Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEALED AIR CORPORATION
(formerly named W. R. Grace & Co.)
Sealed Air Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
as follows:
1. The Corporation was originally incorporated under the name
Grace Holding, Inc. on January 29, 1996, and its original Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware
on the same date.
2. The Certificate of Incorporation of the Corporation was
amended to change the name of the Corporation to W. R. Grace & Co. by the
filing of an Amendment to Certificate of Incorporation of Grace Holding, Inc.
with the Secretary of State of the State of Delaware on September 27, 1996.
3. The Certificate of Incorporation of the Corporation was
further amended to change the name of the Corporation to Sealed Air
Corporation by the filing of an Amendment to Certificate of Incorporation of
W. R. Grace & Co. with the Secretary of State of the State of Delaware on
March 31, 1998.
4. The text of the Certificate of Incorporation, as heretofore
amended, is further amended and restated in its entirety by the Amended and
Restated Certificate of Incorporation attached hereto.
5. The Amended and Restated Certificate of Incorporation
attached hereto has been duly adopted by the Board of Directors and
stockholders of the Corporation in accordance with the applicable provisions
of Sections 242 and 245 of the General Corporation Law of the State of
Delaware.
6. The aforesaid amendment to the Certificate of
Incorporation of the Corporation shall become effective at 5:06 p.m.
Eastern Standard Time on March 31, 1998.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed and acknowledged by its Vice President, for
the purpose of amending and restating the Certificate of Incorporation of
the Corporation pursuant to the General Corporation Law of the State of
Delaware this 31st day of March, 1998.
SEALED AIR CORPORATION
By: /s/ Robert Lamm
----------------------------
Name: Robert Lamm
Title: Vice President
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEALED AIR CORPORATION
FIRST: The name of the corporation is Sealed Air Corporation
(the "Corporation").
SECOND: The registered office of the Corporation in the State
of Delaware is to be located at The Prentice-Hall Corporation System, Inc.,
1013 Centre Road, Wilmington, New Castle County, Delaware 19805. Its
registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 450,000,000, consisting of
400,000,000 shares of Common Stock, par value $0.10 per share (the "Common
Stock"), and 50,000,000 shares of Preferred Stock, par value $0.10 per share
(the "Preferred Stock").
The Preferred Stock may be issued from time to time in one or
more series. The powers, designations, preferences and other rights and
qualifications, limitations or restrictions of the Preferred Stock of each
series shall be such as are stated and expressed in this Article Fourth and,
to the extent not stated and expressed herein, shall be such as may be fixed
by the Board of Directors (authority so to do being hereby expressly granted)
and stated and expressed in a resolution or resolutions adopted by the Board
of Directors providing for the initial issue of Preferred Stock of such
series. Such resolution or resolutions shall (a) fix the dividend rights of
holders of shares of such series, (b) fix the terms on which stock of such
series may be redeemed if the shares of such series are to be redeemable, (c)
fix the rights of the holders of stock of such series upon dissolution or any
distribution of assets, (d) fix the terms or amount of the sinking fund, if
any, to be provided for the purchase or redemption of stock of such series,
(e) fix the terms upon which the stock of such series may be converted into or
exchanged for stock of any other class or classes or of any one or more series
of Preferred Stock if the shares of such series are to be convertible or
exchangeable, (f) fix the voting rights, if any, of the shares of such series
and (g) fix such other powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof desired to be so fixed.
Except to the extent otherwise provided in the resolution or
resolutions of the Board of Directors providing for the initial issue of
shares of a particular series or expressly required by law, holders of shares
of Preferred Stock of any series shall be entitled to one vote for each share
thereof so held, shall vote share for share with the holders of the Common
Stock without distinction as to class and shall not be entitled to vote
separately as a class or series of a class. The number of shares of Preferred
Stock authorized to be issued may be increased or decreased from time to time
by the affirmative vote of the holders of a majority of the voting power of
the then outstanding Voting Stock, and the holders of the Preferred Stock
shall not be entitled to vote separately as a class or series of a class on
any such increase or decrease. For the purposes of this Amended and Restated
Certificate of Incorporation, "Voting Stock" shall mean the outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of directors.
All shares of any one series of Preferred Stock shall be
identical with each other in all respects except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon shall accumulate, and all series of Preferred Stock shall rank equally
and be identical in all respects except as specified in the respective
resolutions of the Board of Directors providing for the initial issue thereof.
Subject to the prior and superior rights of the Preferred Stock
as set forth in any resolution or resolutions of the Board of Directors
providing for the initial issuance of any particular series of Preferred
Stock, such dividends (payable in cash, stock or otherwise) as may be
determined by the Board of Directors may be declared and paid on the Common
Stock from time to time out of any funds legally available therefor and the
Preferred Stock shall not be entitled to participate in any such dividend.
One series of Preferred Stock authorized hereby shall be Series
A Convertible Preferred Stock, as follows:
1. Number of Shares and Designation. 36,000,000 shares of
Preferred Stock of the Corporation shall constitute a series of Preferred
Stock designated as Series A Convertible Preferred Stock (the "Series A
Preferred Stock"). The number of shares of Series A Preferred Stock may be
increased (to the extent of the Corporation's authorized and unissued
Preferred Stock) or decreased (but not below the number of shares of Series
A Preferred Stock then outstanding) by further resolution duly adopted by
the Board of Directors and the filing of a certificate of increase or
decrease, as the case may be, with the Secretary of State of Delaware.
2. Rank. The Series A Preferred Stock shall, with respect
to payment of dividends, redemption payments and rights upon liquidation,
dissolution or winding up of the affairs of the Corporation, (i) rank
senior and prior to the Common Stock and each other class or series of
equity securities of the Corporation, whether currently issued or issued in
the future, that by its terms ranks junior to the Series A Preferred Stock
(whether with respect to payment of dividends, redemption payments or
rights upon liquidation, dissolution or winding up of the affairs of the
Corporation) (all of such equity securities, including the Common Stock,
are collectively referred to herein as the "Junior Securities"), (ii) rank
on a parity with each other class or series of equity securities of the
Corporation (other than the Common Stock), whether currently issued or
issued in the future, that does not by its terms expressly provide that it
ranks senior to or junior to the Series A Preferred Stock (whether with
respect to payment of dividends, redemption payments or rights upon
liquidation, dissolution or winding up of the affairs of the Corporation)
(all of such equity securities are collectively referred to herein as the
"Parity Securities"), and (iii) rank junior to each other class or series
of equity securities of the Corporation, whether currently issued or issued
in the future, that by its terms ranks senior to the Series A Preferred
Stock (whether with respect to payment of dividends, redemption payments or
rights upon liquidation, dissolution or winding up of the affairs of the
Corporation) (all of such equity securities are collectively referred to
herein as the "Senior Securities"). The respective definitions of Junior
Securities, Parity Securities and Senior Securities shall also include any
rights or options exercisable or exchangeable for or convertible into any
of the Junior Securities, Parity Securities or Senior Securities, as the
case may be.
