EXHIBIT 3
RESTATED
CERTIFICATE OF INCORPORATION
OF
ROCKWELL AUTOMATION, INC.
FIRST: The name of the Corporation is
ROCKWELL AUTOMATION, INC.
SECOND: The Corporation's registered office in the State of Delaware is located
at 1209 Orange Street, in the City of Wilmington, County of New Castle. The name
and address of its registered agent is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
THIRD: The nature of the business, or objects or purposes to be transacted,
promoted or carried on, are: 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 all classes of stock which the Corporation
shall have the authority to issue is 1,125,000,000, of which 25,000,000 shares
without par value are to be of a class designated Preferred Stock, 1,000,000,000
shares of the par value of $1 each are to be of a class designated Common Stock,
and 100,000,000 shares of the par value of $1 each are to be of a class
designated Class A Common Stock, subject, however, to the provisions of
paragraph 3.4 below.
In this Article Fourth, any reference to a section or paragraph, without further
attribution, within a provision relating to a particular class of stock is
intended to refer solely to the specified section or paragraph of the other
provisions relating to the same class of stock.
COMMON STOCK AND CLASS A COMMON STOCK
The Common Stock and Class A Common Stock shall have the following
voting powers, designations, preferences and relative, participating,
optional and other special rights, and qualifications, limitations or
restrictions thereof:
1. Dividends.
1.1. Whenever the full dividends upon any outstanding Preferred Stock
for all past dividend periods shall have been paid and the full
dividends thereon for the then current respective dividend periods shall
have been paid, or declared and a sum sufficient for the respective
payments thereof set apart, the holders of shares of the Common Stock
and Class A Common Stock shall be entitled to receive such dividends and
distributions, payable in cash or otherwise, as may be declared thereon
by
the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor, provided that all such
dividends or distributions shall be paid or made in equal amounts,
share for share, to the holders of the Common Stock and Class A Common
Stock as if a single class, except that (a) in the event that any
dividend shall be declared in shares of Common Stock or Class A Common
Stock, such dividend shall be declared at the same rate per share on
Common Stock and Class A Common Stock, but the dividend payable on
shares of Common Stock shall be payable in shares of Common Stock, and
the dividend payable on shares of Class A Common Stock shall be payable
in shares of Class A Common Stock; and (b) any dividend described in
paragraph 1.2 below may be paid as therein described. If the
Corporation shall in any manner split, subdivide or combine the
outstanding shares of Common Stock or Class A Common Stock, the
outstanding shares of the other such class of stock shall be split,
subdivided or combined in the same manner proportionately and on the
same basis per share. Following the distribution of shares of Class A
Common Stock to the holders of shares of Class A Common Stock, par
value $1 per share, of Rockwell International Corporation, a Delaware
corporation ("Oldco Class A Common Stock"), on the record date fixed
for determining the holders thereof entitled to receive the
distribution (such record date being herein referred to as the
"Distribution Record Date"), the Corporation shall not issue any shares
of Class A Common Stock except (x) pursuant to this paragraph 1.1; (y)
upon exercise of employee stock options (whether or not outstanding or
exercisable on the Distribution Record Date); and (z) in connection
with any contribution made by the Corporation to any employee benefit
or stock ownership plan of the Corporation.
1.2. In the event the Corporation shall distribute to the holders of
the shares of Common Stock and Class A Common Stock the common stock or
substantially equivalent equity securities of any subsidiary of the
Corporation, the Board of Directors shall have power, but shall not be
obligated, to capitalize or recapitalize such subsidiary with classes
of common equity having the powers, designations, preferences, and
relative, participating, optional, or other special rights and
qualifications, limitations, and restrictions thereof, corresponding,
respectively, insofar as practicable, to those of the Common Stock and
the Class A Common Stock, and the Board of Directors of the Corporation
shall have the power, but shall not be obligated, to distribute to the
holders of shares of the Common Stock, the shares of the subsidiary
with rights corresponding to those of the Common Stock, and to
distribute to the holders of shares of the Class A Common Stock, the
shares of the subsidiary with rights corresponding to those of the
Class A Common Stock; provided, that holders of shares of Common Stock
and holders of shares of Class A Common Stock shall respectively
receive the same number of shares of such subsidiary per share of
Common Stock and per share of Class A Common Stock held.
2. Rights on Liquidation. In the event of any liquidation, dissolution
or winding-up of the Corporation, whether voluntary or involuntary,
after the payment or setting apart for payment to the holders of any
outstanding Preferred Stock of the full preferential amounts to which
such holders are entitled as herein provided or referred to, all of the
remaining assets of the Corporation shall belong to and be distributable
in equal amounts per share to the holders of the Common Stock and the
holders of Class A Common Stock, as if such classes constituted a single
class. For purposes of this paragraph 2, a consolidation or merger of
the Corporation with any other corporation, or the sale, transfer or
lease of all or substantially all its assets shall not constitute or be
deemed a liquidation, dissolution or winding-up of the Corporation.
