EXHIBIT 3.1
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
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I, EDWARD J. FREEL, SECRETARY OF THE STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
MERGER, WHICH MEANS:
"AMERIN CORPORATION", A DELAWARE CORPORATION,
WITH AND INTO "CMAC INVESTMENT CORPORATION" UNDER THE NAME OF RADIAN GROUP
INC.,", A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF
DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE NINTH DAY OF JUNE, A.D. 1999,
AT 12:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL] /s/ Edward J. Freel
----------------------------------------
Edward J. Freel, Secretary of State
2280968 8100M AUTHENTICATION: 9794180
991231406 DATE: 06-09-99
CERTIFICATE OF MERGER
OF
AMERIN CORPORATION
(a Delaware corporation)
WITH AND INTO
CMAC INVESTMENT CORPORATION
(a Delaware corporation)
----------------------------------------
Pursuant to Sections 103 and 251 of the General
Corporation Law of the State of Delaware
----------------------------------------
CMAC Investment Corporation, a Delaware corporation, which desires
to merge with Amerin Corporation, a Delaware corporation, pursuant to the
provisions of Section 251 of the General Corporation Law of the State of
Delaware (the "MERGER") hereby certifies as follows:
FIRST: The names and states of incorporation of the constituent
corporations in the Merger (the "CONSTITUENT CORPORATIONS") are as follows:
Name State of Incorporation
---- ----------------------
CMAC Investment Corporation Delaware
Amerin Corporation Delaware
SECOND: An Agreement and Plan of Merger, dated as of November
22,1998, amended as of April 5,1999, between the Constituent Corporations (the
"MERGER AGREEMENT") has been approved, adopted, certified, executed and
acknowledged by each of the Constituent Corporations in accordance with the
requirements of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: The surviving corporation shall be CMAC Investment
Corporation (the "SURVIVING CORPORATION"), which shall change its name to
"RADIAN GROUP INC." at the effective time of the Merger.
FOURTH: The Restated Certificate of Incorporation of the Surviving
Corporation shall be the Restated Certificate of Incorporation of CMAC, except
that the Restated Certificate of Incorporation of CMAC shall be restated in its
entirety by reason of the Merger and shall read as set forth
in Exhibit A hereto and said Restated Certificate of Incorporation as so
restated shall be the Certificate of Incorporation of the Surviving Corporation.
FIFTH: The executed Merger Agreement is on file at the principal
place of business of the Surviving Corporation. The address of the principal
place of business of the Surviving Corporation is 1601 Market Sweet,
Philadelphia, PA 19103.
SIXTH: A copy of the executed Merger Agreement will be furnished by
the Surviving Corporation, on request and without cost, to any stockholder of
either of the Constituent Corporations.
SEVENTH: The Merger shall become effective upon filing with the
Secretary of State of Delaware.
IN WITNESS WHEREOF, CMAC Investment Corporation has caused this
Certificate of Merger to be signed by its Senior Vice President, Secretary and
General Counsel as of this 9th day of June, 1999.
CMAC INVESTMENT CORPORATION
a Delaware corporation
By: /s/ Howard S. Yaruss
------------------------------------
Name: Howard S. Yaruss
Title: Senior Vice President,
Secretary and General Counsel
EXHIBIT A
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RADIAN GROUP INC.
FIRST: CORPORATE NAME. The name of the corporation is Radian Group Inc.
(hereinafter refereed to as the "CORPORATION").
SECOND: REGISTERED OFFICE. 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 that address is The Corporation Trust Company.
THIRD: CORPORATE PURPOSE. The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be organized under the
Delaware General Corporation Law.
FOURTH: CAPITAL STOCK. The Corporation shall be authorized to issue one hundred
million (100,000,000) shares of capital stock, of which eighty million
(80,000,000) shares shall be Common Stock, par value $.001 per share, and twenty
million (20,000,000) shares shall be Preferred Stock, par value $.001 per share.
4.1 Authority of Board to Fix Term of Shares. The Preferred Stock
authorized by this Certificate of Incorporation may be issued from time to time
in one or more series. The Board of Directors of the Corporation shall have the
full authority permitted by law to establish one or more series and the number
of shares constituting each such series and to fix by resolution full, limited,
multiple or fractional, or no voting rights, and such designations, preferences,
qualifications, privileges, limitations, restrictions, options, conversion
rights and other special or relative rights of any series of the Preferred Stock
that may be desired. Subject to the limitation on the total number of shares of
Preferred Stock which the Corporation has authority to issue hereunder, the
Board of Directors is also authorized to increase or decrease the number of
shares of any series, subsequent to the issue of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
4.2 $4.125 Preferred Stock. The Corporation is authorized to issue a
series of Preferred Stock, which shall consist of 800,000 shares and is
designated as "$4,125 PREFERRED STOCK" The powers, preferences, rights,
restrictions and other matters relating to the $4.125 Preferred Stock are as
follows:
(a) Designation. The designation of such series of the Preferred
Stock shall be $4.125 Preferred Stock (the "$4.125 Preferred Stock"). The number
of shares of the $4.125 Preferred Stock shall be 800,000. The number of
authorized shares of the $4.125 Preferred Stock may be reduced by the Board of
Directors of the Corporation or a duly authorized committee thereof and by the
filing of a certificate pursuant to the provisions of the General Corporation
Law of the State of Delaware stating that such reduction has been so authorized.
The number of authorized shares of the $4.125 Preferred Stock shall not be
increased.
(b) Certain Definitions. As used in this Section 4.2, the following
terms shall have the following respective meanings:
"AFFILIATE" has the meaning contained in Rule 12b-2 promulgated under the
Exchange Act, or any successor provision thereto.
