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RESTATED CERTIFICATE OF INCORPORATION
OF
DOVER CORPORATION
Dover Corporation, a Delaware corporation (hereinafter called the
"Corporation"), hereby CERTIFIES:
1. The name of the corporation is DOVER CORPORATION. The date
of filing the original Certificate of Incorporation of the corporation with the
Secretary of State was April 22, 1947. The corporation was originally
incorporated under the name Rotary Equipment Company.
2. This Restated Certificate of Incorporation only restates
and integrates and does not further amend the provisions of the Certificate of
Incorporation of the corporation as heretofore amended, supplemented or restated
and there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or changes
to read as set forth in full:
FIRST: The name of the corporation is DOVER CORPORATION.
SECOND: The principal office of the corporation in the State of
Delaware is located at 1013 Centre Road, City of Wilmington, County of New
Castle, Delaware. The name of the resident agent in charge thereof is The
Prentice-Hall Corporation Systems, Inc.
THIRD: The nature of the business of the corporation and the objects or
purposes to be transacted, promoted or carried on by it are as follows:
(a) To manufacture, purchase or otherwise acquire, own, sell,
assign, lease or otherwise transfer and convey, distribute, import, export and
otherwise trade and deal in and with machines and machinery of all kinds
including oil well supplies, mining machinery, harvesting machinery and all
kinds of appliances, parts, accessories, supplies, attachments and equipment,
instruments and devices of every kind and nature consisting or partly consisting
of iron, steel, manganese, nickel, copper, coal, coke, lumber or other metals;
to own, purchase, sell, acquire, and deal in any and all appliances for the
manufacturing of machinery; and to manufacture and otherwise prepare and deal in
and with any material, machinery, appliances or supplies necessary or incident
to the manufacture of machinery, both at wholesale and retail; to own, hold,
sell, manage and operate buildings, machinery, structures, appliances and other
property, useful in the manufacture and disposal of machinery; to acquire, own,
lease, occupy or develop any land containing coal, iron, manganese, oil and gas
and other minerals; to construct bridges, buildings, engines, cars and other
equipment; and to do and perform all other acts and things necessary or
incidental to the purposes heretofore set out.
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(b) To design, manufacture, assemble, sell, lease, license,
distribute, install, service, import, export and otherwise deal in and with
piston rings and all other kinds of articles used in the manufacture, repair or
maintenance of all kinds of engines and motors, castings and forgings made of
iron, steel or any other metals or substitutes therefor, metallic or other
packings, and machines, machinery, devices, equipment, appliances, instruments,
accessories, supplies and hardware of all kinds; to develop and perfect metals
and processes of die castings; to design, make, sell and deal in and with all
kinds of cast metal articles and parts; and generally to carry on any business
relating to the production and working of metals and substitutes therefor.
(c) To manufacture, erect, build, furnish, equip, construct,
inspect, repair, maintain, operate, buy, sell and deal in and deal with
elevators, conveyors and all kinds of lifts, hoisting machinery and means and
methods of vertical transportation and all other kinds of machinery and
appliances, either as principal or through agents, including the acquisition by
purchase, manufacture or otherwise and disposition of all materials, supplies,
parts, machinery and other articles necessary or convenient for use in
connection with and in carrying on the business herein mentioned, or any part
thereof; to engage in the business of buying, selling and dealing with goods,
wares and merchandise, machinery, apparatuses, devices and appliances used in,
on or in connection with the manufacture, construction, installation,
inspection, repairing and maintaining of elevators, conveyors, lifts and
hoisting devices or machinery of any and of all kinds or otherwise; to
manufacture, purchase or otherwise acquire, hold, own, mortgage, sell, assign
and transfer, invest, trade, deal in and with any and all kinds of engines,
dynamos, generators, pumps and any and all kinds of machinery, implements or
articles of manufacture, and any and all kinds of mechanical apparatuses in any
and all countries, domestic and foreign.
(d) To carry on the business of consulting and contracting
engineers; to design and supervise the production, installation, operation and
repair of and give advice concerning engines, machinery, plants, buildings,
equipment, processes, appliances, methods and works and construction of all
kinds whatsoever, and to undertake and perform contracts for the installation,
management, construction and erection of the same.