3. Dividends.
(a) The holders of shares of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors,
out of funds legally available for the payment of dividends, cash dividends
at the annual rate of $2.00 per share. Such dividends shall be payable
quarterly in arrears, in equal amounts, on April 1, July 1, October 1 and
January 1 of each year (unless such day is not a Business Day (as defined
below), in which event such dividends shall be payable on the next
succeeding Business Day), commencing July 1, 1998 (each such payment date
being a "Dividend Payment Date" and from the date of issuance until the
first Dividend Payment Date and each such quarterly period thereafter being
a "Dividend Period"). Dividends on shares of Series A Preferred Stock
shall be cumulative from the date of issue, whether or not in any Dividend
Period there shall be funds of the Corporation legally available for the
payment of dividends. The amount of dividends payable for each full
Dividend Period shall be computed by dividing the annual dividend rate by
four. The amount of dividends payable on the Series A Preferred Stock for
the initial Dividend Period, or for any other period shorter or longer than
a full Dividend Period, shall be computed on the basis of a 360-day year of
twelve 30-day months. As used herein, the term "Business Day" means any
day except a Saturday, Sunday or day on which banking institutions are
legally authorized to close in the City of New York.
(b) Each dividend shall be payable to the holders of record
of shares of Series A Preferred Stock as they appear on the stock records
of the Corporation at the close of business on such record dates (each, a
"Dividend Payment Record Date"), which shall be not more than 60 days nor
less than 10 days preceding the Dividend Payment Date thereof, as shall be
fixed by the Board of Directors. Accrued and unpaid dividends for any past
Dividend Periods may be declared and paid at any time, without reference to
any Dividend Payment Date, to holders of record on such date, not more than
60 days nor less than 10 days preceding the payment date thereof, as may be
fixed by the Board of Directors. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
on the Series A Preferred Stock that may be in arrears.
(c) Except as described in the next succeeding sentence, so
long as any shares of Series A Preferred Stock are outstanding, (i) no
dividends shall be declared or paid or set apart for payment, or other
distribution declared or made, on any Parity Securities for any period
unless the Corporation has paid or contemporaneously pays or declares and
sets apart for payment on the Series A Preferred Stock all accrued and
unpaid dividends for all Dividend Periods terminating on or prior to the
date of payment of such dividends, and (ii) no dividends shall be declared
or paid or set apart for payment, or other distribution declared or made,
on the Series A Preferred Stock for any Dividend Period unless the
Corporation has paid or contemporaneously pays or declares and sets apart
for payment on any Parity Securities all accrued and unpaid dividends for
all dividend payment periods terminating on or prior to the Dividend
Payment Date for such dividends. Unless and until dividends accrued but
unpaid in respect of all past Dividend Periods with respect to the Series A
Preferred Stock and all past dividend periods with respect to any Parity
Securities at the time outstanding shall have been paid in full or a sum
sufficient for such payment is set apart, all dividends declared by the
Corporation upon shares of Series A Preferred Stock and upon all Parity
Securities shall be declared ratably in proportion to the respective
amounts of dividends accrued and unpaid on the Series A Preferred Stock and
Parity Securities.
(d) So long as any shares of Series A Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for payment,
or other distribution declared or made, upon any Junior Securities (other than
dividends or distributions paid in shares of, or options, warrants or rights
to subscribe for or purchase shares of Junior Securities), nor shall any
Junior Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of any employee or director incentive or benefit plans or
arrangements of the Corporation or any subsidiary of the Corporation) for any
consideration (nor shall any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such Junior Securities) by the
Corporation, directly or indirectly (except by conversion into or exchange for
Junior Securities), unless in each case (i) the full cumulative dividends on
all outstanding shares of Series A Preferred Stock and any other Parity
Securities shall have been paid or set apart for payment for all past Dividend
Periods with respect to the Series A Preferred Stock and all past dividend
periods with respect to such Parity Securities and (ii) sufficient funds shall
have been paid or set apart for the payment of the dividend for the current
Dividend Period with respect to the Series A Preferred Stock and for the
current dividend period with respect to such Parity Securities.
(e) The Corporation shall not, directly or indirectly, make any
payment on account of any purchase, redemption, retirement or other
acquisition of any Parity Securities (other than for consideration payable
solely in Junior Securities) unless all accrued and unpaid dividends on the
Series A Preferred Stock for all Dividend Payment Periods ending on or before
such payment for such Parity Securities shall have been paid or declared and
set apart for payment.
(f) If at any time the Corporation issues any Senior Securities
and the Corporation shall have failed to declare and pay or set apart for
payment accrued and unpaid dividends on such Senior Securities, in whole or in
part, then (except to the extent allowed by the terms of the Senior
Securities) no dividends shall be declared or paid or set apart for payment on
the Series A Preferred Stock unless and until all accrued and unpaid dividends
with respect to the Senior Securities, including the full dividends for the
then-current dividend period, shall have been declared and paid or set apart
for payment.
4. Liquidation Preference.
(a) The liquidation preference for the shares of Series A
Preferred Stock shall be $50.00 per share, plus an amount equal to the
dividends accrued and unpaid thereon, whether or not declared, to the payment
date (the "Liquidation Value").
(b) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Series
A Preferred Stock (i) shall not be entitled to receive the Liquidation Value
of such shares until payment in full or provision has been made for the
payment in full of all claims of creditors of the Corporation and the
liquidation preferences for all Senior Securities, and (ii) shall be entitled
to receive the Liquidation Value of such shares before any payment or
distribution of any assets of the Corporation shall be made or set apart for
holders of any Junior Securities. Subject to clause (i) above, if the assets
of the Corporation are not sufficient to pay in full the Liquidation Value
payable to the holders of shares of Series A Preferred Stock and the
liquidation preference payable to the holders of any Parity Securities, then
such assets, or the proceeds thereof, shall be distributed among the holders
of shares of Series A Preferred Stock and any such other Parity Securities
ratably in accordance with the Liquidation Value for the Series A Preferred
Stock and the liquidation preference for the Parity Securities, respectively.
