M A R T I N M A R I E T T A C O R P O R A T I O N
A R T I C L E S
O F
R E S T A T E M E N T
June 30, 1993
(Martin Marietta Logo)
MARTIN MARIETTA CORPORATION
ARTICLES OF RESTATEMENT
THIS IS TO CERTIFY THAT:
FIRST: Martin Marietta Corporation, a Maryland corporation (the
"Corporation"), desires to restate its charter as currently in effect.
SECOND: The provisions attached hereto are all of the provisions of the
charter currently in effect.
THIRD: The restatement of the charter of the Corporation as attached
hereto has been approved by a majority of the entire Board of Directors of the
Corporation as required by law.
FOURTH: The charter of the Corporation is not amended by these Articles
of Restatement.
FIFTH: The current address of the principal office of the Corporation
is as set forth in Article IV of the attached restatement of the charter.
SIXTH: The name and address of the Corporation's current resident agent
is as set forth in Article IV of the attached restatement of the charter.
SEVENTH: The number of directors of the Corporation is seventeen (17),
which number may be increased or decreased from time to time pursuant to the
By-Laws of the Corporation. The names of those directors currently in office
are as follows:
Lamar Alexander James L. Everett, III Gordon S. Macklin
Norman R. Augustine Edward L. Hennessy, Jr. Eugene F. Murphy
Marcus C. Bennett Edward E. Hood, Jr. Allen E. Murray
John J. Byrne Caleb B. Hurtt John W. Vessey, Jr.
A. James Clark Gwendolyn S. King A. Thomas Young
Edwin I. Colodny Melvin R. Laird
EIGHTH: The undersigned President acknowledges these Articles of
Restatement to be the corporate act of the Corporation and, as to all matters
or facts required to be verified under oath, the undersigned President
acknowledges that, to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalities for perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles to be
signed in its name and on its behalf by its President and attested to by its
Secretary on this 29th day of June, 1993.
ATTEST: MARTIN MARIETTA CORPORATION
Lillian M. Trippett By: A. Thomas Young
Lillian M. Trippett, A. Thomas Young, President and
Secretary Chief Operating Officer
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ARTICLE I
NAME
The name of the Corporation is Martin Marietta Corporation.
ARTICLE II
PERIOD OF DURATION
The period of duration of the Corporation is perpetual.
ARTICLE III
PURPOSE AND POWERS
The purpose for which the Corporation is formed is to engage in any
lawful business for which corporations may be organized under the Maryland
General Corporation Law. The Corporation shall have all the general powers
granted by law to Maryland corporations and all other powers not inconsistent
with law which are appropriate to promote and attain its purpose.
ARTICLE IV
PRINCIPAL OFFICE AND RESIDENT AGENT
The address of the principal office of the Corporation in the State of
Maryland is 6801 Rockledge Drive, Bethesda, Maryland 20817. The Resident
Agent of the Corporation is Jennifer E. Bashaw, whose address is c/o Martin
Marietta Corporation, 6801 Rockledge Drive, Bethesda, Maryland 20817. The
Resident Agent is a citizen of the State of Maryland and actually resides
therein.
ARTICLE V
DIRECTORS
SECTION 1. The number of Directors of the Corporation shall be fifteen
(15), which number may be increased or decreased from time to time pursuant to
the By-Laws of the Corporation, but which never shall be less than five (5).
The names of the current directors who shall act until their successors are
duly chosen and qualified, and the years in which their respective terms
expire, are:
Term Expires 1993 Term Expires 1994 Term Expires 1995
Lamar Alexander A. James Clark Caleb B. Hurtt
Norman R. Augustine Edwin I. Colodny Melvin R. Laird
Marcus C. Bennett James L. Everett, III Gordon S. Macklin
John J. Byrne Allen E. Murray John W. Vessey, Jr.
Edward L. Hennessy, Jr. A. Thomas Young
Gwendolyn S. King
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SECTION 2. Beginning with the Board of Directors elected in January
1993, directors were classified with respect to the time for which they were
severally elected to hold office by dividing them into three classes, as
nearly equal in number as possible. At each succeeding Annual Meeting of
Stockholders, beginning in 1993, the class of directors then being elected
will be elected to hold office for a term of office to expire at the third
succeeding Annual Meeting of Stockholders after their election. Each director
will hold office for the term for which elected and until his or her successor
will have been elected and qualified.
SECTION 3. Any director, any class of directors, or the entire Board of
Directors may be removed from office as a director at any time, but only for
cause, by the affirmative vote at a duly called meeting of stockholders of at
least 80% of the votes which all holders of the then outstanding shares of
capital stock of the Corporation would be entitled to cast at an annual
election of directors, voting together as a single class.
SECTION 4. Vacancies in the Board of Directors, including vacancies
resulting from an increase in the number of directors, shall be filled only by
a majority vote of the remaining directors then in office, even if less than a
quorum, except that vacancies resulting from removal from office by a vote of
the stockholders may be filled by the stockholders at the same meeting at
which such removal occurs. All directors elected to fill vacancies shall hold
office for a term expiring at the Annual Meeting of Stockholders at which the
term of the class to which they have been elected expires. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
SECTION 5. Except to the extent prohibited by law or limited by the
Charter, the Board of Directors shall have the power (which, to the extent
exercised, shall be exclusive) to fix the number of directors and to establish
the rules and procedures that govern the internal affairs of the Board of
Directors and nominations for director, including, without limitation, the
vote required for any action by the Board of Directors, and that from time to
time shall affect the directors' power to manage the business and affairs of
the Corporation, and no By-Law shall be adopted by stockholders which shall
modify the foregoing.
SECTION 6. Notwithstanding any other provisions of law or the Charter
or By-Laws of the Corporation, the affirmative vote of at least 80% of the
votes which all holders of the then outstanding shares of capital stock of the
Corporation would be entitled to cast an annual election of directors, voting
together as a single class, shall be required to amend, or repeal, or to adopt
any provision inconsistent with this Article V.
ARTICLE VI
AUTHORIZED SHARES OF STOCK
The total number of shares of stock of all classes which the Corporation
has authority to issue is 550,000,000 shares, divided into 20,000,000 shares
of Series A Preferred Stock, $1.00 par value per share, 30,000,000 shares of
Series Preferred Stock, $1.00 par value per share, and 500,000,000 shares of
Common Stock, $1.00 par value per share. The aggregate par value of all
shares of all classes is $550,000,000.
A description of each class with the preference, conversion and other
rights, voting powers, restrictions, limitations as to dividends and
qualifications of each class is as follows:
A. Series A Preferred Stock
SECTION 1. Designation, Amount and Rank. The class of Preferred Stock
shall be designated "Series A Preferred Stock" and the authorized number of
shares constituting such class shall be 20,000,000. The Series A Preferred
Stock shall rank on a parity as to dividends and as to distribution of assets
upon liquidation, dissolution or winding up with any other class of Preferred
Stock which the Corporation may in the future issue and which by its terms is
not stated to rank junior to the Series A Preferred Stock and the Series A
Preferred Stock shall rank senior, as to dividends and to distribution of
assets upon liquidation, dissolution or winding up to all other classes
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or series of stock of the Corporation which are currently outstanding or which
the Corporation may in the future issue.
SECTION 2. Dividends. (a) The holders of outstanding shares of Series
A Preferred Stock will be entitled to receive, subject to the rights of
holders of any class of Preferred Stock which the Corporation may in the
future issue which ranks on a parity with the Series A Preferred Stock in
respect of dividends, and when, as and if declared by the Board of Directors
out of funds legally available therefor, cumulative preferential cash
dividends at the per share rate of $.75 for each of the quarters ending on the
last day of March, June, September and December of each year and no more,
payable in arrears on each succeeding April 1, July 1, October 1 and January
1, respectively (each such date being hereinafter referred to as a "Preferred
Dividend Payment Date") commencing on that Preferred Dividend Payment Date
which next follows the issuance of such shares. Dividends shall (i) commence
to accrue (whether or not declared and whether or not funds are legally
available for payment) and shall be cumulative on the Series A Preferred Stock
from and after March 29, 1993, and (ii) shall compound quarterly, to the
extent they are unpaid, at the rate of 6% per annum computed on the basis of a
360-day year of twelve 30-day months. If any Preferred Dividend Payment Date
shall not be a Business Day, then the Preferred Dividend Payment Date shall be
on the next succeeding Business Day. Each such dividend will be payable to
holders of record as they appear on the stock books of the Corporation on such
record dates, not less than 10 nor more than 50 days preceding the payment
dates thereof, as shall be fixed by the Board of Directors. As used herein,
the term "Business Day" shall mean any day other than a Saturday, Sunday, or a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close or a day which is or is declared
a national or New York State holiday.
(b) Holders of the shares of Series A Preferred Stock shall not be
entitled to any dividends on such shares, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided.
(c) (i) So long as any share of Series A Preferred Stock shall remain
outstanding, no dividend or distribution whatsoever shall be declared or paid
upon or set apart for any class of stock or series thereof ranking junior to
the Series A Preferred Stock in payment of dividends nor shall any shares of
any class of stock or series thereof ranking junior to or on a parity with the
Series A Preferred Stock in payment of dividends be redeemed or purchased by
the Corporation or any subsidiary thereof nor shall any moneys be paid to or
made available for a sinking fund for redemption or purchase of any shares of
any class of stock or series thereof ranking junior to or on a parity with the
Series A Preferred Stock in payment of dividends, unless, in each such
instance, full dividends on all outstanding shares of Series A Preferred Stock
for all past dividend periods shall have been paid at the rate fixed therefor,
the dividends on all outstanding shares of Series A Preferred Stock for the
then current quarterly dividend period shall have been paid or declared and
sufficient funds set aside for payment thereof and all redemption payments
with respect to the Series A Preferred Stock which the Corporation shall have
become obligated to make shall have been made. Notwithstanding the
immediately preceding sentence, the Corporation shall be permitted to purchase
or acquire any preferred or common stock purchase rights of the Corporation
("Rights") distributed pursuant to any rights agreement to which it may be a
party (the "Rights Agreement").