3. Conversion of Class A Common Stock.
3.1. The holders of Class A Common Stock shall have the right, at their
option, to convert any or all such shares into shares of Common Stock of
the Corporation on the following terms and conditions:
(i) Each share of Class A Common Stock shall be convertible, at
any time, at the office of any transfer agent for shares of
Common Stock of the Corporation, and at such other place or
places, if any, as the Board of Directors may determine, into one
fully paid and nonassessable share of Common Stock of the
Corporation upon surrender at such office or other place of the
certificate or certificates representing the shares of Class A
Common Stock so to be converted. In no event, upon conversion of
any shares of Class A Common Stock into shares of Common Stock,
shall any allowance or adjustment be made in respect of dividends
on the Class A Common Stock or the Common Stock.
(ii) Shares of Class A Common Stock shall be deemed to have been
converted and the person converting the same shall become a
holder of shares of Common Stock for the purpose of receiving
dividends and for all other purposes whatsoever as of the date
when the certificate or certificates for the shares of Class A
Common Stock to be converted are surrendered to the Corporation
as provided in paragraph 3.1(v).
(iii) A number of shares of Common Stock sufficient to provide,
upon the basis hereinbefore set forth, for the conversion of all
shares of the Class A Common Stock outstanding shall at all times
be reserved by the Corporation for the exercise of the conversion
rights of the holders of shares of the Class A Common Stock.
(iv) If the Corporation shall, at any time, be consolidated or
merged with, or shall sell its property as an entirety or
substantially as an
entirety to, any other corporation or corporations, or in the
event of any recapitalization or reclassification of its shares,
proper provisions shall be made as a part of the terms of each
such consolidation, merger, sale, recapitalization or
reclassification so that the holder of any shares of the Class A
Common Stock outstanding immediately prior to such
consolidation, merger, sale, recapitalization or
reclassification shall thereafter be entitled to and only
entitled to conversion rights upon the terms and with respect to
such securities of the consolidated, merged or purchasing
corporation, or with respect to such securities issued upon such
recapitalization or reclassification, as such holder would have
been entitled to receive upon such consolidation, merger, sale,
recapitalization or reclassification if such holder had
exercised the conversion privilege immediately prior thereto.
The provisions of this paragraph 3.1(iv) shall similarly apply
to successive consolidations, mergers, sales, recapitalizations
or reclassifications.
(v) Before any holder of Class A Common Stock shall be entitled
to convert the same into Common Stock, he shall surrender his
certificate or certificates for such Class A Common Stock to the
Corporation at the office of a transfer agent for the Common
Stock, or at such other place or places, if any, as the Board of
Directors may determine, duly endorsed or accompanied if
appropriate by duly executed instruments of transfer and shall
give written notice to the Corporation at said office or place
that he elects so to convert the shares of Class A Common Stock
represented by the certificate or certificates so surrendered.
Unless the Common Stock is to be issued in the name of the
registered owner of the certificates surrendered, the holder
shall state in writing the name or names in which he wishes the
certificate or certificates for Common Stock to be issued, and
shall furnish all requisite stock transfer and stock issuance
tax stamps, or funds therefor. The Corporation shall as soon as
practicable after such deposit of certificates for Class A
Common Stock, accompanied by the written notice above
prescribed, issue and deliver, at the office or place at which
such certificates were deposited, to the person for whose
account Class A Common Stock was so surrendered, or to his
nominee or nominees, certificates for the number of full shares
of Common Stock to which he shall be entitled as aforesaid.
3.2. All outstanding shares of Class A Common Stock shall automatically,
without any act or deed on the part of the Corporation or any other
person, be converted into shares of Common Stock on a share-for-share
basis (i) at any time after the Distribution when the total number of
shares of Class A Common Stock outstanding and reserved for issuance
upon exercise of employee stock options is less than 10,000,000; (ii) on
February 23, 1997, the tenth anniversary of the record date for the
initial issuance of Oldco
Class A Common Stock unless prior thereto the Board of Directors shall
have extended the date for such conversion on one or more occasions but
in no event to a date later than February 23, 2002; (iii) if at any time
the Board of Directors, in its sole discretion, determines that there
has been a material adverse change in the liquidity, marketability, or
market value of the outstanding Common Stock due to a delisting of the
Common Stock from a national securities exchange or a national
over-the-counter listing or due to requirements under applicable state
securities laws in any such case attributable to the existence of the
Class A Common Stock; or (iv) if the Board of Directors, in its sole
discretion, elects to effect a conversion in connection with its
approval of any sale or lease of all or substantially all of the
Corporation's assets or any merger, consolidation, liquidation or
dissolution of the Corporation. In the event of any such automatic
conversion, each stock certificate theretofore representing Class A
Common Stock will thereafter represent the same number of shares of
Common Stock.
3.3. The provisions of this paragraph 3 shall be in addition to the
provisions of paragraphs 5.1(i)(A)(3), 5.1(ii) and 5.1(iv), which
require automatic conversion of Class A Common Stock in the
circumstances provided therein.
3.4. Shares of the Class A Common Stock converted into Common Stock as
provided in paragraph 3.1 or paragraph 5 shall resume the status of
authorized but unissued shares of Class A Common Stock. Upon any
automatic conversion of Class A Common Stock into Common Stock pursuant
to paragraph 3.2, the Class A Common Stock shall no longer be authorized
for issuance.
4. Voting.
4.1. Except as otherwise provided by the laws of the State of Delaware
or by this Article Fourth, each share of Common Stock shall entitle the
holder thereof to one vote.
