RESTATED
CERTIFICATE OF INCORPORATION
OF
PROMUS HOTEL CORPORATION
The present name of the Corporation is Promus Hotel Corporation. The
Corporation was incorporated under the name "Parent Holding Corp." by the
filing of its original Certificate of Incorporation with the Secretary of
State of the State of Delaware on August 29, 1997. This Restated Certificate
of Incorporation of the Corporation, which both restates and further amends
the provisions of the Corporation's Certificate of Incorporation, was duly
adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware and by the written consent
of stockholders in accordance with Section 228 of the General Corporation Law
of the State of Delaware. The Certificate of Incorporation of the
Corporation is hereby amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation is Promus Hotel Corporation.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Service Company, 1013 Centre Road, in the
City of Wilmington, County of New Castle, State of Delaware. The name of its
registered agent at that address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of Delaware as set forth in Title 8 of the Delaware Code (the
"GCL").
FOURTH: A. The total number of shares of stock which the Corporation
shall have authority to issue is 510,000,000 (the "Capital Stock") consisting
of 500,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock"), and 10,000,000 shares of Preferred Stock, par value of $.01 per
share (the "Preferred Stock").
B. Shares of Preferred Stock may be issued from time to time in one or
more series, as provided for herein or as provided for by the Board of
Directors as permitted hereby. All shares of Preferred Stock shall be of
equal rank and shall be identical, except in respect of the terms fixed
herein for the series provided for herein or fixed by the Board of Directors
for series provided for by the Board of Directors as permitted hereby. All
shares of any one series shall be identical in all respects with all the
other shares of such series, except the shares of any one series issued at
different times may differ as to the dates from which dividends thereon may
be cumulative.
The Board of Directors is hereby authorized, by resolution or
resolutions, to establish, out of the unissued shares of Preferred Stock not
then allocated to any series of Preferred Stock, additional series of
Preferred Stock. Before any shares of any such additional series are issued,
the Board of Directors shall fix and determine, and is hereby expressly
empowered to fix and determine, by resolution or resolutions, the number of
shares constituting such series and the distinguishing characteristics and
the relative rights, preferences, privileges and immunities, if
any, and any qualifications, limitations or restrictions thereof, of the
shares thereof, so far as not inconsistent with the provisions of this
Article FOURTH. Without limiting the generality of the foregoing, the Board
of Directors may fix and determine:
1. The designation of such series and the number of shares which
shall constitute such series of such shares;
2. The rate of dividend, if any, payable on shares of such series;
3. Whether the shares of such series shall be cumulative,
non-cumulative or partially cumulative as to dividends, and the dates
from which any cumulative dividends are to accumulate;
4. Whether the shares of such series may be redeemed, and, if so,
the price or prices at which and the terms and conditions on which
shares of such series may be redeemed;
5. The amount payable upon shares of such series in the event of
the voluntary or involuntary dissolution, liquidation or winding up of
the affairs of the Corporation;
6. The sinking fund provisions, if any, for the redemption of
shares of such series;
7. The voting rights, if any, of the shares of such series;
8. The terms and conditions, if any, on which shares of such
series may be converted into shares of capital stock of the Corporation
of any other class or series;
9. Whether the shares of such series are to be preferred over
shares of capital stock of the Corporation of any other class or series
as to dividends, or upon the voluntary or involuntary dissolution,
liquidation, or winding up of the affairs of the Corporation, or
otherwise; and
10. Any other characteristics, preferences, limitations, rights,
privileges, immunities or terms not inconsistent with the provisions of
this Article FOURTH.
C. Except as otherwise provided in this Restated Certificate of
Incorporation, each holder of Common Stock shall be entitled to one vote for
each share of Common Stock held by him on all matters submitted to
stockholders for a vote and each holder of Preferred Stock of any series that
is Voting Stock shall be entitled to such number of votes for each share held
by him as may be specified in the resolutions providing for the issuance of
such series.
Except as otherwise provided by law, the presence, in person or by
proxy, of the holders of record of issued and outstanding shares of Capital
Stock entitling the holders thereof to cast a majority of the votes entitled
to be cast by the holders of issued and outstanding shares of Capital Stock
entitled to vote shall constitute a quorum at all meetings of the
stockholders.