(ii) No dividend shall be paid upon or declared or set apart for any
share of Series A Preferred Stock for any dividend period unless at the same
time (a) a like proportionate dividend for the same dividend period shall be
paid upon or declared or set apart for all shares of Series A Preferred Stock
then outstanding and entitled to receive such dividend and (b) there shall
have been paid upon or declared or set aside for all shares of any other class
of stock or series thereof, if any, then outstanding and ranking on a parity
with the Series A Preferred Stock in payment of dividends, for the same
dividend period of the Series A Preferred Stock, dividends ratably in
proportion to the respective dividend rates fixed for the Series A Preferred
Stock and said parity stock.
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No dividend shall be paid upon or declared or set apart for any shares of any
other class of stock or series thereof, if any, then outstanding and ranking
on a parity with Series A Preferred Stock in payment of dividends for any
dividend period, unless there shall have been paid upon or declared or set
apart for all shares then outstanding of Series A Preferred Stock, for the
same dividend period, dividends ratably in proportion to the respective
dividend rates fixed for the Series A Preferred Stock and said parity stock.
SECTION 3. Redemption. (a) On or after the fifth anniversary of the
date of initial issuance of the Series A Preferred Stock (the "Initial
Issuance Date"), the Corporation, at its option, may redeem any or all shares
of Series A Preferred Stock, at a redemption price of $50 per share, plus an
amount equal to accrued and unpaid dividends thereon (whether or not declared
and whether or not funds are legally available for payment) to and including
the date of redemption (the "Redemption Price"), but only if the Average
Closing Price (as defined in Section 4(e)(vii) below) of the Common Stock
(calculated as of the record date fixed in accordance with Section 3(c) for
notifying holders of such redemption) equals or exceeds the applicable
percentage of the Conversion Price (as defined in Section 4(a)) set forth
below opposite the anniversary of the Initial Issuance Date that occurs on or
that immediately preceded such record date:
Anniversary of Initial Percentage of
Issuance Date Conversion Price
5 . . . . . . . . . . . . . . . . . 130%
6 . . . . . . . . . . . . . . . . . 122.5%
7 . . . . . . . . . . . . . . . . . 115.0%
8 . . . . . . . . . . . . . . . . . 107.5%
9 and thereafter. . . . . . . . . . 100%
Immediately prior to authorizing or making any such redemption with
respect to the Series A Preferred Stock, the Corporation, by resolution of its
Board of Directors, shall, to the extent of any funds legally available
therefore, declare a dividend on the Series A Preferred Stock payable on the
recemption date in an amount equal to any accrued and unpaid dividends on the
Series A Preferred Stock as of such date and, if the Corporation does not have
sufficient funds legally available therefor to declare and pay all dividends
accrued at the time of such redemption, then (i) the dividend shall be paid
pro rata as among the Series A Preferred Stock and any other Preferred Stock
ranking on a parity as to dividends with the Series A Preferred Stock in
accordance with Section 2(c)(ii), and (ii) an amount equal to any remaining
accrued and unpaid dividends shall be added to the redemption price of the
Series A Preferred Stock.
(b) If less than all the outstanding shares of Series A Preferred Stock
are to be redeemed, the shares to be redeemed shall be selected pro rata
(subject to rounding to avoid fractional shares) as nearly as practicable or
by lot, or by such other method as the Board of Directors may determine to be
equitable.
(c) Notice of any redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the date fixed
for redemption to the holders of record of the shares of Series A Preferred
Stock to be redeemed at their respective addresses appearing on the stock
books of the Corporation. The Board of Directors of the Corporation shall fix
a record date for determining holders of record who are entitled to receive
notice of any redemption, not more than 10 days prior to the mailing of such
notice. Notice so mailed shall be conclusively presumed to have been duly
given whether or not actually received. Such notice shall state: (i) the date
fixed for redemption; (ii) the Redemption Price; (iii) whether the Redemption
Price will be paid in cash or, pursuant to Section 3(d) below, in Common
Stock, (iv) that the holder has the right to convert such shares into Common
Stock until the close of business on the second Business Day immediately
preceding the related redemption date; the then-effective Conversion Price and
the place where certificates for such shares may be surrendered for
conversion; (v) the number of shares of Series A Preferred Stock to be
redeemed and if less than all the shares held by such holder are to be
redeemed, the number of such shares to be so redeemed from such holder; (vi)
the place where certificates for such shares are to be surrendered for payment
of the Redemption Price; and (vii) that after the close of business on such
date fixed for redemption the shares to be redeemed shall not accrue dividends
and (viii) if the Redemption Price will be paid in Common Stock, that the
holder has the right to cause a backstop registration of such Common Stock as
described below. Upon surrender in accordance with the aforesaid notice of
the certificate for any shares of Series A Preferred Stock so redeemed (duly
endorsed or accompanied by appropriate instruments of transfer, if so required
by the Corporation in such notice), the holders of record of such shares shall
be entitled to receive the Redemption Price, without interest. In case fewer
than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the
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holder thereof.
(d) At the option of the Corporation, if notice of redemption is mailed
as aforesaid, and if prior to the date fixed for redemption funds or shares of
Common Stock sufficient to pay in full the Redemption Price are deposited in
trust, for the account of the holders of the shares to be redeemed, with a
bank or trust company named in such notice doing business in the Borough of
Manhattan, The City of New York, State of New York and having capital surplus
and undivided profits of at least $500 million (which bank or trust company
also may be the transfer agent and/or paying agent for the Series A Preferred
Stock), notwithstanding the fact that any certificate(s) for shares called for
redemption shall not have been surrendered for cancellation, on and after such
date of deposit the shares represented thereby so called for redemption shall
be deemed to be no longer outstanding, and all rights of the holders of such
shares as stockholders of the Corporation shall cease, except the right of the
holders thereof to convert such shares in accordance with the provisions of
Section 4 at any time prior to the close of business on the second Business
Day immediately preceding the related redemption date and the right of the
holders thereof to receive out of the funds or shares of Common Stock so
deposited in trust the Redemption Price, without interest, upon surrender of
the certificate(s) representing such shares. Any funds or shares of Common
Stock so deposited with such bank or trust company in respect of shares of
Series A Preferred Stock converted before the close of business on the second
Business Day immediately preceding the related redemption date shall be
returned to the Corporation upon such conversion. Any funds or shares of
Common Stock so deposited with such bank or trust company which shall remain
unclaimed by the holders of shares called for redemption at the end of two
years after the related redemption date shall be repaid to the Corporation, on
demand, and thereafter the holder of any such shares shall look only to the
Corporation for the payment, without interest thereon, of the Redemption
Price.
(e)(i) In lieu of paying the Redemption Price in cash, the Corporation
may, at its sole option, pay such Redemption Price in shares of Common Stock.
(ii) The number of shares of Common Stock issuable in lieu of a cash
payment of the Redemption Price shall be the number of fully paid and
nonassessable shares (calculated to the nearest 1/100th of a share) of Common
Stock (which shares of Common Stock shall consist of authorized but unissued
shares) as shall have an aggregate Specified Value (as defined below) as of
the redemption date equal to the aggregate liquidation preference of the
shares of Series A Preferred Stock being redeemed. The shares to be redeemed
shall be selected pro rata from each holder; provided that, if the number of
shares of Series A Preferred Stock held by a holder which are subject to
redemption as aforesaid is not a whole number, the number of shares of Series
A Preferred Stock held by such holder to be redeemed as aforesaid shall be
rounded upward to the nearest whole number. The shares of Common Stock
issuable on any redemption to be paid in Common Stock will be delivered to the
Corporation for the account of such holders. By their acceptance of shares of
Series A Preferred Stock, each holder thereof shall be deemed (i) to have
accepted the appointment of the Corporation to act as such referred to below
and (ii) to have appointed the Corporation as its attorney-in-fact for
purposes of making any endorsements on certificates for shares of Common Stock
received by such holder upon redemption of shares of Series A Preferred Stock
to the extent any such endorsement is necessary or appropriate for purposes of
effecting the sale of such shares of Common Stock in a Backstop Registration,
as described below. No fractional shares of Common Stock will be issued upon
redemption. A holder of shares of Series A Preferred Stock who would
otherwise be entitled to receive such a fractional share shall, in lieu
thereof, receive cash in an amount equal to the same fraction of the Specified
Value.
(iii) For purposes hereof, "Specified Value" means the Average Closing
Price (as defined in Section 4(e)(vii)) per share of Common Stock as of the
applicable redemption date.
(iv) Before any holder of shares of Series A Preferred Stock shall
receive certificates for shares of Common Stock in respect of the redemption
of shares of Series A Preferred Stock (or cash representing fractional share
settlements in respect thereof) such holder shall surrender the certificate or
certificates of shares of Series A Preferred Stock duly endorsed if required
by the Corporation, at the office of the Corporation and, if certificates for
shares of Common Stock are to be received by such holder, shall state in
writing the name or names and the denominations in which such holder wishes
the certificate or certificates for the Common Stock to be issued. The
Corporation will,
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as soon as practicable after receipt thereof, issue and deliver to such
holder, or such holder's designee or designees, a certificate or certificates
for the number of shares of Common Stock to which such holder shall be
entitled as aforesaid, together with a certificate or certificates
representing any shares of Series A Preferred Stock which are not to be
redeemed, but which shall have constituted part of the shares of Series A
Preferred Stock represented by the certificate or certificates so surrendered.
