EXHIBIT 3(i)a
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
COMMERCIAL METALS COMPANY
COMMERCIAL METALS COMPANY, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation", DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, at a meeting
duly held, adopted resolutions setting forth the following amendment to the
Corporation's Restated Certificate of Incorporation, declaring this amendment to
be advisable and designating the next annual meeting of the stockholders of the
Corporation for consideration thereof:
The present Article Seventeenth of the Corporation's Restated
Certificate of Incorporation shall be replaced in its entirety by the following:
SEVENTEENTH: The stockholder vote required to approve any Business
Combination (as hereinafter defined) shall be as set forth in this Article
Seventeenth:
(a)(1) Except as otherwise expressly provided in paragraph (b) of this
Article Seventeenth:
(A) Any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the corporation or any
Subsidiary having an aggregate Fair Market Value (as hereinafter
defined) of $25,000,000 or more; or
(C) the issuance or transfer by the corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $25,000,000 or more; or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any Interested Stockholder;
or
(E) any reclassification of securities (including any reverse
stock split) or recapitalization of the corporation, or any merger or
consolidation of the corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
any Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder or any Affiliate of any Interested
Stockholder;
shall require the affirmative vote of the holders of at least 70% of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class (it being understood that for purposes of this Article
Seventeenth, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article Fourth of this Restated Certificate of
Incorporation). Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or otherwise, and
shall be required in addition to any affirmative vote of the holders of any
particular class or series of Voting Stock required by law or this Restated
Certificate of Incorporation.
(2) The term "Business Combination" as used in this Article Seventeenth
shall mean any transaction which is referred to in any one or more of
subsections (A) through (E) of subparagraph (1) of this section (a).
(b) The provisions of section (a) of this Article Seventeenth shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law, by
any other provision of this Restated Certificate of Incorporation or by any
agreement with any national securities exchange, if, in the case of a Business
Combination that does not involve any cash or other consideration being received
by the stockholders of the corporation, solely in their respective capacities as
stockholders of the corporation, the condition specified in the following
subparagraph (1) is met, or, in the case of any other Business Combination, the
conditions specified in either of the following subparagraphs (1) or (2) are
met:
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(1) The Business Combination shall have been approved by a
majority of the Disinterested Directors (as hereinafter defined), it
being understood that this condition shall not be capable of
satisfaction unless there is at least one Disinterested Director.
(2) All of the following conditions shall have been met:
(A) The consideration to be received by holders of
shares of a particular class of outstanding Voting Stock shall
be in cash or in the same form as the Interested Stockholder
has paid for shares of such class of Voting Stock within the
two-year period ending on and including the date on which the
Interested Stockholder became an Interested Stockholder (the
"Determination Date"). If, within such two-year period, the
Interested Stockholder has paid for shares of any class of
Voting Stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of
such class of Voting Stock shall be either cash or the form
used to acquire the largest number of shares of such class of
Voting stock acquired by the Interested Stockholder within
such two-year period.
(B) The aggregate amount of (x) the cash and (y) the
Fair Market Value, as of the date (the "Consummation Date") of
the consummation of the Business Combination, of the
consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be
at least equal to the higher of the following (it being
intended that the requirements of this subparagraph (2)(B)
shall be required to be met with respect to all shares of
Common Stock outstanding whether or not the Interested
Stockholder has previously acquired any shares of Common
Stock):
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of Common Stock
acquired by it within the two-year period immediately
prior to the date of the first public announcement of
the proposal of the Business Combination (the
"Announcement Date") or in the transaction in which
it became an Interested Stockholder, whichever is
higher, plus interest compounded annually from the
Determination Date through the Consummation Date at
the prime rate of interest of Citibank, N.A. (or such
other bank as may be selected by the Disinterested
Directors), in effect from time to time, less the
aggregate amount of any cash dividends paid, and the
Fair Market Value of any dividends paid in other than
cash, on each share of Common Stock from the
Determination Date through the Consummation Date, in
an amount up to but not exceeding the amount of
interest so payable per share of Common Stock; or
(ii) the Fair Market Value per share of
Common Stock on the Announcement Date.
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(C) The aggregate amount of (x) the cash and (y) the
Fair Market Value, as of the Consummation Date, of the
consideration other than cash to be received per share by
holders of shares of any class, other than Common Stock, of
outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the
requirements of this subparagraph (2)(C) shall be required to
be met with respect to every such class of outstanding Voting
Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting
Stock):
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of such class
of Voting Stock acquired by it within the two-year
period immediately prior to the Announcement Date or
in the transaction in which it became an Interested
Stockholder, whichever is higher, plus interest
compounded annually from the Determination Date
through the Consummation Date at the prime rate of
interest of Citibank, N.A. (or such other bank as may
be selected by the Disinterested Directors), in
effect from time to time, less the aggregate amount
of any cash dividends paid, and the Fair Market Value
of any dividends paid in other than cash, on each
share of such class of Voting Stock from the
Determination Date through the Consummation Date in
an amount up to but not exceeding the amount of
interest so payable per share of such class of Voting
Stock; or
(ii) the Fair Market Value per share of such
class of Voting Stock on the Announcement Date; or
(iii) the highest preferential amount per
share to which the holders of shares of such class of
Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the corporation.