"BENEFICIAL OWNER" has the meaning contained in Rule 13d-3 promulgated
under the Exchange Act, of any successor provision thereto.
"BUSINESS DAY" means any day except a Saturday, Sunday or any day on which
banking institutions are legally authorized or obligated to close in the
Commonwealth of Pennsylvania or a day on which the New York Stock Exchange is
not open for the regular transaction of business.
"BY-LAWS" means the By-laws of the Corporation, as amended from time to
time.
"CMAC" means Commonwealth Mortgage Assurance Company, a Pennsylvania
corporation, or any successor entity thereto which is the principal subsidiary
of the Corporation engaged in the business of providing private mortgage
insurance.
"COMMON SHARES" means any stock of the Corporation which has no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation and which
is not subject to redemption by the Corporation.
"COMMON STOCK" means the common stock, par value $.001 per share, of the
Corporation as of the original date of issuance of shares of the $4.125
Preferred Stock, or shares of the Corporation of any class or classes resulting
from any reclassification or reclassification thereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FUNDAMENTAL TRANSACTION" means any merger, consolidation, sale of assets
or similar transaction on which the holders of Common Stock are entitled to
vote.
"JUNIOR DIVIDEND SHARE" means shares of any series or class of the
Corporation which are by their terms expressly made junior to shares of the
$4.125 Preferred Stock at the time outstanding as to dividends.
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"JUNIOR LIQUIDATION SHARES" means shares of any series or class of the
Corporation which are by their terms expressly made junior to shares of the
$4.125 Preferred Stock at the time outstanding as to the distribution of assets
on any voluntary or involuntary liquidation of the Corporation.
"PARITY DIVIDEND SHARES" means shares of any series or class of the
Corporation which are by their terms on a parity with shares of the $4.125
Preferred Stock at the time outstanding as to dividends.
"PARITY LIQUIDATION SHARES" means shares of any series or class of the
Corporation which are by their terms on a parity with shares of the $4.125
Preferred Stock at the time outstanding as to as to the distribution on assets
on any voluntary or involuntary liquidation of the Corporation.
"PERSON" means any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, or government or
political subdivision thereof.
"SENIOR DIVIDEND SHARES" means shares of any series or class of the
Corporation which are by their terms expressly made senior to shares of the
$4.125 Preferred Stock at the time outstanding as to dividends.
"SENIOR LIQUIDATION SHARES" means shares of any series or class of the
Corporation which are by their terms expressly made senior to shares of the
$4.125 Preferred Stock at the time outstanding as to the distribution of assets
on any voluntary or involuntary liquidation of the Corporation.
(c) VOTING RIGHTS. Except as otherwise required by law or as
expressly provided in this paragraph (c), holders of shares of the $4.125
Preferred Stock shall have no voting rights:
(1) Dividend Defaults.
(A) If and whenever accrued dividends on shares of the
$4.125 Preferred Stock or any Parity Dividend Shares shall not have been paid in
an aggregate amount equal to or greater than six quarterly dividends (whether
consecutive or not) on shares of the $4.125 Preferred stock or such Parity
Dividend Shares at the time outstanding, the number of directors then
constituting the entire Board of Directors of the Corporation shall be increased
automatically by two directors and the holders of shares of the $4.125 Preferred
Stock and the holders of any Parity Dividend Shares, voting non-cumulatively and
together as a single class, shall be entitled to fill such newly-created
directorships at the next annual meeting of stockholders of the Corporation or
at a special meeting called as hereinafter provided in this subparagraph
(c)(1)(A). Such right to vote as a single class to elect two directors shall,
when vested, continue until all dividends in default on shares of the $4.125
Preferred Stock and any Parity Dividend Shares, as the case may be, shall have
been paid in full and, when so paid, such right to elect two directors
separately as a class shall cease, subject to the same
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provisions for the vesting of such right to elect two directors separately as a
class in the case of future dividend defaults. At any time when such right to
elect two directors separately as a class shall have so vested, the Corporation
may, and, upon the written request of the holders of record of not less than 20%
of the total number of shares of the $4.125 Preferred Stock and any Parity
Dividend Shares then outstanding, shall call a special meeting of the holders of
such shares for the election of directors to fill such newly-created
directorships. In the case of such a written request, such special meeting shall
be held within 90 days after the receipt of such request and, in either case, at
the place and upon the notice provided by law and in the By-laws, except that
the Corporation shall not be required to call such a special meeting if such
request is received less than 120 days before the date fixed for the next
ensuing annual meeting of stockholders of the Corporation, at which meeting such
newly-created directorships shall be filled by the holders of shares of the
$4.125 Preferred Stock and any Parity Dividend Shares.
(B) So long as any shares of the $4.125 Preferred Stock
are outstanding, the By-laws shall contain provisions ensuring that the number
of directors of the Corporation shall at all times be such that the exercise, by
the holders of shares of the $4.125 Preferred Stock and the holders of Parity
Dividend Shares, of the right to elect directors under the circumstances
provided in subparagraph (c)(1)(A) above will not contravene any provisions of
the Corporation's Restated Certificate or By-laws.
(C) Directors elected pursuant to subparagraph (c)(1)(A)
shall not be elected to any particular class of the Board of Directors and shall
serve until the earlier of:
(i) the next annual meeting of the stockholders of the
Corporation and the election (by the holders of shares of the $4.125
Preferred Stock and the holders of Parity Dividend Shares) and
qualification of their respective successors; or
(ii) the date upon which all accumulations of unpaid
dividends on shares of the $4.125 Preferred Stock and such Parity Dividend
Shares shall have been paid in full.