(v) Each redemption of shares of Series A Preferred Stock paid in Common
Stock shall be deemed to have been made as of the close of business on the
applicable redemption date, so that the rights of the holder of such shares of
Series A Preferred Stock shall, to the extent of such redemption, cease at
such time and the person or person entitled to receive shares of the Common
Stock upon redemption of such shares (including the person or persons to whom
any shares of Common Stock shall have been sold pursuant to a Backstop
Registration (as defined in Section 3(f))) shall be treated for all purposes
as having become the record holder or holders of the Common Stock at such
time, provided, however, that in the event a dividend, distribution,
subdivision, combination, reclassification, merger or similar event is
declared or occurs with respect to the shares of Common Stock, and the record
date for any such action is on or after the close of business on the record
date for such redemption, but prior to the close of business on the date of
such redemption, then the person or persons entitled to receive shares of the
Common Stock upon redemption of shares of Series A Preferred Stock (including
the person or persons to whom any shares of Common Stock shall have been sold
pursuant to a Backstop Registration) shall be treated for purposes of such
action as having become the record holder or holders of the Common Stock at
the close of business on the Trading Day (as defined in Section 4(e)(vii))
next preceding the record date of such redemption. From and after the
redemption, dividends on the shares of Series A Preferred Stock redeemed with
shares of Common Stock as a result of such redemption shall cease to accrue,
and said shares of Series A Preferred Stock shall no longer be deemed to be
outstanding.
(vi) The Corporation will pay any and all taxes that may be payable in
respect of the issuance or delivery of shares of Common Stock upon redemption
of shares of Series A Preferred Stock pursuant hereto. The Corporation shall
not, however, be required to pay any tax which may be payable in respect of
any transfer involved in the delivery of shares of Common Stock pursuant to a
Backstop Registration registered in a name other than the name (x) in which
such shares of Series A Preferred Stock were formerly registered or (y) of any
underwriter participating in such Backstop Registration, and no such issue or
delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Corporation the amount of any such tax, or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
(f) (i) Within 15 days of its receipt of notice pursuant to Section 3(c)
above of a redemption payable in shares of Common Stock, each holder of Series
A Preferred Stock shall have the right to elect not to retain such Common
Stock and to request a backstop registration (a "Backstop Registration") of
the shares of Common Stock received in the redemption by delivering to the
Corporation a written request specifying the amount of Common Stock that the
holder proposes not to retain and to sell pursuant to the Backstop
Registration. A holder's failure to timely deliver such notice shall be
deemed to be an election by the holder thereof to retain such Common Stock.
(ii) The Corporation shall use its best efforts to cause such shares to
be registered under the Securities Act of 1933, as amended (the "Securities
Act") as soon as reasonably practicable so as to permit the sale thereof
promptly. In connection therewith, the Corporation shall prepare, and within
120 days of the receipt of the request, file, on Form S-3 if permitted or
otherwise on the appropriate form, a registration statement under the
Securities Act to effect such registration. Each holder requesting a Backstop
Registration shall thereby be deemed to agree to provide all such information
and materials and to take all such action as may be reasonably required in
order to permit the Corporation to comply with all applicable requirements of
the Securities Act and the Securities and Exchange Commission (the
"Commission") and to obtain any desired acceleration of the effective date of
such registration statement. If the offering to be registered is to be
underwritten, the managing underwriter shall be selected by the Corporation,
and the Corporation and each requesting holder shall enter into an
underwriting agreement containing customary terms and conditions. For
purposes hereof the Common Stock required to be registered is referred to
herein as the "Subject Stock." The Corporation shall not be required to
include Subject Stock
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of any requesting holder therein if the requesting holder does not agree to
offer its stock by or through the underwriters selected by the Corporation for
the registration of the shares of Subject Stock and execute an underwriting
agreement in customary form. If a requesting holder has been permitted to
participate in a proposed offering pursuant to this Section 3(f), the
Corporation thereafter may determine in its sole discretion either not to file
a registration statement, or otherwise not to consummate such offering, in
whole or in part, without any liability hereunder, except as provided herein.
(iii) In connection with any Backstop Registration of shares of Subject
Stock registered pursuant hereto, the Corporation shall (A) furnish to the
requesting holders such number of copies of any prospectus (including
preliminary and summary prospectuses) and conformed copies of the registration
statement (including amendments or supplements thereto and, in each case, all
exhibits) and such other documents as they may reasonably request, but only
while the Corporation shall cause the registration statement to remain
current; (B)(1) use its best efforts to register or qualify the Subject Stock
covered by such registration statement under such blue sky or other state
securities laws for offer and sale and (2) keep such registration or
qualification in effect for so long as the registration statement remains in
effect; (C) use its best efforts to cause all shares of Subject Stock covered
by such registration statement to be registered with or approved by such other
federal or state government agencies or authorities as may be necessary in the
opinion of counsel to the Corporation to enable the requesting holders to
consummate the disposition of such shares of Subject Stock; (D) notify the
requesting holders any time when a prospectus relating thereto is required to
be delivered under the Securities Act upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made, and at the request of
the requesting holders promptly prepare and furnish to them a reasonable
number of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, in the light of
the circumstances under which they were made; (E) otherwise use its best
efforts to comply with all applicable rules and regulations of the Commission;
(F) use its best efforts to list the Subject Stock covered by such
registration statement on the New York Stock Exchange or on any other
securities exchange on which Subject Stock is then listed; and (G) before
filing any registration statement or any amendment or supplement thereto, and
as far in advance as is reasonably practicable, furnish to the requesting
holders copies of such documents. In connection with any offering of Subject
Stock registered pursuant to this Section 3(f), the Corporation shall (x)
furnish to the underwriter unlegended certificates representing ownership of
the Common Stock being sold in such denominations as requested and (y)
instruct any transfer agent and registrar of the Subject Stock to release any
stop transfer orders with respect to such Subject Stock. Upon any
registration becoming effective pursuant to this Section 3(f), the Corporation
shall use its best efforts to keep such registration statement current for a
period of 60 days (or 90 days, if the Corporation is eligible to use a Form
S-3, or successor form) or such shorter period as shall be necessary to effect
the distribution of the Subject Stock.
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(iv) By requesting Backstop Registration, each requesting holder shall
be deemed to agree that upon receipt of any notice from the Corporation of the
happening of any event of the kind described in subdivision (iii)(D) of this
Section 3(f), it will forthwith discontinue its disposition of Subject Stock
pursuant to the registration statement relating to such Subject Stock until
its receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (iii)(D) of this Section 3(f) and, if so directed
by the Corporation, will deliver to the Corporation all copies then in its
possession of the prospectus relating to such Subject Stock current at the
time of receipt of such notice.
(v) The Corporation shall pay all agent fees and commissions and
underwriting discounts and commissions related to shares of Subject Stock
being sold by the requesting holders, the fees and disbursements of one
counsel for the requesting holders which shall be selected by a majority in
interest of the requesting holders and all other fees and expenses in
connection with any registration statement hereunder, including, without
limitation, all registration and filing fees, all printing costs, all fees and
expenses of complying with securities or blue sky laws and fees and
disbursements of the Corporation's counsel and accountants.
(vi) In the case of any offering registered pursuant hereto, the
Corporation agrees to indemnify and hold the requesting holders, each
underwriter of the Subject Stock under such registration and each person who
controls any of the foregoing within the meaning of Section 15 of the
Securities Act, and any officer, employee or partner of the foregoing,
harmless against any and all losses, claims, damages, or liabilities
(including reasonable legal fees and other reasonable expenses incurred in the
investigation and defense thereof) to which they or any of them may become
subject under the Securities Act or otherwise (collectively "Losses"), insofar
as any such Losses shall arise out of or shall be based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement relating to the sale of such Subject Stock (as amended
if the Corporation shall have filed with the Commission any amendment
thereof), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the prospectus relating to the sale of such Subject
Stock (as amended or supplemented if the Corporation shall have filed with the
Commission any amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, provided, however, that the indemnification contained in
this Section 3(f)(vi) shall not apply to such Losses which shall arise out of
or shall be based upon any such untrue statement or alleged untrue statement,
or any such omission of alleged omission, which shall have been made in
reliance upon and in conformity with information furnished in writing to the
Corporation by a requesting holder or any such underwriter, as the case may
be, specifically for use in connection with the preparation of the
registration statement or prospectus contained in the registration statement
or any such amendment thereof or supplement thereto.
In the case of each Backstop Registration pursuant to this Section 3(f),
each requesting holder and each underwriter participating therein shall agree,
substantially in the same manner and to the same extent as set forth in the
preceding paragraph, severally to indemnify and hold harmless the Corporation
and each person, if any, who controls the Corporation within the meaning of
Section 15 of the Securities Act, and the directors and officers of the
Corporation, with respect to any statement in or omission from such
registration statement or prospectus contained in such registration statement
(as amended or as supplemented, if amended or supplemented as aforesaid) if
such statement or omission shall have been made in reliance upon and in
conformity with information furnished in writing to the Corporation by a
requesting holder or such underwriter, as the case may be, specifically for
use in connection with the preparation of such registration statement or
prospectus contained in such registration statement or any such amendment
thereof or supplement thereto.
If the indemnification provided for in this Section 3(f) is unavailable
to an indemnified party or is insufficient to hold such indemnified party
harmless from any Losses in respect of which this Section 3(f) would otherwise
apply by its terms (other than by reason of exceptions provided herein), then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall have a joint and several obligation to contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate
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to reflect the relative benefits received by and fault of the indemnifying
party, on the one hand, and such indemnified party, on the other hand, in
connection with the offering to which such contribution relates as well as any
other relevant equitable considerations. The relative benefit shall be
determined by reference to, among other things, the amount of proceeds
received by each party from the offering to which such contribution relates.