(e) To purchase, acquire, own, lease, mortgage, establish,
design, construct, install, equip, use, sell, develop, operate, improve, repair,
manage, control and maintain factories, furnaces, shops, manufacturing plants,
mills, converters, refineries, fuel plants, lining plants, laboratories,
warehouse storage buildings, stores, buildings and all other works and
conveniences necessary or incidental to carrying out the objects and purposes of
this corporation.
(f) To carry on the business of mechanical and electrical
engineers, iron and brass founders, iron masters, builders, contractors,
millwrights, machinists, metallurgists, metal workers, iron and steel
converters, smiths and manufacturers of and dealers in machinery, engines,
motors, implements, appliances and things of every nature and kind.
(g) To carry on any business relating to the production and
working of metals and the production, manufacture and preparation of any other
metals which may be useful or conveniently combined with the manufacturing or
engineering business of
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the company or any contracts undertaken by the company and either for the
purpose only of such contracts or as an independent business.
(h) To prospect, drill and mine for, develop, produce, refine,
transport, use, acquire, sell, lease, export, import and otherwise deal in and
with, in the United States and elsewhere, petroleum, gas, and any and all other
minerals and mineral products; to acquire, own, operate, and deal in and with
oil, gas and mineral wells, refineries, mines, machinery, and transportation and
other equipment and apparatus in connection therewith; to manage, control and
exploit oil, gas and mineral interests and to collect the revenue arising
therefrom; and, in connection with or to further all of the foregoing, to
acquire, own, operate, develop, improve, manage, sell, transfer, assign or
otherwise dispose of and deal in and with, in the United States and elsewhere,
lands, claims, mines, contracts, leases and/or any other working, operating or
other rights or interests in lands containing or believed to contain oil, gas or
other mineral deposits, subject always to any limitations which may be imposed
by the laws of the state or country where such property may be situated.
(i) To represent and act for corporations, partnerships and
individuals as distributors, representatives, buying or selling agent or in any
other capacity in connection with the manufacture, purchasing, sale or
distribution or development of any and all kinds of commercial, industrial or
business materials, matters or merchandise to the extent allowed by law.
(j) To subscribe for, receive, purchase, or otherwise acquire,
underwrite, obtain an interest in, own, hold, pledge, hypothecate, mortgage,
assign, deposit, create trusts with respect to, deal in, exchange, sell and
otherwise dispose of, alone or in syndicates or otherwise in conjunction with
others, and generally deal in and with all or any of the following (hereinafter
referred to collectively as "securities"), namely, all kinds of shares, stocks,
voting trust certificates, trust certificates, bonds, mortgages, debentures,
trust receipts, notes and other securities, obligations, contracts, certificates
of interest, choses in action and evidences of indebtedness generally of any
corporation, association, partnership, syndicate, entity, person, or
governmental, municipal or public authority, domestic or foreign, and evidences
of any interest therein or in respect thereto; to acquire or become interested
in any such securities by original subscription, underwriting, participation in
syndicates or otherwise, and irrespective of whether or not such securities are
fully paid or subject to further payments or assessments; to issue in exchange
therefor its own securities; and while the owner or holder of any such, to
exercise all the rights, powers and privileges of ownership or interest in
respect thereof, including the right to vote thereon and otherwise act with
respect thereto; and to promote, manage, participate in and act as agent for any
underwriting, purchasing or selling syndicate or group and otherwise to take
part in and assist in any legal manner, by guaranty or otherwise, the purchase,
sale, or distribution of any such securities.
(k) To apply for, purchase, or otherwise acquire any and all
patents, patent rights, copyrights, licenses and privileges, inventions,
improvements and processes, trademarks, trade names, labels, designs, and brands
relating to or useful in connection with any business of the corporation, and to
use, exercise, develop, grant licenses in respect of, sell, deal in and exchange
the same.
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(l) To acquire all or any part of the securities, good will,
rights, property or assets of any kind and to undertake or assume the whole or
any part of the obligations or liabilities of any corporation, association,
partnership, syndicate, entity, or person located in or organized under the laws
of any state, territory or possession of the United States of America or any
foreign country, and to pay for the same in cash, stocks, bonds, debentures or
other securities of this or any other corporation or otherwise, in any manner
permitted by law, and to conduct in any lawful manner the whole or any part of
any business so acquired.