Upon payment in full of the Liquidation Value to which the holders of shares
of Series A Preferred Stock are entitled, the holders of shares of Series A
Preferred Stock will not be entitled to any further participation in any
distribution of assets of the Corporation.
(c) Neither a consolidation or merger of the Corporation with
or into any other entity, nor a merger of any other entity with or into the
Corporation, nor a sale or transfer of all or any part of the Corporation's
assets for cash, securities or other property shall be considered a
liquidation, dissolution or winding up of the Corporation within the meaning
of this Section 4.
5. Redemption.
(a) Optional Redemption. The Series A Preferred Stock shall
not be redeemable prior to March 31, 2001. During the period from March 31,
2001 until March 31, 2003, the Corporation may redeem at its option shares of
Series A Preferred Stock in accordance with this Section 5 only if the last
reported sales price of a share of Common Stock in its principal trading
market for any 20 trading days within a period of 30 consecutive trading days
ending on the trading day prior to the date of mailing the notice of
redemption is at least $70.6563. At any time on or after March 31, 2001, to
the extent the Corporation shall have funds legally available to redeem shares
of Series A Preferred Stock and if permitted by the immediately preceding
sentence, the Corporation may redeem shares of Series A Preferred Stock, in
whole or in part, at the option of the Corporation, at the applicable cash
redemption price per share set forth below for any redemption during the
12-month period beginning on March 31 of the year indicated:
Year Redemption Price Per Share
- ------------------------------ ----------------------------
2001 $51.40
2002 $51.20
2003 $51.00
2004 $50.80
2005 $50.60
2006 $50.40
2007 $50.20
Thereafter $50.00
plus, in each case, an amount equal to the dividends accrued and unpaid
thereon, whether or not declared, up to but not including the redemption date.
From and after March 31, 2008, the Corporation may redeem shares of Series A
Preferred Stock, at any time in whole or in part, at the option of the
Corporation, at a cash redemption price per share of $50.00 plus an amount
equal to the dividends accrued and unpaid thereon, whether or not declared, up
to but not including the redemption date.
(b) Mandatory Redemption. To the extent the Corporation
shall have funds legally available for such payment, on March 31, 2018 (the
"Mandatory Redemption Date), the Corporation shall redeem all outstanding
shares of Series A Preferred Stock at a redemption price of $50.00 per
share in cash, together with accrued and unpaid dividends thereon, whether
or not declared, up to but not including such redemption date, without
interest. If the Corporation is unable or shall fail to discharge its
obligation to redeem all outstanding shares of Series A Preferred Stock on
the Mandatory Redemption Date (the "Mandatory Redemption Obligation"): (i)
dividends on the Series A Preferred Stock shall continue to accrue, without
interest, in accordance with Section 3, and (ii) the Mandatory Redemption
Obligation shall be discharged as soon thereafter as the Corporation is
able to discharge such Mandatory Redemption Obligation. If and for so long
as any Mandatory Redemption Obligation with respect to the Series A
Preferred Stock shall not be fully discharged on the Mandatory Redemption
Date, the Corporation shall not (x) directly or indirectly, redeem,
purchase, or otherwise acquire any Parity Securities or discharge any
mandatory or optional redemption, sinking fund or other similar obligation
in respect of any Parity Securities (except in connection with a
redemption, sinking fund or other similar obligation to be satisfied pro
rata with the Series A Preferred Stock) or (y) declare or pay or set apart
for payment any dividends or other distributions upon any Junior
Securities, or, directly or indirectly, discharge any mandatory or optional
redemption, sinking fund or other similar obligation in respect of any
Junior Securities.
6. Procedures for Redemption.
(a) If fewer than all of the outstanding shares of Series A
Preferred Stock are to be redeemed pursuant to Section 5, the shares shall be
redeemed on a pro rata basis (according to the number of shares of Series A
Preferred Stock held by each holder, with any fractional shares rounded to the
nearest whole share) or in such other manner as the Board of Directors may
determine, as may be prescribed by resolution of the Board of Directors.
Notwithstanding the provisions of Section 5 and this Section 6, unless full
cumulative cash dividends (whether or not declared) on all outstanding shares
of Series A Preferred Stock shall have been paid or contemporaneously are
declared and paid or set apart for payment for all Dividend Periods
terminating on or prior to the applicable redemption date, none of the shares
of Series A Preferred Stock shall be redeemed, and no sum shall be set aside
for such redemption, unless shares of Series A Preferred Stock are redeemed
pro rata.
(b) In the event of a redemption of shares of Series A
Preferred Stock pursuant to Section 5, notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 15 days nor
more than 60 days prior to the redemption date, to each holder of record of
the shares to be redeemed at such holder's address as the same appears on the
stock register of the Corporation; provided that neither the failure to give
such notice nor any defect therein shall affect the validity of the giving of
notice for the redemption of any share of Series A Preferred Stock to be
redeemed, except as to the holder to whom the Corporation has failed to give
said notice or except as to the holder whose notice was defective. Each such
notice shall state: (i) the redemption date; (ii) the number of shares of
Series A Preferred Stock to be redeemed and, if fewer than all the shares held
by such holder are to be redeemed, the number of shares to be redeemed from
such holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed will
cease to accrue on such redemption date. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the holder receives the notice.
(c) If a notice of redemption has been given pursuant to
Section 6(b) and if, on or before the redemption date, the funds necessary for
such redemption (including all dividends on the shares of Series A Preferred
Stock to be redeemed that will accrue to but not including the redemption
date) shall have been set aside by the Corporation, separate and apart from
its other funds, in trust for the pro rata benefit of the holders of the
shares so called for redemption, then on the redemption date, notwithstanding
that any certificates for such shares have not been surrendered for
cancellation, (i) dividends shall cease to accrue on the shares of Series A
Preferred Stock to be redeemed, (ii) the holders of such shares shall cease
to be stockholders with respect to those shares, shall have no interest in or
claims against the Corporation by virtue thereof and shall have no voting or
other rights with respect thereto, except the conversion rights provided in
Section 7 (in accordance with Section 6(e)) and the right to receive the
monies payable upon such redemption, without interest thereon, upon surrender
(and endorsement, if required by the Corporation) of their certificates, and
(iii) the shares evidenced thereby shall no longer be outstanding. Subject to
applicable escheat laws, any monies so set aside by the Corporation and
unclaimed at the end of two years from the redemption date shall revert to the
general funds of the Corporation, after which reversion the holders of such
shares so called for redemption shall look only to the general funds of the
Corporation for the payment of the redemption price, without interest. Any
interest accrued on funds so deposited shall belong to the Corporation and be
paid thereto from time to time.