The relative fault shall be determined by reference to, among other things,
each party's relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, and the opportunity to
correct and prevent any statement or omission. The amount paid or payable by
a party as a result of any Losses shall be deemed to include any legal or
other fees or expenses incurred by such party in connection with any
investigation or proceeding, to the extent such party would have been
indemnified for such expenses if the indemnification provided for in this
Section 3(f) was available to such party.
(g) When the offering contemplated by Section 3(f) above has been
completed, the net proceeds thereof shall be distributed to the requesting
holders pro rata in respect of their interests in the Subject Stock. Any such
offering not consummated within six months of delivery of the notice to the
Corporation pursuant to Section 3(f)(i) shall be deemed to have been
abandoned. To the extent the net proceeds per share to each requesting holder
from such offering (treating the net proceeds as zero if such offering has
been abandoned) are less than the sum of the Redemption Price and the Interest
Amount (as defined below) in respect of such requesting holder's shares of
Series A Preferred Stock redeemed pursuant to this Section, the Corporation
shall pay to each requesting holder an amount in cash equal to the applicable
difference. "Interest Amount" means, with respect to the Redemption Price
payable to any holder for such holder's shares of Series A Preferred Stock
redeemed pursuant to this Section, interest on such Redemption Price for each
day, from the applicable redemption date to and including the date of payment
pursuant to this Section 3(g) at a rate per annum equal to the rate per annum,
as published by the Board of Governors of the Federal Reserve System as
reported by the U.S. Department of Treasury, for such day on U.S. Treasury
Bonds maturing on the date that is the tenth anniversary of such redemption
date (or if no U.S. Treasury Bonds mature on such date, then on the date
nearest to such date for which such a maturity exists).
SECTION 4. Conversion Rights. The holders of shares of Series A
Preferred Stock shall have the right, at their option, to convert such shares
into shares of Common Stock on the following terms and conditions:
(a) Each share of Series A Preferred Stock shall be convertible,
at the option of the holder thereof, at any time after the date of
issuance of such share and prior to the close of business of the
Corporation on the second Business Day immediately preceding any date
set for the redemption thereof (provided that consideration sufficient
to redeem all shares to be redeemed on such date has been paid or made
available for payment on or prior to such date), at the office of the
Corporation or any transfer agent for the Series A Preferred Stock, into
such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing $50 by the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. The price at
which shares of Common Stock shall be deliverable upon conversion (the
"Conversion Price") shall initially be $69.105 per share of Common
Stock. The Conversion Price shall be subject to adjustment from time to
time as hereinafter provided. No payment or adjustment shall be made on
account of any dividend on the shares of Common Stock issued upon
conversion of shares of Series A Preferred Stock if the record date for
such dividend occurs prior to the date of such conversion. If any
shares of Series A Preferred Stock shall be called for redemption, the
right to convert the shares designated for redemption shall terminate
after the close of business on the second Business Day immediately
preceding the date fixed for redemption unless default is made in the
payment of the Redemption Price. In the event of default in the payment
of the Redemption Price, the right to convert the shares designated for
redemption shall terminate at the close of business on the Business Day
immediately preceding the date that such default is cured.
(b) In order to convert shares of Series A Preferred Stock into
Common Stock, the holder thereof shall surrender the certificates
therefor, duly endorsed if the Corporation shall so require, or
accompanied by appropriate instruments of transfer satisfactory to the
Corporation, at the office of the transfer agent for the Series A
Preferred Stock, or at such other office as may be designated by the
Corporation, together with written notice that such holder irrevocably
elects to convert such shares of Series A Preferred Stock. Such
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notice shall also state the name and address in which such holder wishes
the certificate for the shares of Common Stock issuable upon conversion
to be issued. As soon as practicable after receipt of the certificates
representing the shares of Series A Preferred Stock to be converted and
the notice of election to convert the same, the Corporation shall issue
and deliver at said office a certificate for the number of whole shares
of Common Stock issuable upon conversion of the shares of Series A
Preferred Stock surrendered for conversion, together with a cash payment
in lieu of any fraction of a share, as hereinafter provided, to the
person entitled to receive the same. If more than one stock certificate
for Series A Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares represented by all the certificates so
surrendered. Shares of Series A Preferred Stock shall be deemed to have
been converted immediately prior to the close of business on the date
such shares are surrendered for conversion and notice of election to
convert the same is received by the Corporation in accordance with the
foregoing provision, and the person entitled to receive the Common Stock
issuable upon such conversion shall be deemed for all purposes as the
record holder of such Common Stock as of such date.
(c) Dividends shall cease to accrue on shares of Series A
Preferred Stock surrendered for conversion into Common Stock from and
after the date of conversion; provided, however, that any accrued but
unpaid dividends (whether or not declared and whether or not funds are
legally available for payment) upon such shares to and including the
conversion date shall be paid in cash upon such conversion or as soon
thereafter as permitted by law.
(d) No fractional shares of Common Stock shall be issued upon
conversion of any shares of Series A Preferred Stock. If more than one
share of Series A Preferred Stock is surrendered at one time by the same
holder, the number of full shares issuable upon conversion thereof shall
be computed on the basis of the aggregate number of shares so
surrendered. If the conversion of any shares of Series A Preferred
Stock results in a fractional share of Common Stock, the Corporation
shall pay cash in lieu thereof in an amount equal to such fraction
multiplied by the Average Closing Price, determined as provided in
subsection (vii) of Section 4(e) below, on the date on which the shares
of Series A Preferred Stock were duly surrendered for conversion, or if
such date is not a Trading Date, on the next succeeding Trading Date.
(e) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Corporation shall pay or make a dividend or
other distribution on shares of Common Stock or any other class of
capital stock of the Corporation in Common Stock, the Conversion
Price in effect at the opening of business on the date following
the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number
of shares and the total number of shares constituting such
dividend or other distribution, such reduction to become effective
immediately after the opening of business on the date following
the date fixed for such determination. For purposes of this
subsection, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Corporation. The Corporation will not pay any dividend or make
any distribution on shares of Common Stock held in the treasury of
the Corporation.
(ii) In case the Corporation shall issue shares of Common
Stock or rights or warrants or other securities convertible into
or exchangeable or exercisable for shares of Common Stock to any
person (other than pursuant to (A) a dividend reinvestment plan,
(B) the exercise of stock options granted with the approval of the
Corporation's Board of Directors where the exercise price is not
less than the Average Closing Price on the date the option was
granted, (C) a restricted stock plan where the issuance is
consistent with the past practices of the corporation or, prior to
the Initial
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Issuance Date, Martin Marietta Corporation as determined by the
Board of Directors, or (D) a stock option or other stock incentive
plan where the issuance is required in accordance with the
Corporation's obligation to provide benefits similar to those
provided under plans of General Electric Company in effect prior
to the Initial Issuance Date as determined by the Board of
Directors) entitling such person to subscribe for or purchase
shares of Common Stock at a price per share (or having a
conversion, exercise or exchange price per share) in any case,
less than the Average Closing Price per share (determined as
provided in subsection (vii) below) of the Common Stock on the
date of issuance (or in the case of any issuance of Common Stock,
rights, warrants or such other securities to all holders of Common
Stock, on the date fixed for the determination of the holders
entitled to receive such Common Stock, rights, warrants or other
securities), the Conversion Price in effect at the opening of
business on the day following the date of such issuance or the
date fixed for such determination, as the case may be, shall be
reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date of such issuance
or the date fixed for such determination, as the case may be, plus
the number of shares of Common Stock which the aggregate
consideration receivable by the Corporation for the total number
of shares of Common Stock so offered for subscription or purchase
(or into or for which such rights, warrants or other securities
are convertible, exchangeable or exercisable) would purchase at
such Average Closing Price and the denominator shall be the number
of shares of Common Stock outstanding at the close of business on
the date of such issuance or the date fixed for such
determination, as the case may be, plus the number of shares of
Common Stock so offered for subscription or purchase (or into or
for which such rights, warrants or other securities are
convertible, exchangeable or exercisable), such reduction to
become effective immediately after the opening of business on the
date following the date of such issuance or the date fixed for
such determination, as the case may be. For the purposes of this
subsection (ii), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Corporation. The Corporation will not issue any rights, warrants
or other securities convertible into or exchangeable or
exercisable for shares of Common Stock held in the treasury of the
Corporation. If after the Distribution Date, as defined in the
Rights Agreement, holders converting shares of Series A Preferred
Stock are not entitled to receive the Rights which would otherwise
be attributable (but for the date of conversion) to the shares of
Common Stock received upon such conversion, then adjustment of the
Conversion Price shall be made under this subsection (ii) as if
the Rights were then being issued to holders of the Common Stock.
If such an adjustment is made and the Rights are later redeemed,
invalidated or terminated, then a corresponding reversing
adjustment shall be made to the Conversion Price, on an equitable
basis, to take account of such event. However, the Corporation
may elect to provide that each share of Common Stock issuable upon
conversion of the Series A Preferred Stock, whether or not issued
after the Distribution Date for such Rights, will be accompanied
by the Rights which would otherwise be attributable (but for the
date of conversion) to such shares of Common Stock, in which event
the preceding two sentences will not apply.