If, prior to the end of the term of any director elected pursuant to
subparagraph (c)(1)(A), a vacancy in the office of such director shall occur
during the continuance of a default in dividends on the shares of the $4.125
Preferred Stock or such Parity Dividend Shares by reason of death, resignation,
disability or otherwise, such vacancy shall be filled for the unexpired term by
the appointment by the remaining director elected pursuant to subparagraph
(c)(1)(A) of a new director for the unexpired term of such former director.
(D) Notwithstanding any provision in this paragraph (c)
to the contrary, so long as Reliance Group Holdings, Inc. or any Affiliate
thereof is the Beneficial Owner of any shares of the $4.125 Preferred Stock,
such corporation or Affiliate shall have no voting rights with respect to such
shares of the $4.125 Preferred Stock in the event of the default on payment of
dividends by the Corporation and any
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shares so beneficially owned shall not be counted as outstanding and entitled to
vote for purposes of any vote or other action by the holders of the shares of
$4.125 Preferred Stock and Parity Dividend Shares pursuant to subparagraph
(c)(1).
(2) Miscellaneous. So long as any shares of the $4.125
Preferred Stock are outstanding, the Corporation shall not, without either the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of the $4.125 Preferred Stock voting at a meeting of such holders, or the
affirmative written consent of holders of at least two-thirds of the outstanding
shares of the $4.125 Preferred Stock:
(A) Authorize or issue any Senior Dividend Shares or
Senior Liquidation Shares.
(B) Consummate any Fundamental Transaction, unless all
outstanding shares of $4.125 Preferred Stock have been called for redemption
pursuant to paragraph (f)(2) below and the rights of the holders of such shares
have ceased in accordance with paragraph (f)(3) below.
(C) Subject to the remaining provisions of this
subparagraph (c)(2)(C), amend the Corporation's Certificate of Incorporation or
any certificate of designations or take other action so as to affect adversely
in any material respect the voting powers or other rights, privileges, powers or
preferences of shares of the $4.125 Preferred Stock. No class vote of the $4.125
Preferred Stock shall be required for any of the amendments to the Corporation's
Certificate of Incorporation or any certificate of designations set forth in
subparagraph (c)(2)(C)(i) below which shall be deemed not to affect adversely in
any material respect the voting powers or other rights and preferences of shares
of the 4.125% Preferred Stock:
(i) the authorization or issuance of any shares of any
series or class of the Corporation which are neither Senior Dividend
Shares nor Senior Liquidation Shares.
(D) Amend that certain Reserve Account Agreement dated
August 14,1992 by and between the Corporation and Commonwealth Mortgage
Assurance Company.
(d) Dividends.
(1) Cash Dividends. The cash dividend rate on shares of the
$4.125 Preferred Stock shall be $4.125 per annum per share. Cash dividends on
shares of the 4.125% Preferred Stock shall be payable quarterly at the rate of
$1.03125 per share, when, as and if declared by the Board of Directors out of
funds legally available for the payment of dividends, on the fifteenth day of
February, May, August and November of each year (each, a "PAYMENT DATE"),
commencing February 15, 1993, except that if any such Payment Date is not a
Business Day then such dividend shall be payable on the first immediately
succeeding Business Day. Any cash dividend payable on February 15, 1993 on
shares of the $4.125 Preferred Stock will be computed on the
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actual number of days from the date of issuance of the $4.125 Preferred Stock to
February 15, 1993. No interest or dividends will be payable in respect of any
accumulations of unpaid dividends on shares of the $4.125 Preferred Stock. The
holders of shares of the $4.125 Preferred Stock shall not be entitled to any
dividends other than the dividends provided in this paragraph (d).
(2) Record Date. Each cash dividend shall be paid to the
holders of record of shares of the $4.125 Preferred Stock as they appear on the
stock register of the Corporation on the fifteenth day of the month next
preceding such Payment Date (each, a "RECORD DATE"). Dividends on account of
accumulations of unpaid dividends may be declared and paid at any time, without
reference to any regular dividend Payment Date, to holders of record on such
date, nor exceeding 60 days preceding the payment date thereof, as may be fixed
by the Board of Directors of the Corporation.
(3) Priority of Dividends. If at any time the Corporation has
failed to pay or declare and set apart for payment accumulations of unpaid
dividends on any Senior Dividend Shares, the Corporation shall not pay any
dividend on the $4.125 Preferred Stock. Holders of shares of the $4.125
Preferred Stock shall be entitled to receive the dividends provided in this
paragraph (d) in preference to and in priority over dividends upon the Common
Shares and all Junior Dividend Shares.
(4) Default; Payment of Pro Rata Dividends. Unless and until
(x) all accumulations of unpaid dividends on shares of the $4.125 Preferred
Stock and any Parity Dividend Shares at the time outstanding have been paid in
full or declared in full and sums set apart for the payment thereof and (y) the
Corporation has fully complied with all scheduled redemption obligations,
sinking fund obligations and all other redemption obligations relating to the
shares of $4.125 Preferred Stock, any Parity Dividend Shares and any Parity
Liquidation Shares at the time outstanding, the payment of dividends on, and
redemptions and purchases of, shares of the Corporation's capital stock shall be
subject to the restrictions contained in paragraph (h) below.