2
FIFTH: A. The Board of Directors shall have the power to make, adopt,
alter, amend, change or repeal the Bylaws of the Corporation by resolution
adopted by the affirmative vote of a majority of the entire Board of
Directors, subject to any bylaw requiring the affirmative vote of a larger
percentage of the members of the Board of Directors.
B. Stockholders may not make, adopt, alter, amend, change or repeal the
Bylaws of the Corporation except upon the affirmative vote of at least 75% of
the votes entitled to be cast by the holders of all outstanding shares then
entitled to vote generally in the election of directors, voting together as a
single class.
SIXTH: The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors, which shall consist of not
less than three or more than twenty directors, the exact number of directors
to be determined from time to time by resolution adopted by affirmative vote
of a majority of the entire Board of Directors, subject to any bylaw
requiring the affirmative vote of a larger percentage of the members of the
Board of Directors. The Board of Directors shall be divided into three
classes, designated Class I, Class II and Class III. Class I shall consist
of four directors, and each of Class II and Class III shall consist of five
directors. Class I directors shall be initially elected for a term expiring
at the first annual meeting of stockholders of the Corporation following the
date hereof, Class II directors shall be initially elected for a term
expiring at the second annual meeting of stockholders of the Corporation
following the date hereof, and Class III directors shall be initially elected
for a term expiring at the third annual meeting of stockholders of the
Corporation following the date hereof. At each succeeding annual meeting of
stockholders, beginning in 1999, successors to the class of directors whose
term expires at that annual meeting shall be elected for a three year term.
If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of
that class, but in no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office until the
annual meeting for the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, prior to death,
resignation, retirement, disqualification or removal from office. Any
vacancy on the Board of Directors that results from an increase in the number
of directors and any other vacancy may only be filled by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same remaining term as
that of his predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
series of Preferred Stock issued by the Corporation shall have the right,
voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, removal,
filling of vacancies and other features of such directorships shall be
governed by the terms of this Restated Certificate of Incorporation
applicable thereto (including the resolutions of the Board of Directors
pursuant to Article FOURTH hereof), and such Directors so elected shall not
be divided into classes pursuant to this Article SIXTH unless expressly
provided by such terms.
3
SEVENTH: Special meetings of the stockholders of the Corporation, for
any purpose or purposes, may only be called at any time by a majority of the
entire Board of Directors or by either the Chairman or the President of the
Corporation.
EIGHTH: No stockholder action may be taken except at an annual or
special meeting of stockholders of the Corporation and stockholders of the
corporation may not take any action by written consent in lieu of a meeting.
NINTH: A. In addition to any affirmative vote required by law or this
Restated Certificate of Incorporation (including any resolutions of the Board
of Directors pursuant to Article FOURTH hereof) or the Bylaws of the
Corporation, and except as otherwise expressly provided in Section B of this
Article NINTH, a Business Combination (as hereinafter defined) with, or
proposed by or on behalf of, any Interested Stockholder (as hereinafter
defined) or any Affiliate or Associate (as hereinafter defined) of any
Interested Stockholder or any person who thereafter would be an Affiliate or
Associate of such Interested Stockholder shall, except as otherwise
prohibited by applicable law, require the affirmative vote of (i) not less
than 75% of the votes entitled to be cast by the holders of all of the then
outstanding shares of Voting Stock (as hereinafter defined), voting together
as a single class and (ii) not less than a majority of the votes entitled to
be cast by holders of all the then outstanding Voting Stock, voting together
as a single class, excluding Voting Stock beneficially owned by such
Interested Stockholder. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage or separate class vote may be specified, by law or in any
agreement with any national securities exchange or otherwise.
B. The provisions of Section A of this Article NINTH shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required
by law or by any other provision of this Restated Certification of
Incorporation (including any resolutions of the Board of Directors pursuant
to Article FOURTH hereof) or the Bylaws of the Corporation, or any agreement
with any national securities exchange, if all the conditions specified in
either of the following Paragraphs 1 or 2 are met or, in the case of Business
Combination not involving the payment of consideration to the holders of the
Corporation's outstanding Capital Stock (as hereinafter defined), if the
condition specified in the following Paragraph 1 is met:
1. The Business Combination shall have been approved, either
specifically or as a transaction which is in an approved category of
transactions, by a majority (whether such approval is made prior to or
subsequent to the acquisition of, or announcement or public disclosure
of the intention to acquire, beneficial ownership of the Voting Stock
that caused the Interested Stockholder to become an Interested
Stockholder) of the Continuing Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
a. The aggregate amount of cash and the Fair Market Value (as
hereinafter defined), as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders
4
of Common Stock in such Business Combination shall be at least
equal to the highest amount determined under clauses (i) and (ii)
below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of Common Stock in connection with
the acquisition by the Interested Stockholder of beneficial
ownership of shares of Common Stock within the two-year period
immediately prior to the first public announcement of the
proposed Business Combination (the "Announcement Date") or (y)
in the transaction in which it became an Interested
Stockholder, whichever is higher, in either case as adjusted
for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to common stock; and
(ii) the Fair Market Value per share of Common Stock on
the Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder.