(iii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case
may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(iv) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its
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Common Stock or any other class of capital stock of the
Corporation evidences of its indebtedness or assets (including
securities, but excluding (x) any rights, warrants or other
securities referred to in subsection (ii) above, (y) any regular
quarterly dividend of the Corporation paid in cash out of the
consolidated earnings or consolidated retained earnings of the
Corporation in an amount not exceeding 125% of the average of the
four regular quarterly dividends paid by the Corporation for the
immediately preceding four quarters (including for this purpose
dividends paid by Martin Marietta Corporation prior to the Initial
Issuance Date), and (z) any dividend or distribution referred to
in subsection (i) above), the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the
numerator shall be the Average Closing Price (determined as
provided in subsection (vii) below) of the Common Stock on the
date fixed for such determination less the then fair market value
(as reasonably determined by the Board of Directors, whose
determination shall be conclusive and shall be described in a
statement filed with the transfer agent for the Series A Preferred
Stock) of the portion of the evidences of indebtedness or assets
so distributed applicable to one share of Common Stock and the
denominator shall be such Average Closing Price per share of the
Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive
such distribution.
(v) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which Section
4(g) below applies) shall be deemed to involve (A) a distribution
of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification
shall be deemed to be
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"the date fixed for the determination of stockholders entitled to
receive such distribution" and the "date fixed for such
determination" within the meaning of subsection (iv) above), and
(B) a subdivision or combination as the case may be, of the number
of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such
combination becomes effective" as the case may be, and "the day
upon which such subdivision or combination becomes effective"
within the meaning of subsection (iii) above.
(vi) In case at any time the Corporation or any subsidiary
thereof shall repurchase, by self tender offer or otherwise, any
shares of Common Stock of the Corporation at a weighted average
purchase price in excess of the Average Closing Price (as defined
in subsection (vii) below) on the Business Day immediately prior
to the earliest of the date of such repurchase, the commencement
of an offer to repurchase or the public announcement of either
(such date being referred to as the "Determination Date"), the
Conversion Price in effect as of such Determination Date shall be
reduced by multiplying such Conversion Price by a fraction, the
numerator of which shall be (I) the product of (x) the number of
shares of Common Stock outstanding on such Determination Date and
(y) the Average Closing Price of the Common Stock on such
Determination Date minus (II) the aggregate purchase price of such
repurchase and the denominator of which shall be the product of
(x) the number of shares of Common Stock outstanding on such
Determination Date minus the number of shares of Common Stock
repurchased by the Company or any subsidiary thereof in such
repurchase and (y) the Average Closing Price of the Common Stock
on such Determination Date. An adjustment made pursuant to this
subsection (vi) shall become effective immediately after the
effective date of such repurchase.
(vii) For the purposes of any computation under these
provisions of the Corporation's Charter, the Average Closing Price
per share of Common Stock on any day shall be deemed to be the
average of the closing prices for the Common Stock for the 20
consecutive Trading Days commencing 30 Trading Days before the day
in question, with each day's closing sale price being the reported
last sale price regular way or, in case no such reported sale
takes place on such day, the average of the reported closing bid
and asked prices, in either case on the New York Stock Exchange
or, if the Common Stock is no longer listed or admitted to trading
on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange,
on the National Association of Securities Dealers Automated
Quotations National Market System or, if the Common Stock is not
listed or admitted to trading on any national securities exchange
or quoted on such National Market System, the average of the
closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from
time to time by the Board of Directors for that purpose. As used
herein, the term "Trading Day" shall mean a date on which the New
York Stock Exchange (or any successor to such Exchange) is open
for the transaction of business.
(viii) No adjustment in the Conversion Price for the Series
A Preferred Stock shall be required unless such adjustment would
require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this
subsection (viii) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section shall be made to the nearest cent
or to the nearest one-hundredth of a share, as the case may be.
(f) Whenever the Conversion Price shall be adjusted as herein
provided (i) the Corporation shall forthwith make available at the
office of the transfer agent for the Series A Preferred Stock a
statement describing in reasonable detail the adjustment, the facts
requiring such adjustment and the method of calculation used; and (ii)
the Corporation shall cause to be mailed by first class mail, postage
prepaid, as soon as practicable to each holder of record of shares of
Series A Preferred Stock a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion Price.
(g) In the event that the Corporation shall be a party to any
transaction constituting a recapitalization, reclassification,
consolidation, merger, share exchange, or a sale, lease or conveyance of
all or substantially all of its assets, the holder of each share of
Series A Preferred Stock shall have the right, after such consolidation,
merger, sale or exchange to convert such share into the number and kind
of shares of stock or other securities, and the amount of cash or other
property receivable upon such consolidation, merger, sale or exchange by
a holder of the number of shares of Common Stock issuable upon
conversion of such share of Series A Preferred Stock immediately prior
to such consolidation, merger, sale or exchange. No provision shall be
made for adjustments in the Conversion Price. The provisions of this
Section 4(g) shall similarly apply to any such successive event.
(h) The Corporation shall not be required to pay any taxes which
may be payable in respect of any transfer involved in the issuance of
shares of Common Stock in the name other than that in which the shares
of Series A Preferred Stock so converted are registered, and the
Corporation shall not be required to issue or deliver any such shares
unless and until the person requesting such issuance in another name
shall have paid to the Corporation the amount of any such taxes, or
shall have established to the satisfaction of the Corporation that such
taxes have been paid.
(i) The Corporation may make such reductions in the Conversion
Price, in addition to those required by subsections (i) through (vi) of
Section 4(e) above, as it considers to be advisable in order that any
event treated for federal income tax purposes as a dividend of stock or
stock rights shall not be taxable to the recipients.
(j) Except as provided in this Section 4, the Corporation will
not, by amendment of its Charter or
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through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Corporation, but will at
all times in good faith assist in the carrying out of all the provisions
of this Section 4 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of
the holders of the Series A Preferred Stock against impairment.
(k) The Corporation shall at all times reserve and keep available
out of its authorized but unissued Common Stock the full number of
shares of Common Stock issuable upon the conversion of all shares of
Series A Preferred Stock then outstanding.
(l) In the event that:
(i) the Corporation shall declare a dividend or any other
distribution on its Common Stock (other than any regular quarterly
dividend described in Section 4(e)(iv) above) payable otherwise
than in cash out of consolidated earnings or consolidated retained
earnings;
(ii) the Corporation shall authorize the granting to the
holders of its Common Stock of rights to subscribe for or purchase
any shares of capital stock of any class or of any other rights;
(iii) any capital reorganization of the Corporation,
reclassification of the capital stock of the Corporation,
consolidation or merger of the Corporation with or into another
corporation, or sale, lease or conveyance of all or substantially
all of the assets of the Corporation occurs;
(iv) the voluntary or involuntary dissolution, liquidation
or winding up of the Corporation occurs; or
(v) any other event for which an adjustment would be
required pursuant to subsections (i) through (vi) of Section 4(e)
or pursuant to Section 4(g) occurs; the Corporation shall cause to
be mailed to the holders of record of Series A Preferred Stock at
least 20 days prior to the applicable date hereinafter specified a
notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution or rights or, if a
record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined or (y) the date on
which such reorganization, reclassification, consolidation,
merger, sale, lease, conveyance, dissolution, liquidation or
winding up or other event specified in subsections (i) through (v)
of this Section 4(l) is expected to take place, and the date, if
any is to be fixed, as of which holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, lease, conveyance,
dissolution, liquidation or winding up or other such event.
Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reorganization, reclassification, consolidation, merger, sale,
lease, conveyance, dissolution, liquidation or winding up or other
such event.
SECTION 5. Voting Rights. (a) Except as otherwise provided by
paragraphs (b), (c) and (e) of this Section 5 or as required by law, the
holders of shares of Series A Preferred Stock shall not be entitled to vote on
any matter on which the holders of any voting securities of the Corporation
shall be entitled to vote.
(b) Upon a default with respect to the Corporation's senior bank
facility or any successor thereto or replacement thereof (as amended from time
to time, the "Senior Bank Facility") that is not substantially cured within
six months from the declaration thereof pursuant to the Senior Bank Facility
(but without regard to any waivers granted by the lenders under such Senior
Bank Facility) (a "Bank Debt Default"), the holders of the Series A Preferred
Stock, voting as a separate class, shall be entitled to elect the smallest
number of directors of the
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Corporation's Board of Directors that shall constitute no less than 25% of the
authorized number of directors of the Corporation's Board of Directors until
such right is terminated as provided herein. The voting rights provided by
this Section 5(b) shall terminate immediately upon the initial holder of all
outstanding shares of Series A Preferred Stock being no longer entitled to
designate any director pursuant to Section 3.02 of the Standstill Agreement to
be entered into between the Corporation and General Electric Company (the
"Agreement") and the holders of the Series A Preferred Stock, following such
termination, shall have only the voting rights provided by Sections 5(c) and
(e) below or as otherwise required by law.
(c) In the event that dividends payable on the Series A Preferred Stock
shall be in arrears for six quarters (whether or not consecutive) (a
"Preferred Dividend Default") and the holders of the Series A Preferred Stock
are not then represented on the Corporation's Board of Directors by directors
elected as a result of a Bank Debt Default, a majority in interest of the
holders of Series A Preferred Stock, voting separately as a class with holders
of shares of any other class of Preferred Stock upon which like voting rights
have been conferred and are exercisable, shall be entitled to elect two
directors of the Corporation until such right is terminated as provided
herein.
