jersey, and to do any or all of
the things hereinbefore set forth and to the same extent as natural persons
might or could do, and in any part of the world.
B. The foregoing clauses shall be construed both as objects and
powers and, except where otherwise expressed, such objects and powers shall not
be limited or restricted by reference to or inference from the terms of any
other clause in this restated certificate of incorporation, but the objects and
powers so specified shall be regarded as independent objects and powers, and it
is hereby expressly provided that the foregoing enumeration of specific powers
shall not be held to limit or restrict in any manner the powers of the
corporation.
IV. Shares. The total number of shares of all classes of stock which
the corporation shall be authorized to issue is thirty-one million (31,000,000)
shares, divided into six million (6,000,000) shares of Preferred Stock, without
par value (herein called "Preferred Stock"), and twenty-five million
(25,000,000) shares of Common Stock, of the par value of twenty cents ($0.20)
per share (herein called "Common Stock").
A. PREFERRED STOCK.
1. The Preferred Stock may be issued in one or more series. The
designations, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the
Preferred Stock of each series shall be such as are stated and expressed herein
and, to the extent not stated and expressed herein, shall be such as may be
fixed by the Board of Directors* (authority so to do being hereby expressly
granted) and stated and expressed in a resolution or resolutions adopted by the
Board of Directors providing for the issue of Preferred Stock of such series.
Such resolution or resolutions shall (a) specify the series to which such
Preferred Stock shall
- -------------------------------
* See Amendment filed November 20, 1997
4
belong, (b) state whether a dividend shall be payable in cash, stock or
otherwise, whether such dividends shall be cumulative or noncumulative and
whether the Preferred Stock of such series shall rank on a parity with or junior
to other series of Preferred Stock as to dividends, and fix the dividend rate
therefor (or the manner of computing the rate of such dividends thereon), (c)
fix the amount which the holders of the Preferred Stock of such series shall be
entitled to be paid in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the corporation, (d) state whether or not the
Preferred Stock of such series shall be redeemable and at what times and under
what conditions and the amount or amounts payable thereon in the event of
redemption; and may, in a manner not inconsistent with the provisions of this
Article IV, (i) limit the number of shares of such series which may be issued,
(ii) provide for a sinking fund for the purchase or redemption, or a purchase
fund for the purchase, of shares of such series and the terms and provisions
governing the operation of any such fund and the status as to reissuance of
shares of Preferred Stock purchased or otherwise reacquired or redeemed or
retired through the operation thereof, and that so long as the corporation is in
default as to such sinking or purchase fund the corporation shall not (with such
exceptions, if any, as may be provided) pay any dividends upon or purchase or
redeem shares of capital stock ranking junior to the Preferred Stock with
respect to dividends or distribution of assets upon liquidation (referred to in
this Paragraph A of Article IV as "stock ranking junior to the Preferred
Stock"), (iii) grant voting rights to the holders of shares of such series in
addition to those required by law, (iv) impose conditions or restrictions upon
the creation of indebtedness of the corporation or upon the issue of additional
Preferred Stock or other capital stock ranking on a parity therewith or prior
thereto with respect to dividends or distribution of assets upon liquidation,
(v) impose conditions or restrictions upon the payment of dividends upon, or the
making of other distributions to, or the acquisition of, stock ranking junior to
the Preferred Stock, (vi) grant to the holders of the Preferred Stock of such
series the right to convert such stock into other securities, and (vii) grant
such other special rights to the holders of shares of such series as the Board
of Directors may determine and as shall not be inconsistent with the provisions
of this Article IV. The term "fixed for such series" and similar terms as used
in the Paragraph A shall mean stated and expressed herein or in a resolution or
resolutions adopted by the Board of Directors providing for the issue of
Preferred Stock of the series referred to therein.