Unless and until all accumulations of unpaid dividends on
shares of the $4.125 Preferred Stock and any Parity Dividend Shares at the time
outstanding have been paid in full or declared in full and sums set apart for
the payment thereof, all dividends declared by the Corporation upon shares of
the $4.125 Preferred Stock and Parity Dividend Shares shall be declared pro rata
with respect to all shares of the $4.125 Preferred Stock and Parity Dividend
Shares then outstanding, so that the amounts of any dividends declared by the
Corporation upon each share of $4.125 Preferred Stock and each Parity Dividend
Share shall in all cases bear to each other the same ratio that, at the time of
such declaration, all accumulations of unpaid dividends on shares of the $4.125
Preferred Stock and on such parity Dividend Shares bear to each other.
(e) Liquidation.
(1) Liquidation Value. The liquidation value of shares of the
$4.125 Preferred Stock, in case of the voluntary or involuntary liquidation,
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dissolution or winding-up of the Corporation, shall be $50.00 per share, plus an
amount equal to accumulations of unpaid dividends thereon to the payment date.
Priority of Liquidation Distributions. In the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, the holders of shares of the $4.125 Preferred Stock shall be
entitled to receive the liquidation value of such shares held by them in
preference to and in priority over any distributions upon the Common Shares and
the Junior Liquidation Shares, but the holders of shares of the $4.125 Preferred
Stock shall not he entitled to receive any distribution in respect of the
liquidation value of such shares until the Corporation has paid in full the
liquidation value to which the holders of all Senior Liquidation Shares are
entitled. Upon payment in full of the liquidation value to which the holders of
shares of the $4.125 Preferred Stock are entitled, the holders of shares of the
$4.125 Preferred Stock will not be entitled to any further participation an any
distribution of assets by the Corporation. If the assets of the Corporation are
nor sufficient to pay in full the liquidation value payable to the holders of
shares of the $4.125 Preferred Stock and the liquidation value payable to the
holders of the Parity Liquidation Shares, the distribution of such assets shall
be made pro rata with respect to all shares of the $4.125 Preferred Stock and
Parity Liquidation Shares then outstanding, so that the amounts of any
distributions paid on each share of $4.125 Preferred Stock and each Parity
Liquidation Share shall in all cases bear to each other the same ratio that, at
the time of such distribution, the liquidation values of the $4.125 Preferred
Stock and the Parity Liquidation Shares bear to each other.
(3) Consolidations Mergers, Etc. Neither a consolidation or
merger of the Corporation with or into any other corporation, nor a merger of
any other corporation with or into the Corporation, nor a reorganization of the
Corporation, nor the purchase or redemption of all or part of the outstanding
shares of any class or classes of the Corporation, nor the sale or transfer of
all or any part of the Corporation's assets for cash or securities or other
property shall be considered a liquidation, dissolution or winding-up of the
Corporation within the meaning of this paragraph (e); provided that, each case,
effective provision is made in the certificate of incorporation of the resulting
or surviving corporation or otherwise for the protection of the rights of the
holders of the $4.125 Preferred Stock.
(f) Redemptions at the Option of the Corporation.
(1) Permitted Redemptions. Subject to paragraph (f)(2) below,
shares of the $4.125 Preferred Stock shall not be redeemable by the Corporation
prior to August 15, 2002. Shares of the $4.125 Preferred Stock may be redeemed
for cash at the option of the Corporation in whole or from time to time in part
on or after August 15, 2002 at the following redemption prices per share if
redeemed during the 12-month period beginning August 15 of the year specified
below:
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12-Month
Period Beginning Price
August Per Share
------ ---------
2002 $54.125
2003 $52.750
2004 $51.375
and if redeemed at any time thereafter as $50.00 per share, plus, in each case,
an amount equal to accumulations of unpaid dividends thereon to the redemption
date.
(2) Redemption in Connection with a Fundamental Transaction.
If any time prior to August 15, 2002 the holders of the outstanding shares of
$4.125 Preferred Stock fail to approve a Fundamental Transaction as required by
paragraph (c)(2)(B) above, such shares may be redeemed in full at the option of
the Corporation for cash at $50.00 per share, plus an amount equal to
accumulations of unpaid dividends thereon to the redemption date. The
Corporation may not exercise the redemption right provided in this paragraph
(f)(2) unless the Corporation proceeds with the Fundamental Transaction which
the holders of $4.125 Preferred Stock failed to approve.
(3) Notice Procedures. Not less than 30 nor more than 60 days
prior to the date fixed for any redemption of shares of the $4.125 Preferred
Stock pursuant to this paragraph (f), a written notice specifying the time and
place of such redemption, the redemption price and the number of shares to be
redeemed shall be given by first class mail, postage prepaid, to the holders of
record of the shares of the $4.125 Preferred Stock to be redeemed at their
respective addresses as the same shall appear on the books of the Corporation,
calling upon each such holder of record to surrender to the Corporation on the
redemption date at the place designated in such notice the holder's certificate
or certificates representing the number of shares specified in such notice of
redemption. Neither a failure to mail such notice, nor any defect therein or in
the mailing thereof, to any particular holder shall affect the sufficiency of
the notice or the validity of the proceedings for redemption with respect to the
other holders. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the holder receives
the notice. On or after the redemption date each holder of shares of the $4.125
Preferred Stock to be redeemed shall present and surrender the certificate or
certificates for such shares to the Corporation at the place designated in such
notice, and thereupon the redemption price of such shares shall be paid to or to
the order of the Person whose name appears on such certificate or certificates
as the owner thereof and each surrendered certificate shall be cancelled. In
case fewer than all the shares represented by any such certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares.