(d)(i) Upon the occurrence of a Bank Debt Default or a Preferred
Dividend Default, the Board of Directors of the Company shall promptly call a
special meeting of the holders of shares of Series A Preferred Stock (and, in
the case of a Preferred Dividend Default, any holders of shares of any other
class of Preferred Stock who are then entitled to participate in the election
of such directors) for the purpose of electing the directors provided by the
foregoing provisions; provided that, in lieu of holding such meeting, the
holders of record of Series A Preferred Stock (and, in the case of a Preferred
Dividend Default, the holders of any such other Preferred Stock) may, by
action taken by written consent as permitted by law and the Charter and By-
Laws of the Corporation, elect such directors. At elections for such
directors, each holder of Series A Preferred Stock shall be entitled to one
vote for each share held. Upon the vesting of voting rights in the holders of
Series A Preferred Stock as a result of a Preferred Dividend Default or a Bank
Debt Default, the maximum authorized number of members of the Board of
Directors shall automatically be increased by two (or such greater number as
may be required in respect of a Bank Debt Default). The two vacancies (or
greater number) so created shall be filled by vote of the holders of Series A
Preferred Stock (and, in the case of a Preferred Dividend Default, the holders
of any such other Preferred Stock). The right of the holders of Series A
Preferred Stock, voting separately as a class (except as aforesaid), to elect
members of the Board of Directors of the Corporation in the manner described
above shall continue until such time as any Bank Debt Default shall have
ceased (other than as a result of any waiver, amendment or accommodation
granted by the lenders under such Senior Bank Facility), or all dividends
accumulated on Series A Preferred Stock shall have been paid in full, as the
case may be, at which time such right shall terminate, except as required by
law, subject to vesting in the event of each and every subsequent Bank Debt
Default and Preferred Dividend Default.
(ii) Upon any termination of the right of the holders of Series A
Preferred Stock (and, in the case of a Preferred Dividend Default, the holders
of shares of any other class of Preferred Stock who are then entitled to vote
on the election of directors) to vote as a class for directors as herein
provided, the term of office of all directors then in office elected by
holders of Series A Preferred Stock (or such other holders, as the case may
be) voting as a class (hereunder referred to as a "Preferred Stock Director")
shall terminate immediately. Any Preferred Stock Director may be removed by,
and shall not be removed otherwise than by, the vote of the holders of record
of Series A Preferred Stock (or, in the case of any Preferred Stock Director
elected as a result of a Preferred Dividend Default, the holders of Series A
Preferred together with holders of any other Preferred Stock that participated
in the election of such Preferred Stock Director) voting as a separate class,
at a meeting called for such purpose or by written consent as permitted by law
and the Charter and By-Laws of the Corporation. If the office of any
Preferred Stock Director becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise, the remaining
Preferred Stock Director or Directors may choose a successor who shall hold
office for the unexpired term in respect of which such vacancy occurred or, if
none remains in office, by vote of the holders of record of Series A Preferred
Stock (or, in the case of any Preferred Stock Director elected as a result of
a Preferred Dividend Default, the holders of Series A Preferred together with
holders of any other Preferred Stock that participated in the election of such
Preferred Stock Director). Holders of Series A Preferred Stock shall not, as
such stockholders, be entitled to vote on the election or removal of directors
other than Preferred Stock Directors.
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Whenever the special voting powers vested in the holders of Series A Preferred
Stock as provided herein shall have expired, the number of directors shall
become such number as may be provided for in the By-Laws, irrespective of any
increase made pursuant to the provisions hereof.
(iii) So long as any shares of the Series A Preferred Stock remain
outstanding, the consent of the holders of at least 66 2/3% of the shares of
Series A Preferred Stock then outstanding (voting separately as a class) given
in person or by proxy, at any special or annual meeting called for such
purpose, or by written consent as permitted by law and the Charter and By-Laws
of the Corporation, shall be necessary to amend, alter or repeal any of the
provisions of the Charter of the Corporation which would adversely affect any
right, preference, privilege or voting power of Series A Preferred Stock or of
the holders thereof; provided, however, that any such amendment, alteration or
repeal, that would authorize, create or issue any additional shares of
Preferred Stock or any other shares of stock (whether or not already
authorized) ranking on a parity with or junior to the Series A Preferred Stock
as to dividends and on the distribution of assets upon liquidation,
dissolution or winding up, shall be deemed not to materially and adversely
affect such rights, preferences, privileges or voting powers.
(e) The holder of each share of Series A Preferred Stock shall be
entitled to vote together with the holders of shares of Common Stock and to
cast the number of votes equal to the number of shares of Common Stock into
which such shares of Series A Preferred Stock are then convertible in the
event of any merger, consolidation or business combination or share exchange
involving the Corporation or any sale, lease or conveyance of all or
substantially all of the assets of the Corporation upon which the holders of
Common Stock shall be entitled to vote, provided, however, that the holders of
the Series A Preferred Stock shall not be entitled to vote upon acquisitions
which, within any 12-month period, do not (i) involve greater than an
aggregate of Twenty-Five Million Dollars ($25,000,000) of transaction value
(including assumed liabilities, whether contingent or not) or (ii) adversely
affect the economic or legal position of the Series A Preferred Stock or its
rights, preferences, privileges or voting powers.
(f) The foregoing voting provisions shall not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of the Series A Preferred
Stock shall have been redeemed for cash or converted or Common Stock and
funds, if any, necessary for such redemption or conversion shall have been
deposited in trust to effect such redemption.
SECTION 6. Liquidation Rights. (a) Subject to the rights of holders of
any class of Preferred Stock which the Corporation may in the future issue
which ranks on a parity with the Series A Preferred Stock, upon any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary (collectively, a "Liquidation"), the holders
of shares of Series A Preferred Stock shall be entitled to receive out of the
assets of the Corporation available for distribution to stockholders, whether
from capital, surplus or earnings, before any distribution or payment is made
to holders of Common Stock of the Corporation or on any other class of stock
of the Corporation ranking junior as to assets distributable upon Liquidation
to the shares of Series A Preferred Stock upon a Liquidation, liquidating
distributions in the amount of $50 per share, plus an amount equal to all
dividends accrued and unpaid thereon (including dividends accumulated and
unpaid) to the date of Liquidation, and no more.
(b) Written notice of any Liquidation, stating the payment date or dates
when and the place or places where the amounts distributable in such
circumstances shall be payable, shall be given by first class mail, postage
prepaid, not less than 30 days prior to any payment date stated therein, to
the holders of record of the Series A Preferred Stock at their respective
addresses as the same shall appear on the books of the Corporation or any
transfer agent for the Series A Preferred Stock.
(c) Neither the merger or consolidation of the Corporation into or with
any other corporation, nor the merger or consolidation of any other
corporation into or with the Corporation, nor a sale, transfer or lease of all
or any part of the assets of the Corporation, shall, without further corporate
action, be deemed to be a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this Section 6.
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SECTION 7. Tax Provisions. (a) The Corporation will treat the Series A
Preferred Stock as equity (not debt) for all federal, state, local and other
tax purposes.
(b) The Corporation will use its reasonable best efforts to ensure that
it has adequate earnings and profits, within the meaning of Section 312 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any successor
provision, to ensure that all dividend distributions on the Series A Preferred
Stock and all distributions in redemption of the Series A Preferred Stock that
are treated as distributions with respect to stock under Section 302(d) of the
Code (or any successor provision) will be treated as dividends within the
meaning of Section 316 of the Code (or any successor provision); provided that
such reasonable best efforts shall not require the Corporation to incur any
material out-of-pocket costs unless such costs are reimbursed by the initial
holder of the Series A Preferred Stock.
SECTION 8. Defined Terms. Terms used but not otherwise defined herein
shall have the meanings set forth in the Charter of the Corporation.
B. Series Preferred Stock
The Board of Directors of the Corporation shall have the power from time
to time (a) to classify or reclassify, in one or more series, any unissued
shares of Series Preferred Stock and (b) to reclassify any unissued shares of
any series of Series Preferred Stock, in the case of either (a) or (b) by
setting or changing the number of shares constituting such series and the
designation, preference, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of such shares and, in such event, the Corporation
shall file for record with the State Department of Assessments and Taxation of
Maryland articles supplementary in substance and form as prescribed by the
Maryland General Corporation Law.
C. Common Stock
Subject to the rights of holders of shares of Series A Preferred Stock
and any series of Series Preferred Stock established pursuant to Section B of
this Article VI, each share of Common Stock shall entitle the holder to one
vote per share on all matters upon which stockholders are entitled to vote, to
receive dividends and other distributions authorized by Board of Directors in
accordance with the Maryland General Corporation Law and to all rights of a
stockholder pursuant to the Maryland General Corporation Law. The Common
Stock shall have no preferences or preemptive, conversion or exchange rights.
D. General
In determining whether a distribution (other than upon voluntary or
involuntary liquidation), by dividend, redemption or other acquisition of
shares or otherwise, is permitted under the Maryland General Corporation Law,
no effect shall be given to amounts that would be needed, if the Corporation
were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of stockholders whose preferential rights
upon dissolution are superior to those receiving the distribution.
ARTICLE VII
PROVISIONS DEFINING, LIMITING
AND REGULATING POWERS
The following provisions are hereby adopted for the purpose of defining,
limiting and regulating the powers of the Corporation and the Directors and
stockholders, subject, however, to any provisions, conditions and restrictions
hereafter authorized pursuant to Article VI hereof:
SECTION 1. The Board of Directors of the Corporation is empowered
to authorize the issuance
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from time to time of shares of its stock of any class, whether now or
hereafter authorized, and securities convertible into shares of its
stock of any class, whether now or hereafter authorized, for such
consideration as the Board of Directors may deem advisable, subject to
such limitations and restrictions, if any, as may be set forth in the
By-Laws of the Corporation.
SECTION 2. No holders of shares of stock of the Corporation of
any class shall have any preemptive or other right to subscribe for or
purchase any part of any new or additional issue of stock of any class
or of securities convertible into stock of any class, whether now or
hereafter authorized, and whether issued for money, for a consideration
other than money or by way of dividend.