(D) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such
Business Combination: (x) except as approved by a majority of
the Disinterested Directors, there shall have been no failure
to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any
outstanding Preferred Stock; (y) there shall have been (i) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the
Disinterested Directors, and (ii) an increase in such annual
rate of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is
approved by a majority of the Disinterested Directors; and (z)
such Interested Stockholder shall have not become the
beneficial owner of any
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additional shares of Voting Stock except as part of the
transaction which results in such Interested Stockholder's
becoming an Interested Stockholder.
(E) After such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder shall not
have received the benefit, directly or indirectly (except
proportionately as a stockholder of the corporation), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided
by the corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(F) 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 stockholders of the corporation at least 30 days prior to
the consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions).
(c) For the purposes of this Article Seventeenth:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean any person (other than
the corporation or any Subsidiary) who or which:
(A) is the beneficial owner, directly or indirectly,
of more than 10% of the voting power of the outstanding Voting
Stock; or
(B) is an Affiliate of the corporation and at any
time within the two-year period immediately prior to the date
in question was the beneficial owner, directly or indirectly,
of 10% or more of the voting power of the then-outstanding
Voting Stock; or
(C) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time within the
two-year period immediately prior to the date in question
beneficially owned by an Interested Stockholder, if such
assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933;
provided that the Trust shall not be an Interested Stockholder until such time
as the Trust shall become the beneficial owner of any shares of Voting Stock in
addition to the shares of Voting Stock of which it was the beneficial owner on
January 27, 1994; provided further that the Trust shall not become an Interested
Stockholder solely as a result of action taken solely by the corporation that
benefits all holders of Voting Stock pro rata based on their ownership of Voting
Stock.
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(3) A person shall be a "beneficial owner" of any Voting
Stock:
(A) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
(B) which such person or any of its Affiliates or
Associates has (x) 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 (y) the right to vote
pursuant to any agreement, arrangement or understanding; or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
(4) For the purposes of determining whether a person is an
Interested Stockholder pursuant to subparagraph (2) of this paragraph
(c), the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through application of subparagraph
(3) of this paragraph (c), but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement,
arrangement, or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(5) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1994.
(6) "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
corporation; provided, however, that for the purposes of the definition
of Interested Stockholder set forth in subparagraph (2) of this
paragraph (c), the term "Subsidiary" shall mean only a corporation of
which a majority of each class of equity security is owned, directly or
indirectly, by the corporation.
(7) "Disinterested Director" means any member of the board of
directors of the corporation (the "Board") who is unaffiliated with the
Interested Stockholder and was a member of the Board prior to the time
that the Interested Stockholder became an Interested Stockholder, and
any successor of a Disinterested Director who is unaffiliated with the
Interested Stockholder and is recommended to succeed a Disinterested
Director by a majority of Disinterested Directors then on the Board.
(8) "Fair Market Value" means: (x) in the case of stock, the
highest closing sales price during the 30-day period immediately
preceding the date in question of a share
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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, on the
National Market System of the National Association of Securities
Dealers, Inc. Automated Quotations System, or if such stock is not
quoted on the National Market System, the highest closing bid quotation
with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then
in use, or, if no such quotations are available, the fair market value
on the date in question of a share of such stock as determined by the
Board in good faith; and (y) in the case of property other than cash or
stock, the fair market value of such property on the date in question
as determined by the Board in good faith.
(9) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be
received" as used in subparagraphs (2) (A) and (2) (C) of paragraph (b)
of this Article Seventeenth shall include the shares of Common Stock
and/or shares of any other class of outstanding Voting Stock retained
by the holders of such shares.
(d) A majority of the total number of Disinterested Directors (whether
or not there exist any vacancies in previously authorized directorships at the
time any such determination as is hereinafter in this paragraph (d) specified is
to be made by the Board) shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article Seventeenth, including, without
limitation, (1) whether a person is an Interested Stockholder, (2) the number of
shares of Voting Stock beneficially owned by any person, (3) whether a person is
an Affiliate or Associate of another, (4) whether the applicable conditions set
forth in subparagraph (2) of paragraph (b) have been met with respect to any
Business Combination, and (5) whether the assets which 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.
(e) Nothing contained in this Article Seventeenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
(f) Unless extended pursuant to Article Twelfth of this Restated
Certificate of Incorporation, the provisions of this Article Seventeenth shall
expire and no longer be of any effect after 12 noon, Central time, on January
28, 1999.
SECOND: That thereafter, pursuant to a resolution of the Board of
Directors of the Corporation, an annual meeting of stockholders of the
Corporation was duly called and held, upon notice in accordance with Section 222
of the General Corporation Law of the State of
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Delaware, at which meeting the necessary number of shares as required by statute
were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Stanley A. Rabin, its President, and attested by David M. Sudbury, its
Secretary this 1st day of February, 1994.
COMMERCIAL METALS COMPANY
By: /s/ Stanley A. Rabin
-------------------------------
Stanley A. Rabin
President
ATTEST:
By: /s/ David M. Sudbury
-----------------------------------
David M. Sudbury
Secretary
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