b. The aggregate amount of cash and the Fair Market Value, as
of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders
of shares of each class or series of outstanding Capital Stock,
other than Common Stock, shall be at least equal to the highest
amount determined under clauses (i), (ii) and (iii) below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of such class or series of Capital
Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of such class or
series of Capital Stock (x) within the two-year period
immediately prior to the Announcement Date or (y) in the
transaction in which it became an Interested Stockholder,
whichever is higher, in either case as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of
Capital Stock;
(ii) the Fair Market Value per share of such class or
series of Capital Stock on the Announcement Date or on the
Determination Date, whichever is higher, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of
Capital Stock; and
(iii) (if applicable) the highest preferential amount per
share to which the holders of shares of such class or series of
Capital Stock would be entitled in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation regardless of
5
whether the Business Combination to be consummated constitutes
such an event.
The provisions of this Paragraph 2(b) shall be required to be
met with respect to every class or series of outstanding Capital
Stock, whether or not the Interested Stockholder has previously
acquired beneficial ownership of any shares of a particular
class or series of Capital Stock.
c. The consideration to be received by holders of a particular
class or series of outstanding Capital Stock shall be in cash or in
the same form as previously has been paid by or on behalf of the
Interested Stockholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class or
series of Capital Stock. If the consideration so paid for shares
of any class or series of Capital Stock varied as to form, the form
of consideration for such class or series of Capital Stock shall be
either cash or the form used to acquire beneficial ownership of the
largest number of shares of such class or series of Capital Stock
previously acquired by the Interested Stockholder.
d. After the Determination Date and prior to the consummation
of such Business Combination: (i) except as approved by a majority
of the Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefor any full periodic
dividends (whether or not cumulative) payable in accordance with
the terms of any outstanding Capital Stock; (ii) there shall have
been no reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Stock), except as approved by
a majority of the Continuing Directors; (iii) there shall have been
an increase in the annual rate of dividends paid on the Common
Stock as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any
similar transaction that has the effect of reducing the number of
outstanding shares of Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the
Continuing Directors; and (iv) such Interested Stockholders shall
not have become the beneficial owner of any additional shares of
Capital Stock except as part of the transaction that results in
such Interested Stockholder becoming an Interested Stockholder and
except in a transaction that, after giving effect thereto, would
not result in any increase in the Interested Stockholder's
percentage beneficial ownership of any class or series of Capital
Stock.
e. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Act") (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all stockholders of
the Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or
subsequent provisions). The
6
proxy or information statement shall contain on the first page
thereof, in a prominent place, such statement, if any, as to the
advisability (or inadvisability) of the Business Combination that
the Continuing Directors, or any of them, may choose to make and,
if deemed advisable by a majority of the Continuing Directors, the
opinion of an investment banking firm selected by a majority of the
Continuing Directors as to the fairness (or not) of the terms of
the Business Combination from a financial point of view to the
holders of the outstanding shares of Capital Stock other than the
Interested Stockholder and its Affiliates or Associates, such
investment banking firm to be paid a reasonable fee for its
services by the Corporation.
f. Such Interested Stockholder shall not have made any major
change in the Corporation's business or equity capital structure
without the approval of a majority of the Continuing Directors.
g. After the Determination Date, such Interested Stockholder
shall not have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise.
