EXHIBIT 3.5
RESTATED CERTIFICATE OF INCORPORATION
OF
QUALCOMM INCORPORATED
QUALCOMM Incorporated, a corporation organized and existing under the
General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: The Certificate of Incorporation of QUALCOMM, Inc. was filed
with the Secretary of State of the State of Delaware on August 15, 1991. A
Restated Certificate of Incorporation was filed on September 10, 1991 changing
the name of the corporation to QUALCOMM Incorporated.
SECOND: The Restated Certificate of Incorporation of QUALCOMM
Incorporated, in the form attached hereto as Exhibit A, has been duly adopted in
accordance with the provisions of Section 242 and 245 of the General Corporation
Law of the State of Delaware.
THIRD: The Restated Certificate of Incorporation so adopted reads in
full as set forth on Exhibit A attached hereto and hereby incorporated by
reference.
IN WITNESS WHEREOF, QUALCOMM Incorporated has caused this certificate
to be signed by the Chairman of the Board of Directors this 22nd day of March,
1993.
QUALCOMM Incorporated
By: /s/ Irwin Mark Jacobs
----------------------------------
Irwin M. Jacobs
Chairman of the Board of Directors
ATTEST:
/s/Adelia A. Coffman
- --------------------
Adelia A. Coffman
Assistant Secretary
EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
QUALCOMM INCORPORATED
I.
The name of this corporation is QUALCOMM Incorporated.
II.
The address of the registered office of the corporation in the State of
Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of Kent,
and the name of the registered agent of the corporation in the State of Delaware
as such address is The Prentice-Hall Corporation System, Inc.
III.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
IV.
This corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares which the corporation is authorized to issue is fifty-eight million
(58,000,000) shares. Fifty million (50,000,000) shares shall be Common Stock,
each having a par value of one-one hundredth of one cent ($0.0001). Eight
million (8,000,000) shares shall be Preferred Stock, each having a par value of
one-one hundredth of one cent ($0.0001).
V.
The relative rights, preferences, privileges and restrictions granted
to or imposed upon the respective classes and series of shares are as follows:
A. COMMON STOCK.
The voting, dividend and liquidation rights of the Common
Stock are subject to and qualified by the rights of the holders of the Preferred
Stock of any series as designated herein and as may be designated by the Board
of Directors of the corporation upon any issuance of the Preferred Stock of any
series.
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B. PREFERRED STOCK.
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized, by filing a
certificate pursuant to the Delaware General Corporation Law, to fix or alter
from time to time the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof,
including without limitation the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and the liquidation preferences of any
wholly unissued series of Preferred Stock, and to establish from time to time
the number of shares constituting any such series and the designation thereof,
or any of them (a "Preferred Stock Designation"); and to increase or decrease
the number of shares of any series subsequent to the issuance of shares of that
series, but not below the number of shares of such series then outstanding. In
case the number of shares of any series shall be decreased in accordance with
the foregoing sentence, the shares constituting such decrease shall resume the
status that they had prior to the adoption of the resolution originally fixing
the number of shares of such series.
VI.
For the management of the business and for the conduct of the affairs
of the corporation, and in further definition, limitation and regulation of the
powers of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
A. The management of the business and the conduct of the affairs
of the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed
exclusively by one or more resolutions adopted from time to time by the Board of
Directors. Every stockholder entitled to vote in any election of directors of
this corporation may cumulate such stockholder's votes and give one candidate a
number of votes equal to the number of directors to be elected multiplied by the
number of votes to which the stockholder's shares are otherwise entitled, or
distribute the stockholder's votes on the same principle among as many
candidates as such stockholder thinks fit. The candidates receiving the highest
number of votes of the shares entitled to be voted for them up to the number of
directors to be elected by such shares shall be declared elected.