2. In the event of any liquidation, dissolution or winding up of
the affairs of the corporation, then, before any distribution or payment shall
be made to the holders of any class of stock of the corporation ranking junior
to the Preferred Stock, the holders of the Preferred Stock of the respective
series shall be entitled to be paid in full the respective amounts fixed for
such series. After such payment shall have been made in full to the holders of
the Preferred Stock, the remaining assets and funds of the corporation shall be
distributed among the holders of the stocks of the corporation ranking junior to
the Preferred Stock according to their respective rights. In the event that the
assets of the corporation available for distribution to the holders of Preferred
Stock shall not be sufficient to make the payment herein required to be made in
full, such assets shall be distributed to the holders of the respective shares
of Preferred Stock pro rata in proportion to the amounts payable hereunder upon
each share thereof.
3. Except as otherwise provided in any resolution of the Board of
Directors providing for the issuance of any particular series of Preferred
Stock, shares of Preferred Stock redeemed or otherwise acquired by the
corporation shall assume the status of authorized but unissued Preferred Stock
and may thereafter, subject to the provisions of this Paragraph A and of any
restrictions contained in any resolution of the Board of Directors providing for
the issue of any particular series of Preferred Stock, be reissued in the same
manner as other authorized but unissued Preferred Stock.
B. COMMON STOCK.
1. All or any part of the authorized shares of Common Stock of the
corporation may be issued from time to time and for such consideration, not less
than the par value thereof, as may be determined and fixed from time to time by
the Board of Directors, as provided by law.
2. Subject to the prior and superior rights of the Preferred Stock,
and on the conditions set forth in the foregoing Paragraph A of this Article IV
or in any resolution of the Board of Directors
5
providing for the issuance of any particular series of Preferred Stock, and not
otherwise, such dividends (payable in cash, stock or otherwise) as may be
determined by the Board of Directors may be declared and paid on the Common
Stock from time to time out of any funds legally available therefor.
3. Subject to the provisions of this Article IV, the holders of
Common Stock shall be entitled to one vote for each share held at all meetings
of the shareholders of the corporation.
4. After payment shall have been made in full to the holders of the
Preferred Stock in the event of any liquidation, dissolution or winding up of
the affairs of the corporation, the remaining assets and funds of the
corporation shall be distributed among the holders of the Common Stock according
to their respective shares.
C. GENERAL PROVISIONS.
1. No shareholder shall be entitled as a matter of right to
subscribe for or receive additional shares of any class of stock of the
corporation, whether now or hereafter authorized or any bonds, debentures or
other securities convertible into stock, but such additional shares of stock or
other securities convertible into stock may be issued or disposed of by the
Board of Directors to such persons and on such terms as in its discretion it
shall deem advisable.
V. Directors. The directors constituting the current Board of
Directors of the corporation are:
NAME ADDRESS
---- -------
Grant Heilman Box 609
Buena Vista, CO 81211
NAME ADDRESS
---- -------
William M. Hess 33 E. Main St.
Moorestown, NJ 08057
John C. Instone Three Greentree Centre
Suite 201
Marlton, NJ 08053
Byrne Litschgi Atlantic Bank Building
501 E. Kennedy Blvd.
Tampa, FL 33601
Donald J. Lloyd-Jones 37 Chestnut Hill Lane
Stamford, CT 06903
Marlin Miller, Jr. Hill & George Streets
Wyomissing, PA 19610
Mandell Shimberg Barnett Bank Building
6
Suite 400
1000 N. Ashley Drive
Tampa, FL 33602
VI. Duration. The duration of the corporation is to be perpetual.
VII. Directors' Authority. In furtherance and not in limitation of
the powers conferred by statute, the Board of Directors is expressly authorized:
A. To make, alter and amend the by-laws of the corporation.
B. To fix and vary the amount of the working capital of the
corporation and to determine what, if any, dividends shall be declared and paid.
C. To authorize and cause to be executed mortgages and liens upon
the real and personal property of the corporation.
D. To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose or to
abolish any such reserve in the manner in which it was created.
E. By a resolution passed by a majority vote of the whole board, if
so provided in the by-laws, to designate two or more of its number to constitute
an executive committee, which committee shall exercise, as provided in said
resolution or in the by-laws, the powers of the Board of Directors in the
management of the business, affairs and property of the corporation during the
intervals between the meetings of the directors.