(d) Upon surrender in accordance with the Corporation's notice
of redemption of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors shall so require
and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. 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 holder
thereof.
(e) If a notice of redemption has been given pursuant to
Section 6(b) and any holder of shares of Series A Preferred Stock shall, prior
to the close of business on the Business Day preceding the redemption date,
give written notice to the Corporation pursuant to Section 7 of the conversion
of any or all of the shares to be redeemed held by the holder (accompanied by
a certificate or certificates for such shares, duly endorsed or assigned to
the Corporation, and any necessary transfer tax payment, as required by
Section 7), then such redemption shall not become effective as to such shares
to be converted and such conversion shall become effective as provided in
Section 7, whereupon any funds deposited by the Corporation for the redemption
of such shares shall (subject to any right of the holder of such shares to
receive the dividend payable thereon as provided in Section 7) immediately
upon such conversion be returned to the Corporation or, if then held in trust
by the Corporation, shall automatically and without further corporate action
or notice be discharged from the trust.
7. Conversion.
(a) Right to Convert.
(i) Subject to the provisions of this Section 7,
each holder of shares of Series A Preferred Stock shall have
the right, at any time and from time to time, at such
holder's option, to convert any or all of such holder's
shares of Series A Preferred Stock, in whole or in part,
into fully paid and non-assessable shares of Common Stock at
the conversion price of $56.525 per share of Common Stock,
subject to adjustment as described in Section 7(c) (as
adjusted, the "Conversion Price"). The number of shares of
Common Stock into which a share of the Series A Preferred
Stock shall be convertible (calculated as to each conversion
to the nearest 1/1,000,000th of a share) shall be determined
by dividing $50.00 by the Conversion Price in effect at the
time of conversion.
(ii) If shares of Series A Preferred Stock are
called for redemption in accordance with Section 5(a), the
right to convert shares so called for redemption shall
terminate at the close of business on the Business Day
immediately preceding the date fixed for redemption unless
the Corporation shall default in making payment of the
amount payable upon such redemption, in which case the
conversion rights for such shares shall continue.
(b) Mechanics of Conversion.
(i) To exercise the conversion right, the holder of
shares of Series A Preferred Stock to be converted shall
surrender the certificate or certificates representing such
shares at the office of the Corporation (or any transfer
agent of the Corporation previously designated by the
Corporation to the holders of Series A Preferred Stock for
this purpose) with a written notice of election to convert
completed and signed, specifying the number of shares to be
converted. Unless the shares issuable upon conversion are
to be issued in the same name as the name in which such
shares of Series A Preferred Stock are registered, each
share surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or the holder's
duly authorized attorney and an amount sufficient to pay any
transfer or similar tax in accordance with Section
7(b)(vii). As promptly as practicable after the surrender
by the holder of the certificates for shares of Series A
Preferred Stock as aforesaid, the Corporation shall issue
and shall deliver to such holder, or on the holder's written
order to the holder's transferee, a certificate or
certificates for the whole number of shares of Common Stock
issuable upon the conversion of such shares and a check
payable in an amount corresponding to any fractional
interest in a share of Common Stock as provided in Section
7(b)(viii).
(ii) Each conversion shall be deemed to have been
effected immediately prior to the close of business on the
first Business Day (the "Conversion Date") on which the
certificates for shares of Series A Preferred Stock shall
have been surrendered and such notice received by the
Corporation as aforesaid. At such time on the Conversion
Date:
(w) the person in whose name or names any
certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall
be deemed to have become the holder of record of the
shares of Common Stock represented thereby at such
time;
(x) such shares of Series A Preferred Stock
shall no longer be deemed to be outstanding and all
rights of a holder with respect to such shares
surrendered for conversion shall immediately
terminate except the right to receive the Common
Stock and other amounts payable pursuant to this
Section 7;
(y) in lieu of dividends on such Series A
Preferred Stock pursuant to Section 3, such shares
of Series A Preferred Stock shall participate
equally and ratably with the holders of shares of
Common Stock in all dividends paid on the Common
Stock; and
(z) the right of the Corporation to redeem
such shares of Series A Preferred Stock shall
terminate, regardless of whether a notice of
redemption has been mailed as aforesaid.
All shares of Common Stock delivered upon conversion of the
Series A Preferred Stock will, upon delivery, be duly and
validly issued and fully paid and non-assessable, free of
all liens and charges and not subject to any preemptive
rights.
(iii) Holders of shares of Series A Preferred Stock
at the close of business on a Dividend Payment Record Date
shall be entitled to receive the dividend payable on such
shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such
Dividend Payment Record Date and prior to such Dividend
Payment Date. However, shares of Series A Preferred Stock
surrendered for conversion during the period between the
close of business on any Dividend Payment Record Date and
the opening of business on the corresponding Dividend
Payment Date (except shares converted after the issuance of
a notice of redemption during such period, which shall be
entitled to such dividend on the Dividend Payment Date) must
be accompanied by payment of an amount equal to the dividend
payable on such shares on such Dividend Payment Date;
provided that notwithstanding such surrender of shares for
conversion after such Dividend Payment Record Date, the
holders thereof at the close of business on such Dividend
Payment Record Date shall be entitled to receive the
dividend payable on such shares on the corresponding
Dividend Payment Date. A holder of shares of Series A
Preferred Stock on a Dividend Payment Record Date who (or
whose transferee) tenders any such shares for conversion
into shares of Common Stock on such Dividend Payment Date
will receive the dividend payable by the Corporation on such
shares of Series A Preferred Stock on such date, and the
converting holder need not include payment of the amount of
such dividend upon surrender of shares of Series A Preferred
Stock for conversion.