The Board of Directors shall be divided into three classes designated
as Class I, Class II and Class III, respectively. Directors shall be assigned to
each class in accordance with a resolution or resolutions adopted by the Board
of Directors. At the first annual meeting of stockholders following September
11, 1991 (the "Initial Election Date"), the term of office of the Class I
directors shall expire and Class I directors shall be elected for a full term of
three years. At the second annual meeting of stockholders following the Initial
Election Date, the term of office of the Class II directors shall expire and
Class II directors shall be elected for a full term of three years. At the third
annual meeting of stockholders following the Initial Election Date, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
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Notwithstanding the foregoing provisions of this Article, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other causes shall be filled by either
(i) the affirmative vote of the holders of a majority of the voting power of the
then-outstanding shares of voting stock of the corporation entitled to vote
generally in the election of directors (the "Voting Stock") voting together as a
single class; or (ii) by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Newly created directorships resulting from any increase in the number
of directors shall, unless the Board of Directors determines by resolution that
any such newly created directorship shall be filled by the stockholders, be
filled only by the affirmative vote of the directors then in office, even though
less than a quorum of the Board of Directors. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been elected and
qualified.
B. The Bylaws may be altered or amended or new Bylaws adopted by
the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of
the `voting power of all of the then-outstanding shares of the Voting Stock. In
furtherance and not in limitation of the power conferred by statute, the Board
of Directors is expressly authorized to adopt, amend, supplement or repeal the
Bylaws.
C. The directors of the corporation need not be elected by
written ballot unless the Bylaws so provide.
D. Following the closing of the initial public offering pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), covering the offer and sale of Common Stock to the
public (the "Initial Public Offering"), no action shall be taken by the
stockholders of the corporation except at an annual or special meeting of
stockholders called in accordance with the Bylaws and no action shall be taken
by the stockholders by written consent.
E. Advance notice of stockholder nominations for the election of
directors and of business to be brought by stockholders before any meeting of
the stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
F. Any director, or the entire Board of Directors, may be removed
from office at any time (i) with cause by the affirmative vote of the holders of
at least a majority of the voting power of all of the then-outstanding shares of
the Voting Stock, voting together as a single class; or (ii) without cause by
the affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then-outstanding shares of the
Voting Stock. So long as shareholders may cumulate their votes in the election
of directors, if less than the entire Board of Directors is to be removed, no
director may be removed without cause if the votes cast against his removal
would be sufficient to elect him if then cumulatively voted at an
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election of the entire Board of Directors, or, if there be classes of directors,
at an election of the class of directors of which he is a part. Furthermore, if
the holders of any class or series of capital stock are entitled to elect one
(1) or more directors by this certificate of incorporation, as amended from time
to time, the removal of such directors without cause shall be by a vote of the
outstanding shares of that series or class of capital stock and not the
outstanding shares of capital stock as a whole.
VII.
A director of the corporation shall, to the full extent not prohibited
by the General Corporation Law of the State of Delaware, as the same exists or
may hereafter be amended, not be liable to the corporation or its stockholders
for monetary damages for breach of his or her fiduciary duty as a director.
VIII.
A. (1) Following the closing of the Initial Public Offering,
in addition to any affirmative vote required by law, by this Certificate of
Incorporation or by any Preferred Stock Designation, and except as otherwise
expressly provided in Section B of this Article VIII:
(i) any merger or consolidation of the
corporation or any Subsidiary (as hereinafter defined) with (a) any
Interested Stockholder (as hereinafter defined) or (b) 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; or
(ii) 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) equal to or greater than 15% of the Corporation's assets as
set forth on the Corporation's most recent audited consolidated
financial statements; or
(iii) the issuance or transfer by the corporation
or any Subsidiary (in one transaction or a series of transactions) of
any securities of the corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value equal to or greater than 15% of
the Corporation's assets as set forth on the Corporation's most recent
audited consolidated financial statements; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on behalf
of any Interested Stockholder or any Affiliate of any Interested
Stockholder; or
(v) 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 any Interested Stockholder) which has the
effect, directly or
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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 Beneficially Owned (as
hereinafter defined) by any Interested Stockholder or any Affiliate of
any Interested Stockholder;
shall require the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of voting power of all of the then-outstanding
shares of the Voting Stock, voting together as a single class. Such affirmative
vote shall be required notwithstanding any other provisions of this Certificate
of Incorporation or any provision of law or of any agreement with any national
securities exchange or otherwise which might otherwise permit a lesser vote or
no vote.