F. To determine from time to time whether and, if allowed, under
what conditions and regulations the accounts and books of the corporation (other
than the stock and transfer books), or any of them, shall be open to the
inspection of the stockholders, and the stockholders' rights in this respect are
and shall be restricted and limited accordingly.
VIII. Director and Officer Liability and Indemnification.
A. To the fullest extent that the laws of the State of New Jersey,
as they exist or may hereafter be amended, permit the limitation or elimination
of the liability of directors and officers, no director or officer of this
corporation shall be liable to the corporation or its shareholders for damages
for breach of any duty owed to the corporation or its shareholders.
B. The corporation shall indemnify any and all persons whom it has
the power to indemnify pursuant to the New Jersey Business Corporation Act
against any and all expenses, judgments, fines, amounts paid in settlement, and
any other liabilities to the fullest extent permitted by such law and may, in
the discretion of the Board of Directors, purchase and maintain insurance, at
its expense, to protect itself and such persons against any such expense,
judgment, fine, amount paid in settlement, or other liability, whether or not
the corporation would have the power to so indemnify such person under the New
Jersey Business Corporation Act. The indemnification provided herein shall not
be deemed to limit the right of the corporation to indemnify any other person or
any such expenses to the full extent permitted by law nor shall it be deemed
exclusive of any other rights to which any person seeking indemnification from
the corporation may be entitled under any agreement, vote of shareholders or
directors or otherwise, both as to acts in his official capacity and as to
action in another capacity while holding such office.
7
C. No amendment to or repeal of this Article VIII shall apply to or
have any effect on the liability or alleged liability of any director or officer
of this corporation for or with respect to any acts or omissions of such
director or officer occurring prior to such amendment or repeal, or any
indemnification right of any person arising from any matter occurring prior to
such amendment or repeal.
IX. Related Transactions. In the absence of fraud, no contract or
other transaction between the corporation and any other corporation or any
individual, association or firm shall be in any way affected or invalidated by
the fact that any of the directors of the corporation are interested in such
other corporation, association or firm or personally interested in such contract
or transaction; provided that such interest shall be fully disclosed or
otherwise known to the Board of Directors at the meeting of said board at which
such contract or transaction is authorized or confirmed; and provided further
that at such meeting there is present a quorum of directors not so interested
and that such contract or transaction shall be approved by a majority of such
quorum. Any director of the corporation may vote upon any contract or other
transaction between this corporation and any subsidiary or affiliated
corporation without regard to the fact that he is also a director of such
subsidiary or affiliated corporation.
X. Books and Records. The corporation may have one or more offices
within or outside the State of New Jersey at which the directors may hold their
meetings and keep the books of the corporation, but the corporation shall always
keep at its principal office in New Jersey a transfer book in which the
transfers of stock can be made, entered and registered, and also a book
containing the names and addresses of the stockholders and the number of shares
held by them respectively, which shall be open at all times during the business
hours to the examination of the stockholders. Elections of directors need not be
by ballot unless the by-laws of the corporation so provide.
XI. Amendment. Subject to the provisions of Article XII below, the
corporation reserves the right to amend, alter or repeal any provision contained
in this restated certificate of incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
XII. A. Required Vote for Mergers, Sales of Substantially All of
the Corporation's Assets and Dissolution.
The affirmative vote of the holders of not less than two-thirds of the votes
cast by the holders of the outstanding common shares of the corporation shall be
required:
(1) to adopt any agreement for, or to approve, the merger or
consolidation of the corporation with or into any other
corporation;
(2) to authorize any sale, transfer, or exchange of all or
substantially all of the assets of the corporation; or
(3) to authorize or adopt any plan for the dissolution of
the corporation;
except that any such action that has been approved by resolution adopted by at
least two-thirds of the directors then in office may be authorized by the
affirmative vote of a majority of the votes cast by the holders of the common
shares of the corporation.