4.2. Except as otherwise provided by the laws of the State of Delaware
or by this Article Fourth, each share of Class A Common Stock shall
entitle the holder thereof to ten votes. Except as otherwise provided
herein or required by law, holders of Common Stock and Class A Common
Stock shall at all times vote on all matters (including the election of
directors) together as one class and together with the holders of any
other series or class of stock of the Corporation accorded such class
voting right.
4.3. The affirmative vote of the holders of a majority of the
outstanding shares of Common Stock and of Class A Common Stock, each
voting separately as a class, shall be required to:
(i) authorize additional shares of Class A Common Stock;
(ii) modify or eliminate the last sentence of paragraph 1.1,
above; or
(iii) adopt any other amendment hereof that alters or changes
the designations or powers or the preferences, qualifications,
limitations, restrictions or the relative or special rights of
either the Common Stock or the Class A Common Stock so as to
affect holders of shares of such class adversely.
5. Limitations on Transfer and Issuance of Class A Common Stock.
5.1. (i) No person holding any share of Class A Common Stock may
transfer, and the Corporation shall not register the transfer of such
share of Class A Common Stock or any interest therein, whether by sale,
assignment, gift, bequest, appointment or otherwise, except to a
"Permitted Transferee" of such person. The term "Permitted Transferee"
shall mean only,
(A) In the case of a holder of Class A Common Stock (a
"Holder") who is a natural person and the holder of record
and beneficial owner of shares subject to a proposed
transfer, "Permitted Transferee" means: (1) The Holder,
the spouse of such Holder, any lineal descendant of a
grandparent of such Holder, or any spouse of such lineal
descendant (herein collectively referred to as "such
Holder's Family Members"); (2) The trustee of a trust
solely for the benefit of such Holder or such Holder's
Family Members, provided that such trust may also grant a
general or special power of appointment to one or more of
such Holder's Family Members and may permit trust assets
to be used to pay taxes, legacies and other obligations of
the trust or of the estates of one or more of such
Holder's Family Members payable by reason of the death of
any of such Family Members; (3) A corporation if all of
the outstanding capital stock of such corporation is
beneficially owned by, or a partnership if all of the
partners are and all of the partnership interests are
beneficially owned by, the Holder and his Permitted
Transferees determined under this paragraph 5.1(i)(A),
provided that if by reason of any change in the ownership
of such stock or partners or partnership interests, such
corporation or partnership would no longer qualify as a
Permitted Transferee of such Holder or his Permitted
Transferees, all shares of Class A Common Stock then held
by such corporation or partnership shall immediately and
automatically, without further act or deed on the part of
the
Corporation or any other person, be converted into shares
of Common Stock on a share-for-share basis, and stock
certificates formerly representing such shares of Class A
Common Stock shall thereupon and thereafter be deemed to
represent the like number of shares of Common Stock; (4) An
organization established by the Holder or such Holder's
Family Members, contributions to which are deductible for
federal income, estate or gift tax purposes; or (5) The
executor, administrator or personal representative of the
estate of such Holder or the guardian or conservator of
such Holder adjudged disabled by a court of competent
jurisdiction, acting in his capacity as such.
(B) In the case of a Holder holding the shares subject to
a proposed transfer as trustee pursuant to a trust (other
than a trust described in paragraph 5.1(i)(C) below),
"Permitted Transferee" means (1) the person who
established such trust and (2) any Permitted Transferee of
such person determined pursuant to paragraph 5.1(i)(A)
above.
(C) In the case of a Holder holding shares subject to a
proposed transfer as trustee pursuant to a trust which was
irrevocable on the Distribution Record Date, "Permitted
Transferee" means (1) any person to whom or for whose
benefit principal may be distributed either during or at
the end of the term of such trust whether by power of
appointment or otherwise (excluding beneficiaries of any
employee benefit plan) and (2) any Permitted Transferee of
any such person determined pursuant to paragraph 5.1(i)(A)
above.
(D) In the case of a Holder which is a partnership or
corporation, with respect to shares of Class A Common
Stock beneficial ownership of which was acquired pursuant
to the Distribution or thereafter pursuant to a dividend
paid in shares of Class A Common Stock or a split,
subdivision or combination of shares of Class A Common
Stock, "Permitted Transferee" means (1) any partner of
such partnership, or shareowner of such corporation,
receiving such shares pro rata to his interest in such
partnership or stock ownership in such corporation on the
Distribution Record Date pursuant to a liquidating
distribution or a dividend or (2) any Permitted Transferee
of any partner or shareowner to the extent that he is a
Permitted Transferee pursuant to the foregoing clause (1)
determined under paragraph 5.1(i)(A) above.
(E) In the case of a Holder which is a corporation or
partnership, with respect to shares of Class A Common
Stock other than as described in paragraph 5.1(i)(D),
"Permitted Transferee" means (1) any person who
transferred to such corporation or partnership the shares
that are the subject of the proposed transfer and (2) any
Permitted Transferee of any such person determined under
paragraph 5.1(i)(A) above.
(F) In the case of a Holder which is an employee benefit
or stock ownership plan for the benefit of employees of
the Corporation or any of its subsidiaries, "Permitted
Transferee" shall include any beneficiary of such plan to
whom shares of stock of the Corporation may be
distributed, but only as to shares so distributable.