(iv) Except as provided in clause (iii) above and
in Section 7(c), the Corporation shall make no payment or
adjustment for accrued and unpaid dividends on shares of
Series A Preferred Stock, whether or not in arrears, on
conversion of such shares or for dividends in cash on the
shares of Common Stock issued upon such conversion.
(v) The Corporation covenants that it will at all
times reserve and keep available, free from preemptive
rights, such number of its authorized but unissued shares of
Common Stock as shall be required for the purpose of
effecting conversions of the Series A Preferred Stock.
Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon conversion of
the Series A Preferred Stock, the Corporation shall comply
with all applicable federal and state laws and regulations
which require action to be taken by the Corporation.
(vi) The Corporation will pay any and all
documentary stamp or similar issue or transfer taxes payable
in respect of the issuance or delivery of shares of Common
Stock on conversion of the Series A Preferred Stock pursuant
hereto; provided that the Corporation shall not be required
to pay any tax which may be payable in respect of any
transfer involved in the issuance or delivery of shares of
Common Stock in a name other than that of the holder of the
Series A Preferred Stock to be converted, and no such
issuance or delivery shall be made unless and until the
person requesting such issuance 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.
(vii) In connection with the conversion of any
shares of Series A Preferred Stock, no fractions of shares
of Common Stock shall be issued, but in lieu thereof the
Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional
interest multiplied by the Daily Price (as defined below)
per share of Common Stock on the Conversion Date. In the
absence of a Daily Price, the Board of Directors shall in
good faith determine the current market price on such basis
as it considers appropriate, and such current market price
shall be used to calculate the cash adjustment. As used
herein, "Daily Price" means (w) if the shares of such class
of Common Stock are then listed and traded on the New York
Stock Exchange, Inc. ("NYSE"), the closing price on such
day as reported on the NYSE Composite Transactions Tape;
(x) if the shares of such class of Common Stock are not then
listed and traded on the NYSE, the closing price on such day
as reported by the principal national securities exchange on
which the shares are listed and traded; (y) if the shares
of such class of Common Stock are not then listed and traded
on any such securities exchange, the last reported sale
price on such day on the National Market of the National
Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ"); or (z) if the shares of such class of
Common Stock are not then traded on the NASDAQ National
Market, the average of the highest reported bid and lowest
reported asked price on such day, as reported by NASDAQ.
(c) Adjustments to Conversion Price. The Conversion Price
shall be adjusted from time to time as follows:
(i) If, at any time after the date of issuance of
the Series A Preferred Stock, the Corporation shall (A) pay
a dividend or make a distribution on any class of its
capital stock in shares of its Common Stock, (B) subdivide
its outstanding shares of Common Stock into a greater number
of shares or (C) combine its outstanding shares of Common
Stock into a smaller number of shares, the Conversion Price
in effect immediately prior thereto shall be adjusted as
provided below so that the Conversion Price thereafter shall
be determined by multiplying the Conversion Price at which
the shares of Series A Preferred Stock were theretofore
convertible by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding immediately
prior to such action, and the denominator of which shall be
the number of shares of Common Stock outstanding immediately
following such action. Such adjustment shall be made
whenever any event listed above shall occur and shall become
effective retroactively immediately after the record date in
the case of a dividend and immediately after the effective
date in the case of a subdivision or combination.
(ii) If, at any time after the date of issuance of
the Series A Preferred Stock, the Corporation shall issue
rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after
the record date for determining stockholders entitled to
receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less
than the current market price per share of Common Stock at
the record date therefor (as determined in accordance with
the provisions of Section 7(c)(iv)), the "Current Market
Price"), or in case the Corporation shall issue to all
holders of its Common Stock other securities convertible
into or exchangeable for Common Stock for a consideration
per share of Common Stock deliverable upon conversion or
exchange thereof less than the Current Market Price, then
the Conversion Price in effect immediately prior thereto
shall be adjusted as provided below so that the Conversion
Price therefor shall be equal to the price determined by
multiplying (A) the Conversion Price at which shares of
Series A Preferred Stock were theretofore convertible by (B)
a fraction of which the numerator shall be the sum of (1)
the number of shares of Common Stock outstanding on the date
of issuance of the convertible or exchangeable securities,
rights or warrants and (2) the number of additional shares
of Common Stock that the aggregate offering price for the
number of shares of Common Stock so offered would purchase
at the Current Market Price per share of Common Stock, and
of which the denominator shall be the sum of (1) the number
of shares of Common Stock outstanding on the date of
issuance of such convertible or exchangeable securities,
rights or warrants and (2) the number of additional shares
of Common Stock offered for subscription or purchase, or
issuable upon such conversion or exchange. Such adjustment
shall be made whenever such convertible or exchangeable
securities, rights or warrants are issued, and shall become
effective immediately after the record date for the
determination of stockholders entitled to receive such
securities. However, upon the expiration of any right or
warrant to purchase Common Stock, the issuance of which
resulted in an adjustment in the Conversion Price pursuant
to this Section 7(c)(ii), if any such right or warrant shall
expire and shall not have been exercised, the Conversion
Price shall be recomputed immediately upon such expiration
and effective immediately upon such expiration shall be
increased to the price it would have been (but reflecting
any other adjustments to the Conversion Price made pursuant
to the provisions of this Section 7(c) after the issuance of
such rights or warrants) had the adjustment of the
Conversion Price made upon the issuance of such rights or
warrants been made on the basis of offering for subscription
or purchase only that number of shares of Common Stock
actually purchased upon the exercise of such rights or
warrants. No further adjustment shall be made upon exercise
of any right, warrant, convertible security or exchangeable
security if any adjustment shall have been made upon
issuance of such security.