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(4) Cessation of Rights as Stockholder. If a notice of
redemption has been given pursuant to subparagraph (f)(3) above and if, on or
before the date fixed for redemption, the funds necessary for such redemption
shall have been deposited by the Corporation, in trust for the pro rata benefit
of the holders of the shares so called for redemption (so as to be and continue
to be available therefor) with a bank or trust company doing business in
Philadelphia, Pennsylvania and having capital, surplus and undivided profits
aggregating at least $100,000,000, then, notwithstanding that any certificates
for such shares have not been surrendered for cancellation, on the redemption
date dividends shall cease to accrue on the shares of the $4.125 Preferred Stock
to be redeemed, and at the close of business on the redemption date the holders
of such shares shall cease to be stockholders with respect to such shares and
shall have no interest in or claims against the Corporation by virtue thereof
and shall have no voting or other rights with respect to such shares (except the
right to receive the moneys payable upon such redemption, without interest
thereon, upon surrender, and endorsement if required by the Corporation, of
their certificates), and the shares evidenced thereby shall not be deemed to be
outstanding shares for the purpose of voting or determining the total number of
shares entitled to vote on any matter. Any moneys so deposited by the
Corporation and unclaimed at the end of two years from the redemption date may
revert to the general funds of the Corporation, and any funds held by any paying
agent may be paid to the Corporation upon request of the Corporation, after
which reversion or payment the holders of such shares so called for redemption
shall look only to the general funds of the Corporation for the payment of the
redemption price. Any interest accrued on funds so deposited shall be paid to
the Corporation from time to time.
(5) Partial Redemption Procedures. If fewer than all of the
outstanding shares of the $4.125 Preferred Stock shall be called for redemption
pursuant to this prargraph (f)(1) above, the shares to be redeemed shall be
selected pro rata, as nearly as practicable, or by lot or by such other manner
as may be prescribed by resolution of the Board of Directors of the Corporation
and shall be consistent with the applicable rules of the National Association of
Securities Dealers.
(g) Sinking Fund. Except as otherwise provided in this paragraph
(g), the shares of the $4.125 Preferred Stock are not subject to mandatory
redemption requirements.
(1) Mandatory Redemption. So long as any share of $4.125
Preferred Stock remains outstanding, on August 15 of each year from 2002 to
2011, inclusive, the Corporation shall redeem 72,000 shares, and on August 15,
2012 shall redeem all shares then outstanding, at a price of $50.00 per share
plus accrued and unpaid cumulative dividends to date of redemption.
On or before each such August 15, the Corporation shall,
deposit all finds necessary for the redemption of shares of $4.125 Preferred
Stocks above provided, in trust for the account of the holders of the shares to
be redeemed, so as to be and continue to be available therefor, with a bank or
trust company doing business in Philadelphia, Pennsylvania, and having capital,
surplus and undivided profits aggregating at least $10,000,000. The particular
shares of $4.125 Preferred Stock so to be redeemed
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shall be determined, notice of such redemption shall be given and the deposit of
funds shall be made by the Corporation in the manner and with the effect
provided in paragraph (g) hereof.
If the Corporation fails to comply with its sinking fund
obligation as heretofore provided, it shall make good any such deficiency at the
earliest possible time thereafter. The obligation to redeem shares of $4.125
Preferred Stock for the sinking fund as aforesaid shall be cumulative if and to
the extent not satisfied in any year, whether or not there shall be funds
legally available therefor, but without interest on the amount of any
deficiencies.
Against the number of shares required to be redeemed in any
year by the provisions of this paragraph (g), the Corporation may credit shares
of $4.125 Preferred Stock which it has purchased or redeemed at any time during
or prior to such year otherwise than through the operation of the sinking fund
provided that any shares so credited shall not theretofore have been used for
the purpose of such credit.
(2) Notice Procedures. Not less than 30 nor more than 60 days
prior to any redemption date, a written notice specifying the sinking fund
deposit made or to be made, the redemption date, the time and place of such
redemption, the redemption price and the number of shares to be redeemed shall
be given by first class mail, postage prepaid, to the holders of record of
shares of the $4.125 Preferred Stock at their respective addresses as the same
shall appear on the books of the Corporation, calling upon each such holder of
record to surrender to the Corporation on the redemption date at the place
designated in such notice the holder's certificate or certificates representing
the number of shares specified in such notice of redemption. Neither a failure
to mail such notice, nor any defect therein or in the mailing thereof to any
particular holder shall affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other holders. Any notice
that is mailed in the manner herein provided shall be conclusively presumed to
have been duly given whether or not the holder receives the notice. On or after
the redemption date each holder of shares of the $4.125 Preferred Stock to be
redeemed shall present and surrender the certificate or certificates for such
shares to the Corporation at the place designated in such notice, and thereupon
the redemption price of such shares shall be paid to or to the order of the
Person whose name appears on such certificate or certificates as the owner
thereof and each surrendered certificate shall be cancelled. In case fewer than
all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(3) Cessation of Rights as Stockholder. If a notice of
redemption has been given pursuant to subparagraph (g)(2) above and if, on or
before the date fixed for redemption, the funds necessary for such redemption
shall have been deposited pursuant to subparagraph (g)(1) above, then
notwithstanding that any certificates for such shares have not been surrendered
for cancellation, on the redemption date dividends shall cease to accrue on the
shares of the $4.125 Preferred Stock to be redeemed, and at the close of
business on the redemption date the holders of such shares shall cease to be
stockholders with respect to such shares and shall have no interest in or
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claims against the Corporation by virtue thereof and shall have no voting or
other rights with respect to such shares (except the right to receive the moneys
payable upon such redemption, without interest thereon, upon surrender, and
endorsement if required by the Corporation, of their certificates), and the
shares evidenced thereby shall not be deemed to be outstanding shares for the
purpose of voting or determining the total number of shares entitled to vote on
any matter. Any moneys so deposited by the Corporation and unclaimed at the end
of two years from the redemption date may revert to the general funds of the
Corporation, and any funds held by any paying agent may be paid to the
Corporation upon request of the Corporation, after which reversion or payment
the holders of such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the redemption price. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
(4) Partial Redemption Procedures. Any shares to be redeemed
pursuant to this paragraph (g) shall be selected pro rata, as nearly as
practicable, or by lot as may be prescribed by resolution of the Board of
Directors of the Corporation and shall be consistent with the applicable rules
of the National Association of Securities Dealers.