SECTION 3. The Board of Directors shall have the power, from time
to time, to determine whether any, and if any, what part, of the surplus
of the Corporation shall be declared in dividends and paid to the
stockholders, and to direct and determine the use and disposition of any
such surplus. The Board of Directors may in its discretion use and
apply any of such surplus in purchasing or acquiring any of the shares
of the stock of the Corporation, or any of its bonds or other evidences
of indebtedness, to such extent and in such manner and upon such lawful
terms as the Board of Directors shall deem expedient.
SECTION 4. The Corporation reserves the right to make from time
to time any amendments of its Charter which may now or hereafter be
authorized by law, including but not restricted to, any amendments
changing the terms of any class of its stock by classification,
reclassification or otherwise.
SECTION 5. Notwithstanding any provision of law requiring any
action to be taken or authorized by the affirmative vote of the holders
of a designated proportion of the shares of stock of the Corporation, or
to be otherwise taken or authorized by vote of the stockholders, such
action shall be effective and valid, except as otherwise required by
provisions of the Charter, if taken or authorized by the affirmative
vote, at a meeting, of the holders of a majority of the total number of
shares outstanding and entitled to vote thereon.
ARTICLE VIII
BY-LAWS
The Board of Directors shall have the power, at any regular or special
meeting of the Board, to make and adopt By-Laws, or to amend, alter or repeal
any By-Laws of the Corporation. The By-Laws may contain any provision for the
regulation and management of the affairs of the Corporation not inconsistent
with law or the provisions of the Charter.
ARTICLE IX
INSPECTION OF RECORDS BY STOCKHOLDERS
The Board of Directors shall have power to determine from time to time
whether and to what extent and at what times and places and under what
conditions and regulations the books, records, accounts, and documents of the
Corporation, or any of them, shall be open to inspection by stockholders,
except as otherwise provided by law or by the By-Laws; and except as so
provided no stockholders shall have any rights to inspect any book, record,
account or document of the Corporation unless authorized to do so by
resolution of the Board of Directors.
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ARTICLE X
COMPENSATION
The Board of Directors in its discretion may allow, in and by the By-
Laws of the Corporation or by resolution, the payment of expenses, if any, to
directors for attendance at each regular or special meeting of the Board of
Directors or of any committee thereof, and the payment of reasonable
compensation to such directors for their services as members of the Board of
Directors, or any committee thereof, and shall fix the basis and conditions
upon which such expenses and compensation shall be paid. Any member of the
Board of Directors or of a committee thereof, also may serve the Corporation
in any other capacity and receive compensation therefor in any form.
ARTICLE XI
INDEMNIFICATION AND LIMITATION OF
LIABILITY OF DIRECTORS AND OFFICERS
SECTION 1. The Board of Directors shall have the power to adopt By-Laws
or resolutions for the indemnification of the Corporation's directors,
officers, employees, and agents, provided that any such By-Laws or resolutions
shall be consistent with applicable law.
SECTION 2. To the maximum extent that Maryland law in effect from time
to time permits limitation of the liability of directors and officers, no
director or officer of the Corporation shall be liable to the Corporation or
its stockholders for money damages. Neither the amendment nor repeal of this
Article, nor the adoption or amendment of any provision of the Charter or By-
Laws inconsistent with this Article, shall apply to or affect in any respect
the applicability of the preceding sentence with respect to any act or failure
to act which occurred prior to such amendment, repeal or adoption.
ARTICLE XII
INFORMAL ACTION BY BOARD OF DIRECTORS
Any action required or permitted to be taken at any meeting of the Board
of Directors, or of any committee thereof, may be taken without a meeting, if
a written consent to such action is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board or committee.
ARTICLE XIII
BUSINESS COMBINATIONS
SECTION 1. The affirmative vote of the holders of not less than (i) 80%
of the outstanding shares of "Voting Stock" (as hereinafter defined) of the
Corporation and (ii) not less than 67% of the outstanding shares of Voting
Stock of the Corporation held by stockholders other than a "Related Person"
(as hereinafter defined) shall be required for the approval or authorization
of any "Business Combination" (as hereinafter defined) involving a Related
Person; provided, however, that the foregoing voting requirements shall not be
applicable and the provisions of the Charter related to the percentage of
stockholder approval required, if any, shall apply to any such Business
Combination if:
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Clause 1. The "Continuing Directors" of the Corporation (as
hereinafter defined) by a two-thirds vote have expressly approved the
Business Combination either in advance of or subsequent to the
acquisition of outstanding shares of Voting Stock of the Corporation
that caused the Related Person to become a Related Person; or
Clause 2. The following conditions are satisfied:
(a) The aggregate amount of the cash and fair market value
of the property, securities, or other consideration to be received
per share of Voting Stock of the Corporation in the Business
Combination by holders of Voting Stock of the Corporation, other
than the Related Person involved in the Business Combination, is
not less than the "Highest Per Share Price" or the "Highest
Equivalent Price" (as these terms are hereinafter defined) paid
after March 21, 1983, by the Related Person in acquiring any of
its holdings of the Corporation's Voting Stock; and
(b) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934 shall have been mailed to all
stockholders of the Corporation for the purpose of soliciting
stockholder approval of the Business Combination. The proxy
statement shall contain at the front thereof, in a prominent
place, the position of the Continuing Directors as to the
advisability (or inadvisability) of the Business Combination and,
if deemed advisable by a majority of the Continuing Directors, the
opinion of an investment banking firm selected by the Continuing
Directors as to the fairness of the terms of the Business
Combination, from the point of view of the holders of the
outstanding shares of Voting Stock of the Corporation other than
any Related Person.
SECTION 2. For purposes of this Article XIII:
Clause 1. The term "Business Combination" shall mean:
(a) any merger, consolidation, or share exchange of the
Corporation or any of its subsidiaries into or with a Related
Person, in each case irrespective of which corporation or company
is the surviving entity in the merger or consolidation;
(b) any sale, lease, exchange, mortgage, pledge, transfer,
or other disposition to or with a Related Person (in a single
transaction or a series of related transactions) of all or a
Substantial Part (as hereinafter defined) of the assets of the
Corporation (including without limitation any securities of a
subsidiary) or a Substantial Part of the assets of any of its
subsidiaries;
(c) any sale, lease, exchange, mortgage, pledge, transfer,
or other disposition to or with the Corporation or to or with any
of its subsidiaries (in a single transaction or series of related
transactions) of all or a Substantial Part of the assets of a
Related Person;
(d) the issuance or transfer of any equity securities of the
Corporation or any of its subsidiaries by the Corporation or such
subsidiary (in a single transaction or a series of related
transactions) to a Related Person (other than an issuance or
transfer of securities which is effected on a pro rata basis to
all stockholders of the Corporation);
(e) the acquisition by the Corporation or any of its
subsidiaries of any equity securities of a Related Person;
(f) any reclassification of securities or recapitalization
that would have the effect of increasing the voting power of a
Related Person; or
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(g) any agreement, contract, or other arrangement providing
for any of the transactions described in this definition of
Business Combination.
Clause 2. The term "Related Person" shall mean any individual,
corporation, partnership, or other person or entity which, as of the
record date for the determination of stockholders entitled to notice of
and to vote on any Business Combination or, immediately prior to the
consummation of such transaction, together with their "Affiliates" and
"Associates" (as defined in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934 as in effect at
April 28, 1983, (collectively and as so in effect, the "Exchange Act")),
which after April 28, 1983, became and then are "Beneficial Owners" (as
defined in Rule 13d-3 of the Exchange Act) in the aggregate of 10% or
more of the outstanding shares of any class or series of Voting Stock of
the Corporation, and any Affiliate or Associate of any such individual,
corporation, partnership, or other person or entity.
Clause 3. The term "Substantial Part" shall mean more than 20% of
the fair market value, as determined by two-thirds of the Continuing
Directors, of the total consolidated assets of the Corporation and its
subsidiaries taken as a whole as of the end of its most recent fiscal
year ending prior to the time the determination is being made, subject
to adjustments made by the Continuing Directors to take into account
transactions made subsequent to year end.
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Clause 4. For the purposes of Clause 2(a) of Section 1 of this
Article XIII, the term "other consideration to be received" shall
include, without limitation, any shares of any class or series of
capital stock of the Corporation retained by stockholders of the
Corporation other than Related Persons or parties to such Business
Combination in the event of a Business Combination in which the
Corporation is the surviving corporation.
Clause 5. The term "Voting Stock" shall mean all outstanding
shares of capital stock of the Corporation or another corporation
entitled to vote generally in the election of directors, and each
reference to a proportion of shares of Voting Stock shall refer to such
proportion of the votes entitled to be cast by such shares.
Clause 6. The term "Continuing Director" shall mean a director
who either:
(a) was a member of the Board of Directors of the
Corporation immediately prior to the time that the Related Person
involved in a Business Combination became the Beneficial Owner of
10% of any class or series of Voting Stock of the Corporation; or
(b) was designated (before his or her initial election as
director) as a Continuing Director by a majority of the then
Continuing Directors.
Clause 7. A "Related Person" shall be deemed to have acquired a
share of the Voting Stock of the Corporation at the time when such
Related Person became the Beneficial Owner thereof. With respect to the
shares owned by Affiliates, Associates, or other persons whose ownership
is attributed to a Related Person under the foregoing definition of
Related Person, if the price paid by such Related Person for such shares
is not determinable by the Continuing Directors, the price so paid shall
be deemed to be the higher of:
(a) the price paid upon the acquisition thereof by the
Affiliate, Associate, or other person; or
(b) the market price of the shares in question at the time
when the Related Person became the Beneficial Owner thereof.
Clause 8. The terms "Highest Per Share Price" and "Highest
Equivalent Price" as used in this Article XIII shall mean the following.