(iii) If, at any time after the date of issuance of
the Series A Preferred Stock, the Corporation shall
distribute to all holders of its Common Stock (including any
dividend paid in connection with a consolidation or merger
in which the Corporation is the continuing corporation) any
shares of capital stock of the Corporation or its
subsidiaries (other than Common Stock) or evidences of its
indebtedness, cash or other assets (excluding dividends
payable solely in cash that may from time to time be fixed
by the Board of Directors, or dividends or distributions in
connection with the liquidation, dissolution or winding up
of the Corporation) or rights or warrants to subscribe for
or purchase any of its securities or those of its
subsidiaries or securities convertible or exchangeable for
Common Stock (excluding those securities referred to in
Section 7(c)(ii)), then in each such case the Conversion
Price in effect immediately prior thereto shall be adjusted
as provided below so that the Conversion Price thereafter
shall be equal to the price determined by multiplying (A)
the Conversion Price in effect on the record date mentioned
below by (B) a fraction, the numerator of which shall be the
Current Market Price per share of Common Stock on the record
date mentioned below less the then fair market value (as
determined by the Board of Directors, whose good faith
determination shall be conclusive) as of such record date of
the assets, evidences of indebtedness or securities so paid
with respect to one share of Common Stock, and the
denominator of which shall be the Current Market Price per
share of Common Stock on such record date; provided,
however, that in the event the then fair market value (as so
determined) so paid with respect to one share of Common
Stock is equal to or greater than the Current Market Price
per share of Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of shares of
Series A Preferred Stock shall have the right to receive the
amount and kind of assets, evidences of indebtedness, or
securities such holder would have received had such holder
converted each such share of Series A Preferred Stock
immediately prior to the record date for such dividend.
Such adjustment shall be made whenever any such payment is
made, and shall become effective retroactively immediately
after the record date for the determination of stockholders
entitled to receive the payment.
(iv) For the purpose of any computation under
Sections 7(c)(ii) or 7(c)(iii), the Current Market Price per
share of Common Stock at any date shall be deemed to be the
average Daily Price for the 30 consecutive trading days
commencing 35 trading days before the day in question.
(v) No adjustment in the Conversion Price shall be
required unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Price then in
effect; provided, however, that any adjustments that by
reason of this Section 7(c)(v) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section
7(c) shall be made to the nearest cent.
(vi) In the event that, at any time as a result of
an adjustment made pursuant to Section 7(c)(i) or 7(c)(iii),
the holder of any shares of Series A Preferred Stock
thereafter surrendered for conversion shall become entitled
to receive any shares of the Corporation or its
subsidiaries, other than shares of the Common Stock,
thereafter the number of such other shares so receivable
upon conversion of any share of Series A Preferred Stock
shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
Sections 7(c)(i) through 7(c)(v), and the other provisions
of this Section 7 with respect to the Common Stock shall
apply on like terms to any such other shares.
(vii) Whenever the Conversion Price is adjusted, as
herein provided, the Corporation shall promptly file with
the transfer agent for the Series A Preferred Stock a
certificate of an officer of the Corporation setting forth
the Conversion Price after the adjustment and setting forth
a brief statement of the facts requiring such adjustment and
a computation thereof. The certificate shall be prima facie
evidence of the correctness of the adjustment. The
Corporation shall promptly cause a notice of the adjusted
Conversion Price to be mailed to each registered holder of
shares of Series A Preferred Stock.
(viii) In case of any reclassification of the
Common Stock, any consolidation of the Corporation with, or
merger of the Corporation into, any other entity, any merger
of another entity into the Corporation (other than a merger
that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common
Stock of the Corporation), any sale or transfer of all or
substantially all of the assets of the Corporation or any
compulsory share exchange pursuant to which share exchange
the Common Stock is converted into other securities, cash or
other property, then lawful provision shall be made as part
of the terms of such transaction whereby the holder of each
share of Series A Preferred Stock then outstanding shall
have the right thereafter, during the period such share
shall be convertible, to convert such share only into the
kind and amount of securities, cash and other property
receivable upon the reclassification, consolidation, merger,
sale, transfer or share exchange by a holder of the number
of shares of Common Stock of the Corporation into which a
share of Series A Preferred Stock would have been
convertible immediately prior to the reclassification,
consolidation, merger, sale, transfer or share exchange.
The Corporation, the person formed by the consolidation or
resulting from the merger or which acquires such assets or
which acquires the Corporation's shares, as the case may be,
shall make provisions in its certificate or articles of
incorporation or other constituent documents to establish
such rights and to ensure that the dividend, voting and
other rights of the holders of Series A Preferred Stock
established herein are unchanged, except as permitted by
Section 9 and applicable law. The certificate or articles
of incorporation or other constituent documents shall
provide for adjustments, which, for events subsequent to the
effective date of the certificate or articles of
incorporation or other constituent documents, shall be as
nearly equivalent as may be practicable to the adjustments
provided for in this Section 7. The provisions of this
Section 7(c)(viii) shall similarly apply to successive
reclassifications, consolidations, mergers, sales, transfers
or share exchanges.
(d) Optional Reduction in Conversion Price. The
Corporation may at its option reduce the Conversion Price from time to time
by any amount for any period of time if the period is at least 20 days and
if the reduction is irrevocable during the period. Whenever the Conversion
Price is so reduced, the Corporation shall mail to holders of record of the
Series A Preferred Stock a notice of the reduction at least 15 days before
the date the reduced Conversion Price takes effect, stating the reduced
Conversion Price and the period it will be in effect. A voluntary
reduction of the Conversion Price does not change or adjust the Conversion
Price otherwise in effect for purposes of Section 7(c).
8. Status of Shares. All shares of Series A Preferred
Stock that are at any time redeemed pursuant to Section 5 or converted
pursuant to Section 7 and all shares of Series A Preferred Stock that are
otherwise reacquired by the Corporation shall (upon compliance with any
applicable provisions of the laws of the State of Delaware) have the status
of authorized but unissued shares of Preferred Stock, without designation
as to series, subject to reissuance by the Board of Directors as shares of
any one or more other series.
9. Voting Rights.
(a) The holders of record of shares of Series A Preferred Stock
shall not be entitled to any voting rights except as hereinafter provided in
this Section 9 or as otherwise provided by law.
(b) The holders of the shares of Series A Preferred Stock (i)
shall be entitled to vote with the holders of the Common Stock on all matters
submitted for a vote of holders of Common Stock (voting together with the
holders of Common Stock as one class), (ii) shall be entitled to a number of
votes equal to the number of votes to which shares of Common Stock issuable
upon conversion of such shares of Series A Preferred Stock would have been
entitled if such shares of Common Stock had been outstanding at the time of
the applicable vote and related record date and (iii) shall be entitled to
notice of any stockholders' meeting in accordance with the Certificate of
Incorporation and Bylaws of the Corporation.