(5) Default. Unless and until (x) all accumulations of unpaid
dividends on shares of the $4.125 Preferred Stock and any Parity Dividend Shares
at the time outstanding have been paid in full or declared in full and sums set
apart for the payment thereof and (y) the Corporation has fully complied with
all scheduled redemption obligations, sinking fund obligations and all other
redemption obligations relating to the shares of $4.125 Preferred Stock, any
Parity Dividend Shares and any Parity Liquidation Shares at the time
outstanding, the payment of dividends on, and redemptions and purchases of,
shares of the Corporation's capital stock shall be subject to the restrictions
contained in paragraph (h) below.
(h) Dividend and Redemption Default Provisions. Unless and until (x)
all accumulations of unpaid dividends on shares of the $4.125 Preferred Stock
and any Parity Dividend Shares at the time outstanding have been paid in full or
declared in full and sums set apart for the payment thereof and (y) the
Corporation has fully complied with all scheduled redemption obligations,
sinking fund obligations and all other redemption obligations relating to the
shares of $4.125 Preferred Stock, any Parity Dividend Shares and any Parity
Liquidation Shares at the time outstanding:
(1) No dividends may be declared or paid or set aside for
payment and no other distribution may be made in respect of any Common Shares,
Junior Dividend Shares or (except as provided above in subparagraph (d) (4))
Parity Dividend Shares, except dividends or other distributions in Common Shares
or Junior Dividend Shares.
(2) No Common Shares, Junior Dividend Shares or Junior
Liquidation Shares may be redeemed, purchased or otherwise acquired for any
Consideration (or any payment made to or available for a sinking fund for the
redemption of any such shares) by the Corporation or any entity controlled by
the Corporation
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(except (i) by conversion into or exchange for stock of the Corporation ranking
junior to shares of the $4.125 Preferred Stock as to dividend and liquidation
rights, (ii) in repurchases of Common Shares, Junior Dividend Shares or Junior
Liquidation Shares from employees or directors of or consultants to the
Corporation pursuant to contractual arrangements entered into at the time such
shares were issued giving the Corporation the right to repurchase such shares
upon the occurrence of certain contingencies and (iii) by acquisition of Common
Shares, Junior Dividend Shares or Junior Liquidation Shares issued in connection
with an acquisition pursuant to an escrow, pledge or similar arrangement under
which the Corporation becomes entitled to receive such shares).
(3) No shares of the $4.125 Preferred Stock or any Parity
Dividend Shares or Parity Liquidation Shares may be redeemed unless all
outstanding shares of the $4.125 Preferred Stock are redeemed.
(4) No shares of the $4.125 Preferred Stock or any Parity
Dividend Shares or Parity Liquidation Shares may be purchased or otherwise
acquired by the Corporation for value except in accordance with a purchase or
exchange offer made simultaneously by the Corporation to all holders of record
of shares of the $4.125 Preferred Stock, Parity Dividend Shares and Parity
Liquidation Shares which, considering the annual dividend rates and the other
relative rights and preferences of such shares, in the opinion of the Board of
Directors (whose determination shall be conclusive), will result in fair and
equitable treatment among all such shares.
(i) Status of Redeemed Shares. All shares of the $4.125 Preferred
Stock which are at any time redeemed pursuant to paragraph (f) or (g) above and
all shares of the $4.125 Preferred Stock which are otherwise reacquired by the
Corporation and subsequently cancelled by the Board of Directors shall have the
status of authorized but unissued shares of Preferred Stock, without designation
as to series, subject to reissuance by the Board of Directors as shares of any
one or more other series.
4.3 Series A Preferred Stock. The Corporation is authorized to issue a
series of Preferred Stock, which shall consist of 100,000 shares and is
designated as "Series A Junior Participating Preferred Shares" (the "SERIES A
PREFERRED SHARE"). The powers, preferences, rights, restrictions and other
matters relating to the Series A Preferred Shares are as follows:
(a) Dividends and Distributions.
(1) The rate of dividends payable per share of Series A
Preferred Shares on the first day of January, April, July and October in each
year or such other quarterly payment date as shall be specified by the Board of
Directors (each such data being referred to herein as a "QUARTERLY DIVIDEND
PAYMENT DATE"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of the Series A Preferred
Shares, shall be (rounded to the nearest cent) equal to the greater of (A)
$10.00 or (B) subject to the provision 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
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market value at the time the non-cash dividend or other distribution is declared
or paid 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 on the Common Stock, $.001 per value
per share, of the Corporation since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of the Series A
Preferred Shares. Dividends on the Series A Preferred Shares shall be paid out
of funds legally available for such purpose. In the event the Corporation shall
at any time after April 14,1995 (the "RIGHTS DECLARATION DATE") (A) declare any
dividend on Common Stock payable in shares of Common Stock, (B) subdivide the
outstanding shares of Common Stock, or (C) combine the outstanding shares of
Common Stock into a smaller number of shares, then in each such case the amounts
to which holders of Series A Preferred Shares were entitled immediately prior to
such event under clause (D) of the preceding sentence shall be adjusted by
multiplying each 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.