B. Higher Vote for Certain Business Combinations.
8
(1) When Higher Vote is Required. In addition to any
affirmative vote required by law or this restated certificate of incorporation,
and except as otherwise expressly provided in subparagraph (3) of this paragraph
B:
(a) any merger or consolidation of the
corporation or any Subsidiary (as
hereinafter defined) with (i) any
Interested Shareholder (as hereinafter
defined) or (ii) any other corporation
(whether or not itself an Interested
Shareholder) which is, or after such
merger or consolidation would be, an
Affiliate (as hereinafter defined) of an
Interested Shareholder; 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
Shareholder or any Affiliate of any
Interested Shareholder of any assets of
the corporation or any Subsidiary having
an aggregate Fair Market Value (as
hereinafter defined) of $1,000,000 or
more; or
(c) the issuance or transfer by the
corporation or any Subsidiary (in one
transaction or a series of transactions)
of any securities of the corporation or
any Subsidiary to any Interested
Shareholder or any Affiliate of any
Interested Shareholder in exchange for
cash, securities or other property (or a
combination thereof) having an aggregate
Fair Market Value of $1,000,000 or more;
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 Shareholder or any
Affiliate of any Interested Shareholder;
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 Shareholder) which has the
effect, directly, or indirectly, of
increasing the proportionate share of
the outstanding common shares or
convertible securities of the
corporation or any Subsidiary which is
directly or indirectly owned by any
Interested Shareholder or any Affiliate
of any Interested Shareholder;
shall require the affirmative vote of the holders of at least seventy-five
percent (75%) of the outstanding common shares of the corporation. 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, but such
affirmative vote shall be required in addition to any affirmative vote of the
holders of the outstanding common shares required by law or this restated
certificate of incorporation.
(2) Definition of "Business Combination." The term "Business
Combination" as used in this Article XII shall mean any transaction which is
referred to in any one or more of clauses (a) through (e) of subparagraph (1) of
this paragraph B.
(3) When Higher Vote is Not Required. The provisions of
subparagraph (1) of this paragraph B shall not be applicable to any particular
Business Combination, and such Business
9
Combination shall require only such affirmative vote as is required by law, any
other provision of this restated certificate of incorporation, or any agreement
with any national securities exchange, if all of the conditions specified in
either of the following clauses (a) and (b) are met:
(a) Approval by Disinterested Directors. The
Business Combination shall have been approved by a majority of the Disinterested
Directors (as hereinafter defined).
(b) Price, Form of Consideration and Procedural
Requirements. All of the following conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the Business
Combination of consideration other than cash to be received per
share by holders of the common shares in such Business
Combination shall be at least equal to the highest amount
determined under subclauses (a), (b) and (c) below:
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Shareholder for any common shares
acquired by it (1) within the two-year period
immediately prior to the first public
announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in
the transaction in which it became an Interested
Shareholder, whichever is higher;
(b) the Fair Market Value per common share on the
Announcement Date or on the date on which the
Interested Shareholder became an Interested
Shareholder (such latter date is referred to in
this Article XII as the "Determination Date"),
whichever is higher; and
(c) (if applicable) the price per common share equal
to the Fair Market Value per common share
determined pursuant to subclause (b)(i)(b)
above, multiplied by the ratio of (1) the
highest per common share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested
Shareholder for any common shares acquired by it
within the two-year period immediately prior to
the Announcement Date to (2) the Fair Market
Value per common share on the first day in such
two-year period upon which the Interested
Shareholder acquired any common shares.
(ii) The consideration to be received by holders of common
shares shall be in cash or in the same form as the Interested
Shareholder has previously paid for common shares. If the
Interested Shareholder has paid for common shares with varying
forms of consideration, the form of consideration shall be
either cash or the form used to acquire the largest number of
common shares previously acquired by it.
(iii) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
Business Combination: (a) there shall have been (1) no reduction
in the annual rate of dividends paid on the common shares
(except as necessary to reflect any subdivision of the common
shares), except as approved by a majority of the Disinterested
Directors, and (2) an increase in such annual rate of dividends
as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any
similar transaction which has the effect of reducing the number
of outstanding common shares, unless the failure so to increase
such annual rate is approved by a majority of the Disinterested
Directors; and (b) such Interested Shareholder shall have not
become the beneficial owner of any additional common
10
shares except as part of the transaction which results in such
Interested Shareholder becoming an Interested Shareholder.
