EXHIBIT 3.2
(Unofficial Composite Copy through filing of July 20, 1999)
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. 36,021,851 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
3
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
4
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
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 (subject to equitable adjustment in
circumstances giving rise to adjustment of the Conversion Price under Section
7(c)). 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
6
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.
7
(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.
8
(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)(vii).
(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
9
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
10
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
11
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
12
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
13
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.
14
(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.
15
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
16
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;
17
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;
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; and
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
18
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.
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.
19
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
20
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, whenever the vote of stockholders at a
meeting thereof is required or permitted to be taken for or in connection with
any corporate action, the meeting and vote of stockholders may be dispensed
with if a written consent to such corporate action is signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted; provided that prompt notice
must be given to all stockholders of the taking of corporate action without a
meeting and by less than unanimous written consent.
SIXTEENTH: Each director, 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
hold office until a successor is elected at the next succeeding annual meeting
of stockholders and qualified or until such director's earlier resignation or
removal. Regardless of the foregoing sentence, in the case of directors
designated as Class I directors elected at the annual meeting of stockholders
held in 1999, such directors shall hold office until a successor is elected at
the annual meeting of stockholders held in 2002 and qualified or until such
director's earlier resignation or removal, and in the case of directors
designated as Class III directors prior to the annual meeting of stockholders
held in 1999, such directors shall hold office until a successor is elected at
the annual meeting of stockholders held in 2001 and qualified or until such
director's earlier resignation or removal.
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
21
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.