(c) If and whenever six quarterly dividends (whether or not
consecutive) payable on the Series A Preferred Stock have not been paid in
full or if the Corporation shall have failed to discharge its Mandatory
Redemption Obligation on or after the Redemption Date, the number of
directors then constituting the Board of Directors shall be increased by
two and the holders of shares of Series A Preferred Stock, together with
the holders of shares of every other series of preferred stock upon which
like rights to vote for the election of two additional directors have been
conferred and are exercisable (resulting from either the failure to pay
dividends or the failure to redeem) (any such other series is referred to
as the "Preferred Shares"), voting as a single class regardless of series,
shall be entitled to elect the two additional directors to serve on the
Board of Directors at any annual meeting of stockholders or special meeting
held in place thereof, or at a special meeting of the holders of the Series
A Preferred Stock and the Preferred Shares called as hereinafter provided.
Whenever all arrears in dividends on the Series A Preferred Stock and the
Preferred Shares then outstanding shall have been paid and dividends
thereon for the current quarterly dividend period shall have been paid or
declared and set apart for payment, or the Corporation shall have fulfilled
its Mandatory Redemption Obligation, as the case may be, then the right of
the holders of the Series A Preferred Stock and the Preferred Shares to
elect such additional two directors shall cease (but subject always to the
same provisions for the vesting of such voting rights in the case of any
similar future arrearages in six quarterly dividends or failure to fulfill
any Mandatory Redemption Obligation), and the terms of office of all
persons elected as directors by the holders of the Series A Preferred Stock
and the Preferred Shares shall forthwith terminate and the number of the
Board of Directors shall be reduced accordingly. At any time after such
voting power shall have been so vested in the holders of shares of Series A
Preferred Stock and the Preferred Shares, the secretary of the Corporation
may, and upon the written request of any holder of Series A Preferred Stock
(addressed to the secretary at the principal office of the Corporation)
shall, call a special meeting of the holders of the Series A Preferred
Stock and of the Preferred Shares for the election of the two directors to
be elected by them as herein provided, such call to be made by notice
similar to that provided in the Bylaws of the Corporation for a special
meeting of the stockholders or as required by law. If any such special
meeting required to be called as above provided shall not be called by the
secretary within 20 days after receipt of any such request, then any holder
of shares of Series A Preferred Stock may call such meeting, upon the
notice above provided, and for that purpose shall have access to the stock
records of the Corporation. The directors elected at any such special
meeting shall hold office until the next annual meeting of the stockholders
or special meeting held in lieu thereof if such office shall not have
previously terminated as above provided. If any vacancy shall occur among
the directors elected by the holders of the Series A Preferred Stock and
the Preferred Shares, a successor shall be elected by the Board of
Directors, upon the nomination of the then-remaining director elected by
the holders of the Series A Preferred Stock and the Preferred Shares or the
successor of such remaining director, to serve until the next annual
meeting of the stockholders or special meeting held in place thereof if
such office shall not have previously terminated as provided above.
(d) So long as any shares of Series A Preferred Stock are
outstanding:
(i) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that
purpose by holders of at least 66-2/3% of the outstanding
shares of Series A Preferred Stock, voting as a single
class, amend, alter or repeal any provision of the
Corporation's Certificate of Incorporation (by merger or
otherwise) so as to materially and adversely affect the
preferences, rights or powers of the Series A Preferred
Stock; provided that any such amendment, alteration or
repeal to create, authorize or issue any Junior Securities
or Parity Securities, or any security convertible into, or
exchangeable or exercisable for, shares of Junior Securities
or Parity Securities, shall not be deemed to have any such
material adverse effect;
(ii) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that
purpose of at least 66-2/3% of the votes entitled to be cast
by the holders of shares of Series A Preferred Stock and of
all other series of Preferred Stock upon which like rights
to vote upon the matters specified herein have been
conferred and are exercisable, voting as a single class
regardless of series, create, authorize or issue any Senior
Securities, or any security convertible into, or
exchangeable or exercisable for, shares of Senior
Securities; and
(iii) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that
purpose of at least a majority of the votes entitled to be
cast by the holders of shares of Series A Preferred Stock
and of all other series of Preferred Stock upon which like
rights to vote upon the matters specified herein have been
conferred and are exercisable, voting as a single class
regardless of series, create, authorize or issue any new
class of Parity Securities; provided that this clause (iii)
shall not limit the right of the Corporation to issue Parity
Securities in connection with any merger in which the
Corporation is the surviving entity;
provided that no such consent or vote of the holders of Series A Preferred
Stock shall be required if at or prior to the time when such amendment,
alteration or repeal is to take effect, or when the issuance of any such
securities is to be made, as the case may be, all shares of Series A
Preferred Stock at the time outstanding shall have been called for
redemption by the Corporation and the funds necessary for such redemption
shall have been set aside in accordance with Sections 5 and 6.
(e) The consent or votes required in Sections 9(c) and 9(d)
shall be in addition to any approval of stockholders of the Corporation
which may be required by law or pursuant to any provision of the
Corporation's Certificate of Incorporation or Bylaws, which approval shall
be obtained by vote of the stockholders of the Corporation in the manner
provided in Section 9(b).
10. No Other Rights.
(a) The shares of Series A Preferred Stock shall not have
any relative, participating, optional or other special rights and powers
except as set forth herein or as may be required by law.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not be
subject to the payment of the corporate debts to any extent whatever except as
otherwise provided by law.
SEVENTH: In furtherance, and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
A. To adopt, amend or repeal the by-laws of the
Corporation; provided, however, that the by-laws adopted by
the Board of Directors under the powers hereby conferred may
be amended or repealed by the Board of Directors or by the
stockholders having voting power with respect thereto,
provided further that in the case of amendments by
stockholders, the affirmative vote of the holders of at
least 80 percent of the voting power of the then outstanding
Voting Stock, voting together as a single class, shall be
required to alter, amend or repeal any provision of the by-
laws;
B. To authorize and cause to be executed mortgages
and liens, with or without limit as to amount, upon the real
and personal property of the Corporation;
C. To authorize the guaranty by the Corporation of
securities, evidences of indebtedness and obligations of
other persons, corporations and business entities;
D. By resolution adopted by a majority of the whole
board, to designate one or more committees, each committee
to consist of two or more of the directors of the
Corporation, which, to the extent provided in the
resolution, shall have and may exercise the powers of the
Board of Directors in the management of the business and
affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers which may require
it. Such committee or committees shall have such name or
names as may be determined from time to time by resolution
adopted by the Board of Directors. The Board of Directors
may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified
member at any meeting of the committee. The members of any
such committee present at any meeting and not disqualified
from voting may, whether or not they constitute a quorum,
unanimously appoint another member of the Board of Directors
to act at the meeting in the place of any absent or
disqualified member.