(iv) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall not
have received the benefit, directly or indirectly (except
proportionately as a shareholder), or any loans, advances,
guarantees, pledges or other financial assistance of any tax
credits or other tax advantages provided by the corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise.
(v) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to public shareholders 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).
(4) Certain Definitions. For the purposes of this Article
XII:
(a) The term "person" shall mean any individual,
firm, corporation or other entity.
(b) The term "Interested Shareholder" shall mean any
person (other than the corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan of the
corporation or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) who or which:
(i) is the beneficial owner, directly or
indirectly, of 10% or more of the outstanding common shares; or
(ii) is an Affiliate of the corporation and
at any time within the two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of 10% or more of the
outstanding common shares; or
(iii) is an assignee of or has otherwise
succeeded to any common shares which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any Interested
Shareholder, if such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(c) A person shall be a "beneficial owner" of common
shares:
(i) which such person or any of its
Affiliates or Associates (as hereinafter defined) beneficially owns, directly or
indirectly; or
(ii) which such person or any of its
Affiliates or Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly
or indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any common shares.
11
(d) For the purposes of determining whether a person
is an Interested Shareholder pursuant to clause (b) of this subparagraph (4),
the number of common shares deemed to be outstanding shall include shares deemed
owned through application of clause (c) of this subparagraph (4) but shall not
include any other common shares which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, exchange
rights, warrants or options, or otherwise.
(e) The terms "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
September 30, 1984.
(f) The term "Subsidiary" shall mean any corporation
of which a majority of any class of equity security is owned, directly or
indirectly, by the corporation; provided, however, that for the purposes of the
definition of Interested Shareholder set forth in clause (b) of this
subparagraph (4), the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly or indirectly, by
the corporation.
(g) The term "Disinterested Director" shall mean any
member of the Board (i) who was a director on September 30, 1984, or (ii) who is
unaffiliated with the Interested Shareholder and who was a member of the Board
prior to the time that the Interested Shareholder became an Interested
Shareholder, or (iii) any successor of a Disinterested Director if such
successor is unaffiliated with the Interested Shareholder and if such successor
was recommended or elected to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board.
(h) The term "Fair Market Value" shall mean: (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
stock is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock during the
30-day period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the fair market value on the date in
question of a share of such stock as determined by the Board in good faith; and
(ii) in the case of property other than cash or stock, the fair market value of
such property on the date in question as determined by the Board in good faith.
(i) In the event of any Business Combination in
which the Corporation survives, the phrase "consideration other than cash to be
received" as used in subclauses (b) (i) and (ii) of subparagraph (3) of this
paragraph B shall include the common shares retained by the holders of such
shares.
(5) Powers of Disinterested Directors. A majority of the
Disinterested Directors of the corporation shall have the power and duty to
determine for the purposes of this Article XII, on the basis of information
known to them after reasonable inquiry, (a) whether a person is an Interested
Shareholder, (b) the number of common shares beneficially owned by any person,
(c) whether a person is an Affiliate or Associate of another and (d) whether the
assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
corporation or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $1,000,000 or more; and the good faith determination of a
majority of the Disinterested Directors on such matters shall be conclusive and
binding for all purposes of this Article XII.
(6) No Effect on Fiduciary Obligations of Interested
Shareholders. Nothing contained in this Article XII shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by law.
12
C. Alteration, Amendment, Repeal, etc. Notwithstanding any
other provisions of this restated certificate of incorporation or the by-laws of
the corporation or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of
common shares required by law or this restated certificate of incorporation, the
affirmative vote of the holders of 75% or more of the outstanding common shares,
shall be required to alter, amend or repeal, or adopt any provisions
inconsistent with, this Article XII of this restated certificate of
incorporation.
XIII. Captions. The captions contained in this restated
certificate are for convenience only and shall not control or affect the meaning
or construction of any of the provisions of this restated certificate of
incorporation.
IN WITNESS WHEREOF, the corporation has executed this document
on the first day of March, 1985.
SL INDUSTRIES, INC.
BY:
-------------------------------------
JOHN C. INSTONE, President