(2) Dividends shall begin to accrue and be cumulative on
outstanding Series A Preferred Shares from the Quarterly Dividend Payment Date
next preceding the date of issue of such Series A Preferred Shares, 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 Series A Preferred Shares 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 nor bear
interest. Dividends paid on the Series A Preferred Shares 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.
(b) Voting Rights. In addition to any other voting rights required
by law, the holders of Series A Preferred Shares shall have the following voting
rights:
(1) Subject to the provision for adjustment hereinafter set
forth, each Series A Preferred Share 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
(A) declare any dividend on Common Stock payable in shares of Common Stock, (B)
subdivide the outstanding shares of Common Stock, or (C) combine the outstanding
shares of Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of Series A Preferred Shares 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
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denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(2) In the event that dividends upon the Series A Preferred
Shares shall be in arrears to an amount equal to six full quarterly dividends
thereon, the holders of such Series A Preferred Shares shall become entitled to
the extent hereinafter provided to vote noncumulatively at all elections of
directors of the Corporation, and to receive notice of all stockholders'
meetings to be held for such purpose. At such meetings, to the extent that
directors are being elected, the holders of such Series A Preferred Shares
voting as a class shall be entitled solely to elect two members of the Board of
Directors of the Corporation; and all other directors of the Corporation shall
be elected by the other stockholders of the Corporation entitled to vote in the
election of directors. Such voting rights of the holders of such Series A
Preferred Shares shall continue until all accumulated and unpaid dividends
thereon shall have been paid or funds sufficient therefor set side, whereupon
all such voting rights of the holders of shares of such series shall cease,
subject to being again revived from time to time upon the reoccurrence of the
conditions above described as giving rise thereto.
At any time when such right to elect directors separately as a
class shall have so vested, the Corporation may, and upon the written request of
the holders of record of not less than 15% of the then outstanding total number
of shares of all the Series A Preferred Shares having the right to elect
directors in such circumstances shall, call a special meeting of holders of such
Series A Preferred Shares for the election of directors. In the case of such a
written request, such special meeting shall be held within ninety (90) days
after the delivery of such request, and, in either case, at the place and upon
the notice provided by law and in the By-laws of the Corporation; provided, that
the Corporation shall not be required to call such a special meeting if such
request is received less than one hundred twenty (120) days before the date
fixed for the next ensuing annual or special meeting of stockholders of the
Corporation. Upon the mailing of the notice of such special meeting to the
holders of such Series A Preferred Shares, or, if no such meeting be held, then
upon the mailing of the notice of the next annual or special meeting of
stockholders for the election of directors, the number of directors of the
Corporation shall, ipso facto, be increased to the extent, but only to the
extent, necessary to provide sufficient vacancies to enable the holders of such
Series A Preferred Shares to elect the two directors hereinabove provided for,
and all such vacancies shall be filled only by vote of the holders of such
Series A Preferred Shares as hereinabove provided. Whenever the number of
directors of the Corporation shall have been increased, the number as so
increased may thereafter be further increased or decreased in such manner as may
be permitted by the By-laws and without the vote of the holders of Series A
Preferred Shares, provided that no such action shall impair the right of the
holders of Series A Preferred Shares to elect and to be represented by two
directors as herein provided.
So long as the holders of Series A Preferred Shares are
entitled hereunder to voting rights, any vacancy in the Board of Directors
caused by the death or resignation of any director elected by the holders of
Series A Preferred Shares, shall, until the next meeting of stockholders for the
election of directors, in each case be filled
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by the remaining director elected by the holders of Series A Preferred Shares
having the right to elect directors in such circumstances.
Upon termination of the voting rights of the holders of any
series of Series A Preferred Shares the terms of office of all persons who shall
have been elected directors of the Corporation by vote of the holders of Series
A Preferred Shares or by a director elected by such holders shall forthwith
terminate.
(3) Except as otherwise provided herein, in the Certificate of
Incorporation of the Corporation or by law, the holders of Series A Preferred
Shares and the holders of Common Stock (and the holders of shares of any other
series or class entitled to vote thereon) shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.
(c) Reacquired Shares. Any Series A Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued Series Preferred Stock and may
be reissued as part of a new series of Series Preferred Stock to be created by
resolution or resolutions of the Board of Directors.
(d) Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of Series A Preferred Shares shall be entitled to
receive the greater of (1) $100.00 per share, plus accrued dividends to the date
of distribution, whether or not earned or declared, or (2) 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 (A) declare any dividend on Common Stock payable in shares of
Common Stock, (B) subdivide the outstanding shares of Common Stock, or (C)
combine the outstanding shares of Common Stock into a smaller number of shares,
then in each such case the amount to which holders of Series A Preferred Shares
were entitled immediately prior to such event pursuant to clause (2) 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 alter such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(e) 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 Series A
Preferred Shares 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 (1) declare any dividend on
Common Stock payable in shares of Common Stock, (2) subdivide the
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outstanding shares of Common Stock, or (3) combine the outstanding shares of
Common Stock into a smaller number of shares, then in each such case the amount
set forth in the Preferred Shares 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.
(f) No Redemption. The Series A Preferred Shares shall not be
redeemable.
(g) Ranking. The Series A Preferred Shares shall rank junior to all
other series of the Corporation's Series Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
(h) Fractional Shares. Series A Preferred Shares 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 so have the benefit of all other rights of
holders of Series A Preferred Shares.
FIFTH: Board of Directors.
5.1 Number; Classification. The Board of Directors of the Corporation
shall consist of such number of directors, which number shall not be less than 9
or more than 14, as shall be fixed from time so time by resolution of the Board.