All corporate powers of the Corporation shall be exercised by the Board of
Directors except as otherwise provided herein or by law. Notwithstanding
anything contained in this Amended and Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at
least 80 percent of the voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to amend, repeal or
adopt any provision inconsistent with paragraph A of this ARTICLE SEVENTH.
EIGHTH: Any property of the Corporation constituting less than
all of its assets including goodwill and its corporate franchise, deemed by
the Board of Directors to be not essential to the conduct of the business of
the Corporation, may be sold, leased, exchanged or otherwise disposed of by
authority of the Board of Directors. All of the property and assets of the
Corporation including its goodwill and its corporate franchises, may be sold,
leased or exchanged upon such terms and conditions and for such consideration
(which may be in whole or in part shares of stock and/or other securities of
any other corporation or corporations) as the Board of Directors shall deem
expedient and for the best interests of the Corporation, when and as
authorized by the affirmative vote of the holders of a majority of the voting
power of the then outstanding Voting Stock given at a stockholders' meeting
duly called for that purpose upon at least 20 days notice containing notice of
the proposed sale, lease or exchange.
NINTH: A director or officer of the Corporation shall not be
disqualified by his office from dealing or contracting with the Corporation
either as a vendor, purchaser or otherwise, nor shall any transaction or
contract of the Corporation be void or voidable by reason of the fact that any
director or officer or any firm of which any director or officer is a member
or any corporation of which any director or officer is a stockholder, officer
or director, is in any way interested in such transaction or contract,
provided that such transaction or contract is or shall be authorized, ratified
or approved either (1) by a vote of a majority of a quorum of the Board of
Directors or of a committee thereof, without counting in such majority any
director so interested (although any director so interested may be included in
such quorum), or (2) by a majority of a quorum of the stockholders entitled to
vote at any meeting. No director or officer shall be liable to account to the
Corporation for any profits realized from any such transaction or contract
authorized, ratified or approved as aforesaid by reason of the fact that he,
or any firm of which he is a member or any corporation of which he is a
stockholder, officer or director, was interested in such transaction or
contract. Nothing herein contained shall create liability in the events above
described or prevent the authorization, ratification or approval of such
contracts in any other manner permitted by law.
TENTH: Any contract, transaction or act of the Corporation or
of the Board of Directors which shall be approved or ratified by a majority of
a quorum of the stockholders entitled to vote at any meeting shall be as valid
and binding as though approved or ratified by every stockholder of the
Corporation; but any failure of the stockholders to approve or ratify such
contract, transaction or act, when and if submitted, shall not be deemed in
any way to invalidate the same or to deprive the Corporation, its directors or
officers of their right to proceed with such contract, transaction or act.
ELEVENTH: Each person who is or was or has agreed to become a
director or officer of the Corporation, and each such person who is or was
serving or who has agreed to serve at the request of the Board of Directors or
an officer of the Corporation as an employee or agent of the Corporation or as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the by-laws of the Corporation, to the fullest extent permitted from time
to time by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted prior to such
amendment) or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person which
provide for indemnification greater than or different from that provided in
this ARTICLE ELEVENTH. Any amendment or repeal of this ARTICLE ELEVENTH shall
not adversely affect any right or protection existing hereunder in respect of
any act or omission occurring prior to such amendment or repeal.
TWELFTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (1) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (3) under Section 174 of the General Corporation
Law of the State of Delaware, or (4) for any transaction from which the
director derived an improper personal benefit. Any amendment or repeal of
this ARTICLE TWELFTH shall not adversely affect any right or protection of a
director of the Corporation existing hereunder in respect of any act or
omission occurring prior to such amendment or repeal.
THIRTEENTH: 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 corporation
under Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
corporation under Section 279 of Title 8 of the Delaware Code, 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 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.
FOURTEENTH: Meetings of stockholders and directors may be held
within or without the State of Delaware, as the by-laws may provide. The
books of account of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors or in
the by-laws of the Corporation. Elections of directors need not be by written
ballot unless the by-laws of the Corporation shall so provide.
FIFTEENTH: Subject to the rights of the holders of any series
of Preferred Stock or any other series or class of stock as set forth in this
Amended and Restated Certificate of Incorporation to elect additional
directors under specific circumstances, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing in lieu of a meeting of such stockholders.
Notwithstanding anything contained in this Amended and Restated Certificate of
Incorporation to the contrary, the affirmative vote of at least 80 percent of
the voting power of the then outstanding Voting Stock, voting together as a
single class, shall be required to amend, repeal or adopt any provision
inconsistent with this ARTICLE FIFTEENTH.
SIXTEENTH: Subject to the rights of the holders of any series
of Preferred Stock or any other series or class of stock as set forth in this
Amended and Restated Certificate of Incorporation to elect additional
directors under specified circumstances, the number of directors of the
Corporation shall be fixed, and may be increased or decreased from time to
time, in such manner as may be prescribed by the by-laws.
Unless and except to the extent that the by-laws of the
Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
The directors, other than those who may be elected by the
holders of any series of Preferred Stock or any other series or class of stock
as set forth in this Amended and Restated Certificate of Incorporation, shall
be divided into three classes, as nearly equal in number as possible. One
class of directors shall be initially elected for a term expiring at the
annual meeting of stockholders to be held in 1997, another class shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 1998, and another class shall be initially elected for a term
expiring at the annual meeting of stockholders to be held in 1999. Members of
each class shall hold office until their successors are elected and qualified.
At each succeeding annual meeting of the stockholders of the Corporation, the
successors of the class of directors whose term expires at that meeting shall
be elected by a plurality vote of all votes cast at such meeting to hold
office for a term expiring at the annual meeting of stockholders held in the
third year following the year of their election.
Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock as set forth in this Amended and
Restated Certificate of Incorporation to elect additional directors under
specified circumstances, any director may be removed from office at any time
by the shareholders, but only for cause.
Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80 percent of the voting power of the then outstanding
Voting Stock, voting together as a single class, shall be required to amend,
repeal or adopt any provision inconsistent with this ARTICLE SIXTEENTH.
SEVENTEENTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this certificate of
incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.