(2) The term "Business Combination" as used in this
Article VIII shall mean any transaction which is referred to in any one or more
of subparagraphs (i) through (v) of paragraph (1) of this Section A.
B. The provisions of Section A of this Article VIII shall not be
applicable to any particular Business Combination, and such business Combination
shall require only such affirmative vote as is required by law, any other
provision of this Certificate of Incorporation and any Preferred Stock
Designation, if, in the case of a Business Combination that does not involve any
cash or other consideration being received by the stockholders of the
corporation, solely in their respective capacities as stockholders of the
corporation, the condition specified in the following paragraph (1) is met, or,
in the case of any other Business Combination, the conditions specified in
either of the following paragraph (1) or paragraph (2) are met:
(1) The Business Combination shall have been approved by
a majority of the Continuing Directors (as hereinafter defined); provided
however, that this condition shall not be capable of satisfaction unless there
are at least two Continuing Directors.
(2) All of the following conditions shall have been met:
(i) The consideration to be received by holders
of shares of a particular class (or series) of outstanding Voting Stock
(including Common Stock and other than Excluded Preferred Stock (as
hereinafter defined)) shall be in cash or in the same form as the
Interested Stockholder or any of its Affiliates has previously paid for
shares of such class (or series) of Voting Stock. If the Interested
Stockholder or any of its Affiliates have paid for shares of any class
(or series) of Voting Stock with varying forms of consideration, the
form of consideration to be received per share by holders of shares of
such class (or series) of Voting Stock shall be either cash or the form
used to acquire the largest number of shares of such class (or series)
of Voting Stock previously acquired by the Interested Stockholder.
(ii) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the date (the "Consummation Date") of the
consummation of the Business Combination, of the consideration other
than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the higher of the
following (in each case appropriately adjusted in the event of any
stock dividend, stock split, combination of shares or similar event):
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(a) (if applicable) the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Stockholder or any of
its Affiliates for any shares of Common Stock acquired by them within
the two-year period immediately prior to the date of the first public
announcement of the proposal of the Business Combination (the
"Announcement Date") or in any transaction in which the Interested
Stockholder became an Interested Stockholder, whichever is higher, plus
interest compounded annually from the first date on which the
Interested Stockholder became an Interested Stockholder (the
"Determination Date") through the Consummation Date at the publicly
announced reference rate of interest of Bank of America, N.T. & S.A.
(or such other major bank headquartered in the State of California as
may be selected by the Continuing Directors) from time to time in
effect in the City of San Francisco less the aggregate amount of any
cash dividends paid, and the Fair Market Value of any dividends paid in
other than cash, on each share of Common Stock from the Determination
Date through the Consummation Date in an amount up to but not exceeding
the amount of interest so payable per share of Common Stock; and
(b) the Fair Market Value per share of
Common Stock on the Announcement Date or the Determination Date,
whichever is higher.