If there is only one class of Voting Stock of the Corporation issued and
outstanding, the Highest Per Share Price shall mean the highest price
that can be determined to have been paid at any time after March 21,
1983, by the Related Person for any share or shares of that class of
Voting Stock. If there is more than one class of Voting Stock of the
Corporation issued and outstanding, the Highest Equivalent Price shall
mean, with respect to each class and series of Voting Stock of the
Corporation, the amount determined by two-thirds of the Continuing
Directors, on whatever basis they believe is appropriate, to be the
highest per share price equivalent to the highest price that can be
determined to have been paid at any time by the Related Person for any
share or shares of any class or series of Voting Stock of the
Corporation. In determining the Highest Per Share Price and Highest
Equivalent Price, all purchases after March 21, 1983, by the Related
Person shall be taken into account regardless of whether the shares were
purchased before or after the Related Person became a Related Person.
Also the Highest Per Share Price and the Highest Equivalent Price shall
include any brokerage commissions, transfer taxes, and soliciting
dealers' fees paid by the Related Person with respect to the shares of
Voting Stock of the Corporation acquired by the Related Person. In the
case of any Business Combination with a Related Person, the Highest
Equivalent Price for each class and series of the Voting Stock of the
Corporation shall be determined by the Continuing Directors.
SECTION 3. Any amendment, change, or repeal of this Article XIII, or
any other amendment of this
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Charter which will have the effect of modifying or permitting circumvention of
this Article XIII, shall require the favorable vote, at a meeting of the
stockholders of the Corporation, of the holders of at least (i) 80% of the
then outstanding shares of the Voting Stock of the Corporation and (ii) 67% of
the outstanding shares of Voting Stock of the Corporation held by stockholders
other than a Related Person; provided, however, that this Section 3 shall not
apply to and such vote shall not be required for any such amendment, change,
or repeal recommended to stockholders by the affirmative vote of not less than
two-thirds of the Continuing Directors and such amendment, change, or repeal
so recommended shall require only the vote, if any, required under the
applicable provision of the Charter. For the purposes of this Section 3 only,
if at the time when any such amendment, change, or repeal is under
consideration there is no proposed Business Combination (in which event, the
definition of Continuing Director in Clause 6 of Section 2 of this Article
XIII would be inapplicable), the "Continuing Directors" shall be deemed to be
those persons who are members of the Board of Directors of the Corporation at
April 28, 1983, plus those persons who are Continuing Directors under Clause
6(b) of Section 2 of this Article XIII.
ARTICLE XIV
REGULATION OF TRANSACTIONS INVOLVING
THE PURCHASE OF STOCK
AT A PREMIUM OVER MARKET
SECTION 1. Any purchase by the Corporation of shares of Voting Stock
(as hereinafter defined) from an Interested Stockholder (as hereinafter
defined) who has beneficially owned such securities for less than two years
prior to the date of such purchase or any agreement in respect thereof, other
than pursuant to an offer to the holders of all of the outstanding shares of
the same class as those so purchased, at a per share price in excess of the
Market Price (as hereinafter defined), at the time of such purchase, of the
shares so purchased, shall require the affirmative vote of the holders of a
majority of the voting power of the Voting Stock not beneficially owned by the
Interested Stockholder, voting together as a single class.
SECTION 2. In addition to any affirmative vote required by law or the
Charter:
Clause 1. Any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder
or (ii) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be,
an Affiliate (as hereinafter defined) of an Interested Stockholder;
Clause 2. Any sale, lease, exchange, mortgage, pledge, transfer,
or other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of $10,000,000 or
more;
Clause 3. The issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
equity securities of the Corporation or any Subsidiary having an
aggregate Fair Market Value of $10,000,000 or more to any Interested
Stockholder or any affiliate of any Interested Stockholder in exchange
for cash, securities, or other property (or combination thereof).
Clause 4. The adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf
of an Interested Stockholder or any Affiliate of any Interested
Stockholder; or
Clause 5. Any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its Subsidiaries,
or any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has
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the effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder.
shall require the affirmative vote of the holders of a majority of the voting
power of the Voting Stock not beneficially owned by any Interested
Stockholder, voting together as a single class; provided, however, that no
such vote shall be required for (i) the purchase by the Corporation of shares
of Voting Stock from an Interested Stockholder unless such vote is required by
Section 1 of this Article XIV, (ii) any transaction approved by a majority of
the Disinterested Directors (as hereinafter defined), (iii) any transaction
with an Interested Stockholder who shall also be a Related Person as defined
under Article XIII and to which the provisions of Article XIII apply, or (iv)
any transaction with an Interested Stockholder who has beneficially owned his
shares of Voting Stock for two years or more.
SECTION 3.
Clause 1. In the event that there shall exist a Substantial Stockholder
(as hereinafter defined) of the Corporation and such existence shall be known
or made known to the Corporation in advance of a meeting of stockholders at
which directors will be elected, each holder of Voting Stock shall be
entitled, in connection with any vote taken for such election of directors, to
as many votes as shall equal the number of votes which (except for this
provision as to cumulative voting) such stockholder would be entitled to cast
for the election of directors with respect to such stockholder's shares of
Voting Stock multiplied by the number of directors to be elected, and such
stockholder may cast all of such votes for a single director or may distribute
them among the number of directors to be voted for, or for any two or more of
them as such stockholder may see fit.
Clause 2. In connection with any election of directors in which
stockholders are entitled to cumulative voting, one or more candidates may be
nominated by a majority of the Disinterested Directors or by any person who is
the beneficial owner of shares of Voting Stock having an aggregate Market
Price of $250,000 or more.
Clause 3. The Corporation's proxy statement and other communications
with respect to such an election shall contain on an equal basis and at the
expense of the Corporation, descriptions and other statements of or with
respect to all nominees for election which qualify under the procedures set
forth in this Section 3.
SECTION 4. For the purpose of this Article XIV:
Clause 1. A "person" shall mean any individual, firm, corporation,
partnership, or other entity.
Clause 2. "Voting Stock" shall mean all outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors and each reference to a proportion of shares of Voting Stock shall
refer to such proportion of the votes entitled to be cast by such shares.
Clause 3. "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary or any employee benefit plan maintained by
the Corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of 5% or more
of the voting power of the outstanding Voting Stock;
(b) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date as of which a
determination is being made was the beneficial owner, directly or
indirectly, of 5% or more of the voting power of the then outstanding
Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date as of which a determination is being made
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beneficially owned by any person described in Clauses 3(a) or 3(b) of this
Section 4 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, as amended.
Clause 4. The term "Substantial Stockholder" shall mean any person
(other than the Corporation or any Subsidiary or any employee benefit plan
maintained by the Corporation or any Subsidiary) who or which is the
beneficial owner of Voting Stock representing 40% or more of the votes
entitled to be cast by the holders of all the outstanding shares of Voting
Stock.
Clause 5. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly;
(b) which such person or any of its Affiliates or Associates has
(i) 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 (ii) the
right to vote pursuant to any agreement, arrangement, or understanding;
or
(c) 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 shares of
Voting Stock.
Clause 6. For the purposes of determining whether a person is an
Interested Stockholder pursuant to Clause 3 of this Section 4 or a Substantial
Stockholder pursuant to Clause 4 of this Section 4, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned
through application of Clause 5 of this Section 4, but shall not include any
other shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement, or understanding, or upon exercise of conversion rights, warrants
or options, or otherwise.
Clause 7. "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 March
11, 1985.
Clause 8. "Subsidiary" shall mean any corporation of which a majority
of the voting stock thereof entitled to vote generally in the election of
directors is owned, directly or indirectly, by the Corporation.
Clause 9. "Market Price" shall mean: the last closing sale price
immediately preceding the time in question of a share of the stock in question
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,
Inc., 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 last closing bid quotation with respect to a share of such stock
immediately preceding the time in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in
use (or any other system of reporting or ascertaining quotations then
available), or if such stock is not so quoted, the Fair Market Value at the
time in question of a share of such stock as determined by the Board of
Directors in good faith.
Clause 10. "Fair Market Value" shall mean:
(a) in the case of stock, the Market Price, and
(b) in the case of property other than cash or stock, the fair
market value of such property on the
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date in question as determined by the Board of Directors in good faith.
Clause 11. "Disinterested Director" shall mean any member of the Board
of Directors of the Corporation who is unaffiliated with an Interested
Stockholder and was a member of the Board of Directors prior to the time that
the Interested Stockholder became an Interested Stockholder, and any successor
of Disinterested Director who is unaffiliated with an Interested Stockholder
as is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board of Directors.
SECTION 5. A majority of the Disinterested Directors shall have the
power and duty to determine for the purposes of this Article XIV, on the basis
of information known to them after reasonable inquiry, whether (i) a person is
an Interested Stockholder, (ii) a person is a Substantial Stockholder, or
(iii) a transaction or series of transactions constitutes one of the
transactions described in Section 2 of this Article XIV.
SECTION 6. Notwithstanding any other provisions of the Charter (and
notwithstanding the fact that a lesser percentage may be specified by law, the
Charter, or the By-Laws of the Corporation), the affirmative vote of the
holders of at least 80% of the outstanding Voting Stock, voting together as a
single class, shall be required to amend, repeal, or adopt any provisions
inconsistent with this Article XIV.
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CERTIFICATE AS TO CHARTER
I, Secretary of MARTIN MARIETTA CORPORATION hereby
certify that the foregoing is a true, correct and complete copy of the Charter
of MARTIN MARIETTA CORPORATION and that such Charter is in full force and
effect as of the date of this certificate.
WITNESS my hand and the seal of MARTIN MARIETTA CORPORATION, this
day of , 19 .
___________________________________________
Secretary
CORPORATE SEAL