(G) In the case of a Holder who is the executor,
administrator or personal representative of the estate of
a deceased Holder, guardian or conservator of the estate
of a disabled Holder or who is a trustee of the estate of
a bankrupt or insolvent Holder, and provided such
deceased, disabled, bankrupt or insolvent Holder, as the
case may be, was the record and beneficial owner of the
shares subject to a proposed transfer, "Permitted
Transferee" means a Permitted Transferee of such deceased,
disabled, bankrupt or insolvent Holder as determined
pursuant to paragraph 5.1(i)(A), (D) or (E) above, as the
case may be.
(ii) Notwithstanding anything to the contrary set forth herein,
any holder of Class A Common Stock may pledge his shares of Class
A Common Stock to a pledgee pursuant to a bona fide pledge of
such shares as collateral security for indebtedness due to the
pledgee, provided that such shares may not be transferred to or
registered in the name of the pledgee unless such pledgee is a
Permitted Transferee. In the event of foreclosure or other
similar action by the pledgee, such pledged shares of Class A
Common Stock shall automatically, without any act or deed on the
part of the Corporation or any other person, be converted into
shares of Common Stock on a share-for-share basis, unless within
five business days after such foreclosure or similar event such
pledged shares are returned to the pledgor or transferred to a
Permitted Transferee of the pledgor.
(iii) For purposes of this paragraph 5.1:
(A) The relationship of any person that is derived by or
through legal adoption shall be considered a natural one.
(B) Each joint owner of shares of Class A Common Stock
shall be considered a Holder of such shares.
(C) A minor for whom shares of Class A Common Stock are
held pursuant to a Uniform Gifts to Minors Act or similar
law shall be considered a Holder of such shares.
(D) Unless otherwise specified, the term "person" means
both natural persons and legal entities.
(iv) Any purported transfer of Class A Common Stock other than to
a Permitted Transferee shall automatically, without any further
act or deed on the part of the Corporation or any other person,
result in the conversion of such shares into shares of Common
Stock on a share-for-share basis, effective on the date of such
purported transfer. The Corporation may, as a condition to
transfer or registration of transfer of shares of Class A Common
Stock to a purported Permitted Transferee, require that the
record holder establish to the satisfaction of the Corporation,
by filing with the transfer agent an appropriate affidavit or
certificate or such other proof as the Corporation shall deem
necessary, that such transferee is a Permitted Transferee.
5.2. Anything in this Article Fourth to the contrary notwithstanding, no
share of Class A Common Stock may be held of record but not beneficially
by a broker or dealer in securities, a bank or voting trustee or a
nominee of any such, or otherwise held of record but not beneficially by
a nominee of the beneficial owner of such share other than by an
employee benefit or stock ownership plan of the Corporation (any such
form of holding being referred to herein as holding in "street" or
nominee name) and the Corporation shall issue a share of Common Stock
for each share of Class A Common Stock that would otherwise be issuable
to such nominee in any instance in which the Corporation reasonably
believes that the proposed record holder intends to hold any such share
in "street" or nominee name for the beneficial owner thereof; provided,
however, that if any person establishes to the satisfaction of the
Corporation in accordance with this paragraph 5.2 that he is the
beneficial owner of any such share of Class A Common Stock, the
Corporation shall issue such share in the name of such beneficial owner.
Any such beneficial owner who desires to have shares of Class A Common
Stock issued in his name under the circumstances described in this
paragraph 5.2 shall file an affidavit or certificate with the Secretary
of the Corporation setting forth the name and address of such beneficial
owner and certifying that he is the beneficial owner of shares of Oldco
Class A Common Stock held in "street" or nominee name in respect of
which the shares of Class A Common Stock are to be issued. Any such
affidavit or certificate shall be deemed filed only if it is
satisfactory in form to the Corporation and
received within 30 days after the Distribution Record Date. If such
affidavit or certificate shall not establish to the satisfaction of the
Corporation the facts stated therein, then the Corporation shall issue
to such beneficial owner Common Stock as provided in this paragraph 5.2.
5.3. The Corporation shall note on the certificates representing the
shares of Class A Common Stock that there are restrictions on transfer
and registration of transfer imposed by paragraphs 5.1 and 5.2.
5.4. (i) For purposes of this paragraph 5, "beneficial ownership"
shall mean possession of the power to vote or to direct the vote
and to dispose of or to direct the disposition of the share of
Class A Common Stock in question, and a "beneficial owner" of a
share of Class A Common Stock shall be the person having
beneficial ownership thereof.
(ii) The Board of Directors may, from time to time, establish
practices and procedures and promulgate rules and regulations, in
addition to those set forth in this Article Fourth, and amend or
revoke any such, regarding the evidence necessary to establish
entitlement of any transferee or purported transferee of Class A
Common Stock to be registered as such. Should the transferee or
purported transferee of any share wish to contest any decision of
the Corporation on the question whether the transferee or
purported transferee has established entitlement to be registered
as a transferee of Class A Common Stock, then the Board of
Directors shall in its sole discretion make the final
determination.