C. The following definitions shall apply with respect to this article
NINTH:
1. The term "Business Combination" shall mean:
a. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder or (ii) any other company (whether or not itself an
Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Stockholder; or
b. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase or sell, agreement to
pay, extension of credit, joint venture participation or other
arrangement (in one transaction or a series of transactions) with
or for the benefit of any Interested Stockholder or any Affiliate
or Associate of any Interested Stockholder involving any assets,
securities or commitments of the Corporation, any Subsidiary or any
Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder which (except for any arrangement, whether
as employee or consultant or otherwise, other than as director,
pursuant to which any Interested Stockholder or any Affiliate or
Associate thereof shall, directly or indirectly, have any control
over or responsibility for the management of any aspect of the
business or affairs of the Corporation, with respect to which
7
arrangement the value test set forth below shall not apply),
together with all other such arrangements (including all
contemplated future events), has an aggregate Fair Market Value
and/or involves aggregate commitments of $100,000,000 or more or
constitutes more than 5 percent of the book value of the total
assets (in the case of transactions involving assets or commitments
other than capital stock) or 5 percent of the stockholders' equity
(in the case of transactions in capital stock) of the entity in
question (the "Substantial Part"), as reflected in the most recent
fiscal year-end consolidated balance sheet of such entity existing
at the time the stockholders of the Corporation would be required
to approve or authorize the Business Combination involving the
assets, securities and/or commitments constituting any Substantial
Part; provided, that if stockholders' equity is negative, the fair
market value of the outstanding Capital Stock at the date of such
balance sheet shall be used in lieu thereof in determining if a
transaction involves a Substantial Part; or
c. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation or for any amendment to the
Corporation's Bylaws; or
d. 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 otherwise involving
an Interested Stockholder) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or
series of Capital Stock, or any securities convertible into Capital
Stock or into equity securities of any Subsidiary, that is
beneficially owned by any Interested Stockholder or any affiliate
or Associate of any Interested Stockholder; or
e. any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing clauses
(a) to (d).
2. The term "Voting Stock" shall mean all Capital Stock which by
its terms may be voted on all matters submitted to stockholders of the
Corporation generally.
3. The term "person" shall mean any individual, firm, company or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing
of Capital Stock.
4. The term "Interested Stockholder" shall mean any person (other
than (i) the Corporation or any Subsidiary, any profit-sharing, employee
stock ownership or other employee benefit plan of the Corporation or any
Subsidiary or any trustee of or fiduciary with respect to any such plan
when acting in such capacity and (ii) Doubletree Corporation, Promus
Hotel Corporation and any Subsidiary thereof) who (a) is, or has
announced or publicly disclosed a plan or intention to become, the
beneficial owner of
8
Voting Stock representing ten percent or more of the votes entitled to
be cast by the holders of all the then outstanding shares of Voting
Stock; or (b) is an Affiliate or Associate of the Corporation and at any
time within the two-year period immediately prior to the date in
question was the beneficial owner of Voting Stock representing ten
percent or more of the votes entitled to be cast by the holders of all
the then outstanding shares of Voting Stock; or (c) is an assignee of or
has otherwise succeeded to any Voting Stock which was at any time within
the two-year period immediately prior to the date in question
beneficially owned by an Interested Stockholder, if such assignment or
succession shall have occurred in the course of a transaction or series
of transactions not involving a public offering within the meaning of
the Securities Act of 1933, as amended.
5. A person shall be a "beneficial owner" of any Capital Stock (a)
which such person or any of its Affiliates or Associates beneficially
owns, directly or indirectly; (b) which such person or any of its
Affiliates or Associates has, directly or indirectly, (i) the right to
acquire (whether such right is exercisable immediately or subject only
to 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 (but neither
such person nor any such Affiliate or Associate shall be deemed to be
the beneficial owner of any shares of Voting Stock solely by reason of a
revocable proxy granted for a particular meeting of stockholders,
pursuant to a public solicitation of proxies for such meeting, and with
respect to which shares neither such person nor any such Affiliate or
Associate is otherwise deemed the beneficial owner); or (c) which is
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 (except to the extent contemplated by the parenthetical
clause in Section C.5(b)(ii)) or disposing of any shares of Capital
Stock; provided that: (x) no director or officer of the Corporation
(nor any Affiliate or Associate of any such director or officer) shall,
solely by reason of any or all of such directors or officers acting in
their capacities as such, be deemed the "beneficial owner" of any shares
of Capital Stock that are beneficially owned by any other such director
or officer; (y) in the case of any employee stock ownership or similar
plan of the Corporation or of any Subsidiary in which the beneficiaries
thereof possess the right to vote the shares of Voting Stock held by
such plan, no such plan nor any trustee with respect thereto (nor any
Affiliate or Associate of such trustee), solely by reason of such
capacity of such trustee, shall be deemed the "beneficial owner" of the
shares of Voting Stock held under such plan; and (z) no person shall be
deemed the "beneficial owner" of any shares of Voting Stock held in any
voting trust, employee stock ownership plan or any similar plan or trust
if such person does not possess the right to vote such shares. For the
purposes of determining whether a person is an Interested Stockholder
pursuant to Paragraph 4 of this section C, the number of shares of
Capital Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through application of this Paragraph
5 of Section C, but shall not include any other shares of Capital Stock
that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise. Notwithstanding the foregoing, for purposes of
9
this Article NINTH, a person shall not be deemed a "beneficial owner" of
any Capital Stock which such person has the right to acquire upon
exercise of the Rights issued pursuant to the Parent Rights Agreement,
dated as of , 1997, between the Corporation and (including
any successor rights plan thereto, the "Rights Agreement"), if such person
would not be deemed the beneficial owner of such Capital Stock under the
terms of such Rights Agreement.