The Board of Directors shall be divided into three classes, which shall be as
nearly equal in number as possible. Directors of each class shall serve for a
term of three years and until their successors shall have been elected and
qualified. The three initial classes of directors shall be comprised as follows:
(a) Class I shall be comprised of directors who shall serve until
the annual meeting of stockholders in 1993 and until their successors shall have
been elected and qualified.
(b) Class II shall be comprised of directors who shall serve until
the annual meeting of stockholders in 1994 and until their successors shall have
been elected and qualified.
(c) Class III shall be comprised of directors who shall serve until
the annual meeting of stockholders in 1995 and until their successors shall have
been elected and qualified.
5.2 Qualifications. No person shall be appointed or elected a director of
the Corporation unless;
(a) such person is elected to fill a vacancy in the Board of
Directors (including any vacancy resulting from any increase in the authorized
number of directors) by a vote of the majority of the Board of Directors then in
office, and any
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director so elected shall hold office until the next election of the class for
which such director shall have been elected and until a successor shall have
been elected and qualified; or
(b) the name of such person, together with such consents and
information concerning present and prior occupations, transactions with the
Corporation or its subsidiaries and other matters as may at the time be required
by or pursuant to the By-laws, shall have been filed with the Secretary of the
Corporation no later than a time faced by or pursuant to the By-laws immediately
preceding the annual or special meeting at which such person intends to be a
candidate for director.
5.3 Removal of Directors. Directors of the Corporation may only be removed
for cause by a vote of the holders of shares entitled to cast a majority of the
votes which all stockholders are entitled to cast at an election of directors.
No decrease or increase in the size of the Board of Directors shall shorten or
otherwise affect the term of any incumbent director.
5.4 Elections of Directors. Elections of directors need not be by written
ballot unless the By-laws of the Corporation shall so provide.
SIXTH: Unanimous Consent of Stockholders in Lieu of Meeting. Any action required
to be taken at any annual or special meeting of stockholders of the Corporation,
or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of all of the outstanding stock entitled to vote
to take such action at any annual or special meeting of stockholders of the
Corporation and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the books in which proceedings of
meetings of stockholders are recorded. Every written consent shall bear the date
of signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless,
within 60 days of the earliest dated consent delivered in the manner required in
this section to the Corporation, written consents signed by the holders of all
of the outstanding stock entitled to vote to take such action are delivered to
the Corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
SEVENTH: By-laws. The Board of Directors shall have the power, in addition to
the stockholders, to make, alter, or repeal the By-laws of the Corporation.
EIGHTH: Liability of Directors. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which
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involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, as the same exists or
hereafter may be amended, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General Corporation Law is
hereafter amended to authorize corporate action further limiting or eliminating
the personal liability of directors, then the liability of a director to the
corporation shall be limited or eliminated to the fullest extent permitted by
the Delaware General Corporation Law, as so amended from time to time. Any
repeal or modification of this Article EIGHTH shall be by prospective only, and
shall not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
NINTH: Indemnification. The Corporation shall, to the fullest extent permitted
by the Delaware General Corporation Law, as the same may be amended and
supplemented, indemnify any and all past, present and future directors and
officers of the Corporation from and against any and all costs, expenses
(including attorneys' fees), damages, judgments, penalties, fines, punitive
damages, excise taxes assessed with respect to an employee benefit plan and
amounts paid in settlement in connection with any action, suit or proceeding,
whether by or in the right of the Corporation, a class of its security holders
or otherwise, in which the director or officer may be involved as a party of
otherwise, by reason of the fact that such person was serving as a director,
officer, employee or agent of the Corporation.
TENTH. Fundamental Transactions.
10.1 Stockholder Authorization of Fundamental Transactions Recommended by
Management. Whenever any corporate action which constitutes a Fundamental
Transaction is to be taken by vote of the stockholders and such Fundamental
Transaction has been approved by at least two-thirds of the entire Board of
Directors, the proposed Fundamental Transaction shall be authorized upon
receiving the minimum vote required for the authorization of such action by
statute, after taking into account the express terms of any class or any series
of any class of shares of the Corporation with respect to such vote.
10.2 Stockholder Authorization of Fundamental Transactions Not Recommended
by Management. Except as provided in Section (1) of this Article TENTH, whenever
any corporate action than constitutes a Fundamental Transaction is to be taken
by vote of the stockholders, the proposed Fundamental Transaction shall be
authorized only upon receiving at least two-thirds of the vote which all voting
stockholders, voting as a single class, are entitled to cast thereon and, in
addition, the affirmative vote of the number or proportion of shares of any
class or any series of any class of shares of the Corporation, if any, as shall
at the time be required by statute or the express terms of any such class or
series of any class of shares of the Corporation.
10.3 Fundamental Transaction Defined. For the purposes of this Article
TENTH, the term "Fundamental Transaction" shall mean:
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(a) any of the following, if such action is effected by vote of the
stockholders: amendment of this Certificate of Incorporation; adoption,
amendment or repeal of the By-laws; a change in the number of directors
constituting the entire Board of Directors; or removal of one or more directors;
or
(b) any of the following, if any such transaction requires the
approval of the Stockholders under this Certificate of Incorporation of the
Corporation as then in effect or the Delaware General Corporation Law as then in
effect with respect to the Corporation: the sale, lease, exchange or other
disposition of all or substantially all of the assets of the Corporation; or the
merger, consolidation, division, reorganization, recapitalization, dissolution,
liquidation, or winding up of the Corporation.
ELEVENTH: Amendments. The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders are granted subject to this reservation.
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