6. Other Matters. In case the Corporation shall at any time issue to the
holders of its shares of Common Stock as such options or rights to
subscribe for shares of Common Stock (including shares held in the
Corporation's treasury) or any other security (whether of the
Corporation or otherwise), the Corporation shall issue such options or
rights to the holders of the Class A Common Stock in the respective
amounts equal to the amounts that such holders would have been entitled
to receive had their respective shares of Class A Common Stock been
converted into Common Stock on the day prior to the date for the
determination of the holders of Common Stock entitled to receive such
options or rights.
PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized to provide for the
issuance of shares of Preferred Stock in series and, by filing a
certificate pursuant to the applicable law of the State of Delaware
(hereinafter referred to as a "Preferred Stock Designation"), to
establish from time to time the number of shares to be included in each
such series, and to fix
the designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations and restrictions
thereof. The authority of the Board of Directors with respect to each
series shall include, but not be limited to, determination of the
following:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board
of Directors may thereafter (except where otherwise provided
in the Preferred Stock Designation) increase or decrease (but
not below the number of shares thereof then outstanding);
(c) whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
(d) the dates at which dividends, if any, shall be payable;
(e) the redemption rights and price or prices, if any, for
shares of the series;
(f) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series;
(g) the amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation;
(h) whether the shares of the series shall be convertible into
shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the
specification of such other class or series or such other
security, the conversion price or prices or rate or rates, any
adjustments thereof, the date or dates as of which such shares
shall be convertible and all other terms and conditions upon
which such conversion may be made;
(i) restrictions on the issuance of shares of the same series
or of any other class or series; and
(j) the voting rights, if any, of the holders of shares of the
series.
Except as may be provided in this Certificate of Incorporation or in a
Preferred Stock Designation, the Common Stock and the Class A Common
Stock shall have the exclusive right to vote for the election of
directors and for all other purposes, and holders of Preferred Stock
shall not be entitled to receive notice of any meeting of shareowners at
which they are not entitled to vote. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the outstanding Common Stock and Class A
Common Stock, without a vote of the holders of the Preferred Stock, or
of any series thereof, unless a vote of any such holders is required
pursuant to any Preferred Stock Designation.
The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes
and shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not
the Corporation shall have notice thereof, except as expressly provided
by applicable law.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
1. Designation and Amount. A series of Preferred Stock, without par
value, is hereby created and shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock") and the
number of shares constituting the Series A Preferred Stock shall be
2,500,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Preferred Stock to a number
less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Preferred Stock.
2. Dividends and Distributions.
2.1. Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of
shares of Series A Preferred Stock, in preference to the holders of
Common Stock or Class A Common Stock, and of any other junior stock of
the Corporation, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the second Monday of
March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of
(a) $1 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends,
and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or Class A Common Stock or a
subdivision of the outstanding
shares of Common Stock or Class A Common Stock (by reclassification or
otherwise), declared on the Common Stock or Class A Common Stock since
the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred
Stock. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock then in each such case the
amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
2.2. The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph 2.1 immediately after
it declares a dividend or distribution on the Common Stock (other than
a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
2.3. Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, unless the date
of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Preferred Stock
in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon,
which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
3.1. Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the shareowners of
the Corporation. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
3.2. Except as otherwise provided herein, in any other Preferred Stock
Designation creating a series of Preferred Stock or any similar stock,
or by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and Class A Common Stock and any
other capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a vote of
shareowners of the Corporation.
3.3. Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock and Class A Common Stock
as set forth herein) for taking any corporate action.
4. Certain Restrictions.
4.1. Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in paragraph 2 are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall
not:
(a) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or
upon
liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(b) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except dividends paid ratably on
the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then
entitled;
(c) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(d) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith
will result in fair and equitable treatment among the respective
series or classes.
4.2. The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock
of the Corporation unless the Corporation could, under subparagraph (a)
of paragraph 4.1, purchase or otherwise acquire such shares at such time
and in such manner.
5. Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall
be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance
set forth herein, in the Certificate of Incorporation, or in any other
Preferred Stock Designation creating a series of Preferred Stock or any
similar stock or as otherwise required by law.
6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be
made (i) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, provided that the holders
of shares of Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (ii) to
the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon
such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (i) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to
such event.
7. Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each
share of Series A Preferred Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into
a greater or lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
9. Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
10. Amendment. The Certificate of Incorporation of the Corporation shall
not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so
as to affect them adversely without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Series A Preferred
Stock, voting together as a single class.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the shareowners of the Corporation shall not be
subject to the payment of corporate debts to any extent whatever.
SEVENTH: Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, the number of
directors of the Corporation shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the whole
Board. A director need not be a shareowner. The election of directors of the
Corporation need not be by ballot unless the by-laws so require.
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 provided herein or
in any Preferred Stock Designation, 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 shareowners to be held in
1997, another class shall be initially elected for a term expiring at the annual
meeting of shareowners to be held in 1998, and another class shall be initially
elected for a term expiring at the annual meeting of shareowners to be held in
1999. Members of each class shall hold office until their successors are elected
and shall have qualified. At each annual meeting of the shareowners of the
Corporation, commencing with the 1997 annual meeting, 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 shareowners held in the third year following
the year of their election.