6. The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Act as in effect
on the date that this Article NINTH is approved by the Board (the term
"registrant" in said Rule 12b-2 meaning in this case the Corporation).
7. The term "Subsidiary" means any company of which a majority of
any class of equity security is beneficially owned by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph 4 of this Section C, the term
"Subsidiary" shall mean only a company of which a majority of each class
of equity security is beneficially owned by the Corporation.
8. The term "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board of Directors"), while such
person is a member of the Board of Directors, who is not an Affiliate or
Associate or representative of the 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 director who is
thereafter chosen to fill any vacancy or newly-created directorship on
the Board of Directors or who is elected and who, in either event, is
not an Affiliate or Associate or representative of the Interested
Stockholder and, in connection with such person's initial assumption of
office, is recommended for appointment or election by a majority of the
Continuing Directors then on the Board.
9. The term "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock the highest closing sales
price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York
Stock Exchange--Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States securities
exchange registered under the Act on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest closing sales
price or bid quotation with respect to a share of such stock during the
30-day period preceding the date in question on the NASDAQ National
Market or any similar system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of
such stock as determined by a majority of the Continuing Directors in
good faith; and (c) in the case of property other than cash or stock,
the fair market value of such property on the date in question as
determined in good faith by a majority of the Continuing Directors.
10
10. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in Paragraphs 2.a and 2.b of Section B of this Article
NINTH shall include the shares of Common Stock and/or the shares of any
other class or series of Capital Stock retained by the holders of such
shares.
D. A majority of the Continuing Directors shall have the power and duty
to determine for the purposes of this Article NINTH, on the basis of
information known to them after reasonable inquiry, all questions arising
under this Article NINTH including, without limitation, (a) whether a person
is an Interested Stockholder, (b) the number of shares of Capital Stock or
other securities beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether a Proposed Action (as
hereinafter defined) is with, or proposed by, or on behalf of, an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder, (e)
whether the assets that are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities
by the Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $100,000,000 or more, (f) whether the assets
or securities that are the subject of any Business Combination constitute a
Substantial Part, and (g) whether the applicable conditions set forth in
paragraph 2 of Section B of this Article NINTH have been met with respect to
any Business Combination. Any such determination made good faith shall be
binding and conclusive on all parties.
E. Nothing contained in this Article NINTH shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
F. The fact that any Business combination complies with the provisions
of Section B of this Article NINTH shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or
any member thereof, to approve such Business Combination or recommend its
adoption or approval to the stockholders of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the Board of
Directors, or any member thereof, with respect to evaluations of or actions
and responses taken with respect to such Business Combination.
G. For the purpose of this Article NINTH, a Business Combination or any
proposal to amend, repeal or adopt any provision of this Restated Certificate
of Incorporation inconsistent with this Article NINTH (collectively,
"Proposed Action") is presumed to have been proposed by, or on behalf of, an
Interested Stockholder or a person who thereafter would become such if (1)
after the Interested Stockholder became such, the Proposed Action is proposed
following the election of any director of the Corporation who with respect to
such Interested Stockholder, would not qualify to serve as a Continuing
Director or (2) such Interested Stockholder, Affiliate, Associate or person
votes for or consents to the adoption of any such Proposed Action, unless as
to such Interested Stockholder, Affiliate, Associate or person, a majority of
the Continuing Directors makes a good faith determination that such Proposed
Action is not proposed by or on behalf of such Interested Stockholder,
Affiliate, Associate or person, based on information known to them after
reasonable inquiry.