(iii) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the Consummation Date, of the
consideration other than cash to be received per share by holders of
shares of any class (or series), other than Stock or Excluded Preferred
Stock, of outstanding Voting Stock shall be at least equal to the
highest of the following (in each case appropriately adjusted in the
event of any stock dividend, stock split, combination of shares or
similar event), it being intended that the requirements of this
paragraph (2)(iii) shall be required to be met with respect to every
such class (or series) of outstanding Voting Stock whether or not the
Interested Stockholder or any of its Affiliates has previously acquired
any shares of a particular class (or series) of Voting Stock):
(a) (if applicable) the highest per
share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the Interested
Stockholder or any of its Affiliates for any shares of such
class (or series) of Voting Stock acquired by them within the
two-year period immediately prior to the Announcement Date or
in any transaction in which it became an Interested
Stockholder, whichever is higher, plus interest compounded
annually from the Determination Date through the Consummation
Date at the publicly announced reference rate of interest of
Bank of America, N.T. & S.A. (or such other major bank
headquartered in the State of California as may be selected by
the Continuing Directors) from time to time in effect in the
City of San Francisco less the aggregate amount of any cash
dividends paid, and the Fair Market Value of any dividends
paid in other than cash, on each share of such class (or
series) of Voting Stock from the Determination Date through
the Consummation Date in an amount up to but not exceeding the
amount of interest so payable per share of such class (or
series) of Voting Stock;
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(b) the Fair Market Value per share of
such class (or series) of Voting Stock on the Announcement
Date or on the Determination Date, whichever is higher; and
(c) the highest preferential amount per
share, if any, to which the holders of shares of such class
(or series) of Voting Stock would be entitled in the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the corporation.
(iv) After such Interested Stockholder has become
an Interested Stockholder and prior to the consummation of such
Business Combination: (a) except as approved by a majority of the
Continuing Directors, there shall have been no failure to declare and
pay at the regular date therefor any full quarterly dividends (whether
or not cumulative) on any outstanding Preferred Stock; (b) there shall
have been (I) no reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the Continuing
Directors, and (II) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar transaction
which has the effect of reducing the number of outstanding shares of
the Common Stock, unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors; and (c) neither
such Interested Stockholder nor any of its Affiliates shall have become
the beneficial owner of any additional shares of Voting Stock except as
part of the transaction which results in such Interested Stockholder
becoming an Interested Stockholder; provided, however, that no approval
by Continuing Directors shall satisfy the requirements of this
subparagraph (iv) unless at the time of such approval there are at
least two Continuing Directors.
(v) After such Interested Stockholder has become
an Interested Stockholder, such Interested Stockholder and any of its
Affiliates shall not have received the benefit, directly or indirectly
(except proportionately, solely in such Interested Stockholder's or
Affiliate's capacity as a stockholder of the corporation), of any
loans, advances, guarantees, pledges or other financial assistance or
any tax credits or other tax advantages provided by the corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise.
(vi) A proxy or information statement describing
the proposed Business Combination and complying with the requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (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).
(vii) Such Interested Stockholder shall have
supplied the corporation with such information as shall have been
requested pursuant to Section E of this Article VIII within the time
period set forth therein.
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C. For the purposes of this Article VIII:
(1) A "person" means any individual, limited partnership,
general partnership, corporation or other firm or entity.
(2) "Interested Stockholder" means any person (other than
the corporation or any Subsidiary) who or which:
(i) is the Beneficial Owner (as hereinafter
defined), directly or indirectly, of fifteen percent (15%) or more of
the voting power of all of the then-outstanding shares of the Voting
Stock; or
(ii) if an Affiliate of the corporation and at
any time within the two-year period immediately prior to the date in
question was the Beneficial Owner, directly or indirectly, of fifteen
percent (15%) or more of the voting power of all of the
then-outstanding shares of the Voting Stock; or
(iii) 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 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
1933 Act.
(3) A person shall be a "Beneficial Owner" of, or shall
"Beneficially Own," any Voting Stock:
(i) which such person or any of its Affiliates
or Associates (as hereinafter defined) beneficially owns, directly or
indirectly within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as in effect on the adoption date of this
Certificate of Incorporation; or
(ii) which such person or any of its Affiliates
or Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (b) the right to vote pursuant to any agreement, arrangement or
understanding (but shall not 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
(iii) which is beneficially owned, directly or
indirectly, within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as in effect on the adoption date of this
Certificate of Incorporation, 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 (other than solely by reason of a revocable proxy as described
in subparagraph (ii) of this paragraph (3) or disposing of any shares
of Voting Stock;
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provided, however, that in 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 any shares of Voting Stock held by such plan, no such
plan nor any trustee with respect thereto (nor any Affiliate of such trustee),
solely by reason of such capacity of such trustee, shall be deemed, for any
purposes hereof, to beneficially own any shares of Voting Stock held under any
such plan.