Subject to the rights of the holders of any series of Preferred Stock, and
unless the Board of Directors otherwise determines, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
only by a majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring at the
annual meeting of shareowners at which the term of office of the class to which
they have been elected expires and until such director's successor shall have
been duly elected and qualified. No decrease in the number of authorized
directors constituting the whole Board of Directors shall shorten the term of
any incumbent director.
Subject to the rights of the holders of any series of Preferred Stock or any
other series or class of stock, as provided herein or in any Preferred Stock
Designation, to elect additional directors under specific circumstances, any
director may be removed from office at any time, but only for cause and only by
the affirmative vote of the holders of at least 80 percent of the voting power
of the then outstanding capital stock of the Corporation (the "Capital Stock")
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class.
No director of the Corporation shall be liable to the Corporation or its
shareowners for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its shareowners, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. This paragraph
shall not eliminate or limit the liability of a director for any act or omission
occurring prior to the effective date of its adoption. No repeal or modification
of this paragraph, directly or by adoption of an inconsistent provision of this
Certificate of Incorporation, by the shareowners of the Corporation shall be
effective with respect to any cause of action, suit, claim or other matter that,
but for this paragraph, would accrue or arise prior to such repeal or
modification.
EIGHTH: Unless otherwise determined by the Board of Directors, no holder of
stock of the Corporation shall, as such holder, have any right to purchase or
subscribe for any stock of any class which the Corporation may issue or sell,
whether or not exchangeable for any stock of the Corporation of any class or
classes and whether out of unissued shares authorized by the Certificate of
Incorporation of the Corporation as originally filed or by any amendment thereof
or out of shares of stock of the Corporation acquired by it after the issue
thereof.
NINTH: 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
shareowners 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 shareowner thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of 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 the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the shareowners or class of shareowners 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 shareowners or class of shareowners 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 shareowners or class of
shareowners, of this Corporation, as the case may be, and also on this
Corporation.
TENTH:
1. Amendment of Certificate of Incorporation. From time to time any of the
provisions of the Certificate of Incorporation may be amended, altered or
repealed, and other provisions authorized by the statutes of the State of
Delaware at the time in force may be added or inserted in the manner at the time
prescribed by said statutes, and all rights at any time conferred upon the
shareowners of the Corporation by its Certificate of Incorporation are granted
subject to the provisions of this Article Tenth. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the voting power of the then outstanding
Voting Stock, voting together as a single class, shall be required to amend or
repeal Article Seventh, this Article Tenth or Article Twelfth or adopt any
provision inconsistent with any of the foregoing articles.
2. By-laws. The Board of Directors is expressly authorized to make, alter, amend
and repeal the by-laws of the Corporation, in any manner not inconsistent with
the laws of the State of Delaware or of the Certificate of Incorporation of the
Corporation, subject to the power of the holders of the Capital Stock to alter
or repeal the by-laws made by the Board of Directors; provided, that any such
amendment or repeal by shareowners shall require the affirmative vote of the
holders of at least 80% of the voting power of the then outstanding Voting
Stock, voting together as a single class.
ELEVENTH: The shareowner vote required to approve Business Combinations (as
hereinafter defined) shall be as set forth in this Article Eleventh.
1. Higher Vote for Business Combinations. In addition to any affirmative
vote required by law, this Certificate of Incorporation or the by-laws
of the
Corporation, and except as otherwise expressly provided in Section 2 of
this Article Eleventh, a Business Combination shall not be consummated
without the affirmative vote of the holders of at least 80% of the
combined voting power of the then outstanding shares of the Voting
Stock, voting together as a single class. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that
a lesser percentage or separate class vote may be specified, by law or
in any agreement with any national securities exchange or otherwise.
2. When Higher Vote Is Not Required. The provisions of Section 1 of this
Article Eleventh shall not be applicable to a Business Combination if
the conditions specified in either of the following paragraphs A or B
are met.
A. Approval by Continuing Directors. The Business Combination
shall have been approved by at least two-thirds of the Continuing
Directors (as hereinafter defined), whether such approval is made
prior to or subsequent to the date on which the Interested
Shareowner (as hereinafter defined) became an Interested
Shareowner (the "Determination Date").