11
H. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Restated Certificate of Incorporation or the Bylaws of the Corporation), or
any proposal to amend, repeal or adopt any provision of this Restated
Certificate of Incorporation inconsistent with this Article NINTH which is
proposed by or on behalf of an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder shall require the affirmative vote of
(i) the holders of not less than 75% of the votes entitled to be cast by the
holders of all the then outstanding shares of Voting Stock, voting together
as a single class, and (ii) the holders of not less than a majority of the
votes entitled to be cast by the holders of the then outstanding shares of
Voting Stock, voting together as a single class, excluding Voting Stock
beneficially owned by such Interested Stockholder, provided, however, that
this Section H shall not apply to, and such vote shall not be required for,
any amendment, repeal or adoption unanimously recommended by the Board of
Directors if all of such directors are persons who would be eligible to serve
as Continuing Directors within the meaning of Section C, Paragraph 8 of this
Article NINTH.
TENTH: A. Subject to Section C of this Article TENTH, the Corporation
shall indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interest of the Corporation, or, with respect to any criminal action or
proceeding, had reasonable cause to believe his conduct was unlawful.
B. Subject to Section C of this Article TENTH, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interest of the Corporation; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon
12
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
C. Any indemnification under this Article TENTH (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section A or Section B of this
Article TENTH, as the case may be. Such determination shall be made (i) by a
majority vote of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described in Section A or Section B of this
Article TENTH, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case.
D. For purposes of any determination under Section C of this Article
TENTH, a person shall be deemed to have acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section D of
Article TENTH shall mean any other corporation or any partnership, joint
venture, trust or other enterprise of which such person is or was serving at
the request of the Corporation as a director, officer, employee or agent.
The provisions of this Section D shall not be deemed to be exclusive or to
limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Sections A or B of this
Article TENTH as the case may be.
E. Notwithstanding any contrary determination in the specific case under
Section C of this Article TENTH, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the
extent otherwise permissible under Sections A and B of this Article TENTH.
The basis of such indemnification by a court shall be a determination by such
court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set
forth in Sections A or B of this Article TENTH, as the case may be. Notice
of any application for indemnification pursuant to this Section E of Article
TENTH shall be given to the Corporation promptly upon the filing of such
application.
13
F. Expenses incurred in defending or investigating a threatened or
pending action, suit or proceeding may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article TENTH.
G. The indemnification and advancement of expenses provided by this
Article TENTH shall not be deemed exclusive of any other rights to which any
person seeking indemnification or advancement of expenses may be entitled
under any Bylaw, agreement, contract, vote of stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of, and advancement
of expenses to, the persons specified in Sections A and B of this Article
TENTH shall be made to the fullest extent permitted by law. The provisions
of this Article TENTH shall not be deemed to preclude the indemnification of,
and advancement of expenses to, any person who is not specified in Sections A
or B of this Article TENTH but whom the Corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law
of the State of Delaware, or otherwise. The indemnification provided by this
Article TENTH shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
H. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or, while a
director or officer of the Corporation, is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the Corporation would
have the power or the obligation to indemnify him against such liability
under the provisions of this Article TENTH.
I. For purposes of this Article TENTH, reference to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors or officers, so that
any person who is or was a director or officer of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the
same position under the provisions of this Article TENTH with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
ELEVENTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for this
14
Corporation under the provisions of Section 291 of the GCL or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of the
GCL, order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and
to any reorganization of this Corporation as a consequence of such compromise
or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on this Corporation.
TWELFTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Restated Certificate of Incorporation,
in the manner now or thereafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this reservation.
THIRTEENTH: No director of this Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law, (iii) under Section 174 of the GCL, or
(iv) for any transaction from which the director derived an improper personal
benefit. If the GCL is hereafter amended to authorize corporate action
further limiting or eliminating the personal liability of directors, then the
liability of each director of the Corporations shall be limited or eliminated
to the fullest extent permitted by the GCL as so amended from time to time.
15
IN WITNESS WHEREOF, said corporation has caused this Certificate to be
signed by Raymond E. Schultz, its Chief Executive Officer and attested by
Ralph B. Lake, its Secretary, this __ day of _________, 1997.
By:
________________________
Raymond E. Schultz
Chief Executive Officer
ATTEST:
________________________
Ralph B. Lake
Secretary
16