(4) For the purposes of determining whether a person is
an Interested Stockholder pursuant to paragraph (2) of this Section C, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of paragraph (3) of this Section C but shall
not include any other unissued 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.
(5) "Affiliate" or "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 the
adoption date of this Certificate of Incorporation.
(6) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in paragraph (2) of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned directly or indirectly, by the corporation.
(7) "Continuing Director" means any member of the Board
of Directors of the corporation who is unaffiliated with 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 on the Board of Directors or who is
elected and who, in either event, is unaffiliated with the Interested
Stockholder and in connection with his or her initial assumption of office is
recommended for an appointment or election by a majority of Continuing Directors
then on the Board.
(8) "Fair Market Value" means: (i) in the case of stock,
the highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing sale price
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any system then in use, or if no
such quotations are available, the fair market value on the date in question of
a share of such stock as determined by the Board in accordance with Section D of
this Article VIII; and (ii) in the case of property other than cash or stock,
the fair market value of such property on the date in question as determined by
the Board in accordance with Section D of this Article VIII.
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(9) 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)(ii) and (2)(iii) of Section B of this Article VIII
shall include the shares of Common Stock and/or the shares of any other class
(or series) of outstanding Voting Stock retained by the holders of such shares.
(10) "Whole Board" means the total number of directors
which this corporation would have if there were no vacancies.
(11) "Excluded Preferred Stock" means any series of
Preferred Stock with respect to which the Preferred Stock Designation creating
such series expressly provides that the provisions of this Article VIII shall
not apply.
D. A majority of the Whole Board but only if a majority of the
Whole Board shall then consist of Continuing Directors or, if a majority of the
Whole Board shall not then consist of Continuing Directors, a majority of the
then Continuing Directors, shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article VIII, including, without limitation,
(i) whether a person is an Interested Stockholder, (ii) the number of shares of
Voting Stock beneficially owned by any person, (iii) whether a person is an
Affiliate or Associate of another, (iv) whether the applicable conditions set
forth in paragraph (2) of Section B have been met with respect to any Business
Combination, (v) the Fair Market Value of stock or other property in accordance
with paragraph (8) of Section C of this Article VIII, and (vi) whether the
assets which are the subject of any Business Combination referred to in
paragraph (1)(ii) of Section A have or the consideration to be received for the
issuance or transfer of securities by the corporation or any Subsidiary in any
Business Combination referred to in paragraph (1)(iii) of Section A has, an
aggregate Fair Market Value equal to or greater than 15% of the Corporation's
assets as set forth on the Corporation's most recent audited consolidated
financial statements.
E. A majority of the Whole Board shall have the right to demand,
but only if a majority of the Whole Board shall then consist of Continuing
Directors, or, if a majority of the Whole Board shall not then consist of
Continuing Directors, a majority of the then Continuing Directors shall have the
right to demand, that any person who it is reasonably believed is an Interested
Stockholder (or holds of record shares of Voting Stock Beneficially Owned by any
Interested Stockholder) supply this corporation with complete information as to
(i) the record owner(s) of all shares Beneficially Owned by such person who it
is reasonably believed is an Interested Stockholder, (ii) the number of, and
class or series of, shares Beneficially Owned by such person who it is
reasonably believed is an Interested Stockholder and held of record by each such
record owner and the number(s) of the stock certificate(s) evidencing such
shares, and (iii) any other factual matter relating to the applicability of
effect of this Article VIII, as may be reasonably requested of such person, and
such person shall furnish such information within 10 days after receipt of such
demand.
F. Nothing contained in this Article VIII shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
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IX.
Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, this Certificate
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class, shall be required to alter, amend or repeal Article VI,
Article VII, Article VIII or this Article IX.
X.
The corporation is to have perpetual existence.
XI.
The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, except as provided in Article IX of this
Certificate, and all rights conferred upon the stockholders herein are granted
subject to this right.
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