B. Price and Procedure Requirements. Each of the seven conditions
specified in the following subparagraphs (i) through (vii) shall
have been met:
(i) The aggregate amount of the cash and the Fair Market
Value (as hereinafter defined) as of the date of the
consummation of the Business Combination (the
"Consummation Date") of any consideration other than cash
to be received per share by holders of Common Stock in
such Business Combination shall be an amount at least
equal to the higher amount determined under clauses (a)
and (b) below (the requirements of this paragraph B (i)
shall be applicable with respect to all shares of Common
Stock outstanding, whether or not the Interested
Shareowner has previously acquired any shares of the
Common Stock): (a) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Shareowner for any shares of Common Stock acquired
beneficially by it (1) within the two-year period
immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement
Date") or (2) in the transaction in which it became an
Interested Shareowner, whichever is higher, plus interest
compounded annually from the Determination Date through
the Consummation Date at the prime rate of interest of
Morgan Guaranty Trust Company of New York (or other major
bank headquartered in New York City selected
by at least two-thirds of the Continuing Directors) from
time to time in effect in New York City, less the aggregate
amount of any cash dividends paid, and the Fair Market
Value of any dividends paid in other than cash, per share
of Common Stock from the Determination Date through the
Consummation Date in an amount up to but not exceeding the
amount of such interest payable per share of Common Stock;
and (b) the Fair Market Value per share of Common Stock on
the Announcement Date or on the Determination Date,
whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market
Value as of the Consummation Date of any consideration
other than cash to be received per share by holders of
shares of any class or series of outstanding Capital Stock,
other than the Common Stock, in such Business Combination
shall be an amount at least equal to the highest amount
determined under clauses (a), (b) and (c) below (the
requirements of this paragraph B(ii) shall be applicable
with respect to all shares of every class or series of
outstanding Capital Stock, other than the Common Stock,
whether or not the Interested Shareowner has previously
acquired any shares of a particular class or series of
Capital Stock):
(a) the highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of
the Interested Shareowner for any shares of such
class or series of Capital Stock acquired
beneficially by it (1) within the two-year period
immediately prior to the Announcement Date or (2)
in the transaction in which it became an Interested
Shareowner, whichever is higher, plus interest
compounded annually from the Determination Date
through the Consummation Date at the prime rate of
interest of Morgan Guaranty Trust Company of New
York (or other major bank headquartered in New York
City selected by at least two-thirds of the
Continuing Directors) from time to time in effect
in New York City, less the aggregate amount of any
cash dividends paid, and the Fair Market Value of
any dividends paid in other than cash, per share of
such class or series of Capital Stock from the
Determination Date through the Consummation Date in
an amount up to but not exceeding the amount of
such interest payable per share of such class or
series of Capital Stock; and
(b) the Fair Market Value per share of such class
or series of Capital Stock on the Announcement Date
or on the Determination Date, whichever is higher;
and
(c) the highest preferential amount per share to
which the holders of shares of such class or series
of Capital Stock would be entitled in the event of
any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
Corporation, regardless of whether the Business
Combination to be consummated constitutes such an
event.
(iii) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock
(including Common Stock) shall be in cash or in the same
form as previously has been paid by or on behalf of the
Interested Shareowner in its direct or indirect
acquisition of beneficial ownership of shares of such
class or series of Capital Stock. If the consideration so
paid for shares of any class or series of Capital Stock
varied as to form, the form of consideration for such
class or series of Capital Stock shall be either cash or
the form used to acquire beneficial ownership of the
largest number of shares of such class or series of
Capital Stock previously acquired by the Interested
Shareowner.
(iv) After such Interested Shareowner has become an
Interested Shareowner and prior to the consummation of
such Business Combination, such Interested Shareowner
shall not have become the beneficial owner of any
additional shares of Capital Stock except as part of the
transaction that results in such Interested Shareowner
becoming an Interested Shareowner and except in a
transaction that, after giving effect thereto, would not
result in any increase in the Interested Shareowner's
percentage beneficial ownership of any class or series of
Capital Stock; and, except as approved by at least
two-thirds of the Continuing Directors: (a) there shall
have been no failure to declare and pay at the regular
date therefor any full quarterly dividends (whether or not
cumulative) payable in accordance with the terms of any
outstanding Capital Stock; (b) there shall have been no
reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any stock
split, stock dividend or subdivision of the Common Stock);
and (c) there shall have been an increase in the annual
rate of dividends paid on the Common Stock as necessary to
reflect any reclassification (including any reverse stock
split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing the number
of outstanding shares of Common Stock.
(v) After such Interested Shareowner has become an
Interested Shareowner, such Interested Shareowner shall
not have received the benefit, directly or indirectly
(except proportionately as a shareowner of the
Corporation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits
or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such
Business Combination or otherwise.
(vi) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations)
shall be mailed to all shareowners of the Corporation at
least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act
or subsequent provisions). The proxy or information
statement shall contain on the first page thereof, in a
prominent place, any statement as to the advisability of
the Business Combination that the Continuing Directors,
or any of them, may choose to make and, if deemed
advisable by at least two-thirds of the Continuing
Directors, the opinion of an investment banking firm
selected for and on behalf of the Corporation by at
least two-thirds of the Continuing Directors as to the
fairness of the terms of the Business Combination from a
financial point of view to the holders of the
outstanding shares of Capital Stock other than the
Interested Shareowner and its Affiliates or Associates
(as hereinafter defined).
(vii) Such Interested Shareowner shall not have made any
material change in the Corporation's business or equity
capital structure without the approval of at least
two-thirds of the Continuing Directors.
Any Business Combination to which Section 1 of this Article
Eleventh shall not apply by reason of this Section 2 shall
require only such affirmative vote as is required by law, any
other provision of this Certificate of Incorporation, the by-laws
of the Corporation or any agreement with any national securities
exchange.
3. Certain Definitions. For the purposes of this Article Eleventh:
A. A "Business Combination" shall mean:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Shareowner or (ii) any other corporation (whether or not itself
an Interested Shareowner) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an
Interested Shareowner; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) to or with any Interested Shareowner or any
Affiliate or Associate of any Interested Shareowner involving any
assets or securities of the Corporation, any Subsidiary or any
Interested Shareowner or any Affiliate or Associate of any
Interested Shareowner having an aggregate Fair Market Value of
$25,000,000 or more; or
(iii) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested Shareowner or any Affiliate or Associate of any
Interested Shareowner; or
(iv) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or
into or otherwise involving an Interested Shareowner) that has
the effect, directly or indirectly, of increasing the
proportionate share of any class or series of Capital Stock, or
any securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any
Interested Shareowner or any Affiliate or Associate of any
Interested Shareowner; or
(v) any agreement, contract, arrangement or other understanding
providing for any one or more of the actions specified in clauses
(i) through (iv) above.
B. A "person" shall mean any individual, firm, corporation or other
entity and shall include any group composed of any person and any other
person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing
of Capital Stock.
C. "Interested Shareowner" shall mean any person (other than the
Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the
Corporation or any
Subsidiary or any trustee of or fiduciary with respect to any such plan
when acting in such capacity) who or which:
(i) is the beneficial owner of Voting Stock having 10% or more of
the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or
(ii) is an Affiliate or Associate of the Corporation and at any
time within the two-year period immediately prior to the date in
question was the beneficial owner of Voting Stock having 10% or
more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by
any Interested Shareowner, if such assignment or succession shall
have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
D. A person shall be a "beneficial owner" of any Capital Stock:
(i) which such person or any Affiliate or Associate of such person
beneficially owns, directly or indirectly; or
(ii) which such person or any Affiliate or Associate of such
person has, directly or indirectly, (a) the right to acquire
(whether such right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any
shares of Capital Stock.
E. For the purposes of determining whether a person is an Interested
Shareowner pursuant to paragraph C of this Section 3, the number of
shares of Capital Stock deemed to be outstanding shall include shares
deemed owned by the Interested Shareowner through application of
paragraph D of this Section 3 but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
F. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
October 28, 1996 (the term "registrant" in such Rule 12b-2 meaning in
this case the Corporation).
G. "Subsidiary" means any corporation of which a majority of any class
of equity security is beneficially owned by the Corporation; provided,
however, that for the purposes of the definition of Interested
Shareowner set forth in paragraph C of this Section 3, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is beneficially owned by the Corporation.
H. "Continuing Director" means any member of the Board of Directors of
the Corporation (the "Board") who is not an Affiliate or Associate or
representative of the Interested Shareowner and was a member of the
Board prior to the time that the Interested Shareowner became an
Interested Shareowner, and any successor of a Continuing Director who is
not an Affiliate or Associate or representative of the Interested
Shareowner and is recommended or elected to succeed a Continuing
Director by at least two-thirds of Continuing Directors then members of
the Board.
I. "Fair Market Value" means: (i) in the case of cash, the amount of
such cash; (ii) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on
such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such stock
is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock
during the 30-day period immediately preceding the date in question on
the National Association of Securities Dealers, Inc., Automated
Quotations System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a share
of such stock as determined in good faith by at least two-thirds of the
Continuing Directors; and (iii) in the case of property other than cash
or stock, the fair market value of such property on the date in question
as determined in good faith by at least two-thirds of the Continuing
Directors.
J. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as
used in paragraphs B(i) and (ii) of Section 2 of this Article Eleventh
shall include the shares of Common Stock and/or the shares of any other
class or series of Capital Stock retained by the holders of such shares.
4. Powers of Continuing Directors. Any determination as to compliance
with this Article Eleventh, including without limitation (A) whether a
person is an Interested Shareowner, (B) the number of shares of Capital
Stock or other securities beneficially owned by any person, (C) whether a
person is an Affiliate or Associate of another, (D) whether the
requirements of paragraph B of Section 2 have been met with respect to
any Business Combination, and (E) whether the assets that are the subject
of any Business Combination have, or the consideration to be received for
the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market
Value of $25,000,000 or more shall be made only upon action by not less
than two-thirds of the Continuing Directors of the Corporation; and the
good faith determination of at least two-thirds of the Continuing
Directors on such matters shall be conclusive and binding for all the
purposes of this Article Eleventh.
5. No Effect on Fiduciary Obligations. Nothing contained in this Article
Eleventh shall be construed to relieve the Board of Directors or any
Interested Shareowner from any fiduciary obligation imposed by law.
6. Amendment, Repeal, etc. Notwithstanding any other provisions of this
Certificate of Incorporation or the by-laws of the Corporation (and
notwithstanding the fact that a lesser percentage or separate class vote
may be specified by law, this Certificate of Incorporation or the by-laws
of the Corporation), the affirmative vote of the holders of at least 80%
of the voting power of the then outstanding shares of Voting Stock,
voting together as a single class, shall be required to amend or repeal,
or adopt any provisions inconsistent with, this Article Eleventh;
provided, however, that the preceding provisions of this Section 6 shall
not apply to any amendment to this Article Eleventh, and such amendment
shall require only such affirmative vote as is required by law and any
other provisions of this Certificate of Incorporation or the by-laws of
the Corporation, if such amendment shall have been approved by at least
two-thirds of the members of the Board who are persons who would be
eligible to serve as Continuing Directors.
TWELFTH: Any action required or permitted to be taken by the shareowners shall
be taken only at an annual or special meeting of such shareowners and not by
consent in writing. Special meetings of the shareowners for any purpose or
purposes shall be called only by the Board of Directors pursuant to a resolution
adopted by a majority of the whole Board.