(m) To enter into contracts with the Government of the United
States of America, its territories or possessions and any and all agencies
thereof, and with foreign governments, states and municipalities and any and all
agencies thereof, or with any corporation, association, partnership, syndicate,
entity or person located in or organized under the laws of any state, territory
or possession of the United States of America or any foreign country.
(n) To acquire, purchase, own, hold, operate, develop, lease,
mortgage, pledge, exchange, sell, transfer or otherwise invest, trade or deal
in, in any manner permitted by law, real and personal property of every kind and
description or any interest therein.
(o) To enter into any lawful arrangement for sharing profits,
union of interest, reciprocal concession or cooperation with any corporation,
association, partnership, syndicate, entity, person, or governmental, municipal
or public authority, domestic or foreign, located in or organized under laws of
the State of Delaware, any and all other states, territories or possessions of
the United States or any foreign country, in the carrying on of any business
which the corporation is authorized to carry on, or any business or transaction
deemed necessary, convenient or incidental to carrying out any of the purposes
of the corporation.
(p) To conduct its business in all its branches at one or more
offices and to carry on any one or more of the businesses set forth herein in
the State of Delaware and in other states, territories and possessions of the
United States of America and in any and all foreign countries, directly or by
means of subsidiary, controlled or affiliated corporations.
In furtherance of and not in limitations of the general powers
conferred by the laws of the State of Delaware and of the specific objects and
powers hereinbefore set forth, it is expressly provided that the corporation
shall also have the following powers and purposes:
(q) To issue any of the shares of its capital stock of any
class now or hereafter authorized for such considerations permitted by law and
upon such terms and conditions as to the Board of Directors may seem proper in
its absolute discretion, and the stock so issued shall be fully paid and not
liable to any further call or payment thereof; in the absence of actual fraud in
the transaction, the judgment of the Board of Directors as to the value of the
property or other consideration received for the shares of capital stock shall
be conclusive.
(r) In the course of its business, to guarantee or assume the
payment of principal, dividends or interest of or on any shares of stock or
notes, bonds or other
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securities of any other corporation, association, partnership, syndicate, entity
or person whose stock, business or property shall be acquired or controlled in
whole or in part by the corporation, and to use its name and credit for the
benefit of said corporations, associations, partnerships, syndicates, entities
or persons as may, to the Board of Directors, seem desirable.
(s) To borrow money, make, issue and sell, pledge or otherwise
dispose of checks, drafts, bills of exchange, documents of title, bonds,
debentures and other evidences of indebtedness of all kinds, whether secured by
mortgage or otherwise, or not secured, and without limit as to amount, and also
to secure the same by mortgage, pledge or otherwise; and to pledge or sell such
bonds or securities as well as any bonds or securities held by it for any of its
purposes on such terms and conditions and at such prices as the Board of
Directors shall determine.
(t) To lend its funds and makes advances to any affiliated
corporation, association, partnership, syndicate, entity or person, with or
without security, and upon such terms as the Board of Directors may deem
expedient.
(u) To do any and all things herein set forth as its objects
to the same extent and as fully as a natural person might or could do as
principal, agent, or otherwise, and by or through trustees, agents,
subcontractors or otherwise as may be necessary or desirable, and to do
everything necessary for or incidental to the accomplishment of any of its
purposes or the attainment of any of its objects or the exercise of any of the
powers herein enumerated or which it may lawfully possess. Nothing contained in
this Certificate shall be deemed or construed to authorize the corporation to
carry on in any other state, territory or foreign country any business contrary
to the provisions of the laws thereof, or to carry on within the State of
Delaware a surety or banking business or any other business not permitted by the
laws of the State of Delaware to corporations organized under the General
Corporation Law.
FOURTH: The total number of shares of all classes of stock which the
corporation is authorized to issue is 500,100,000; of which 500,000,000 shares,
having a par value of $1 each shall be Common Stock; and 100,000 shares having a
par value of $100 each shall be Preferred Stock, with or without voting powers,
full or limited, and in such series and with such designations, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions in respect to each class of stock or series thereof
as hereinafter provided.
(a) General. Except as may otherwise be expressly provided for
herein or in any amendment hereto and subject to the provisions hereof, the
Board of Directors shall have the authority to authorize and provide for the
issue of the Preferred Stock or any one or more series thereof and, in the
resolution or resolutions providing for the issue of any such stock adopted by
the Board of Directors pursuant to the authority vested in it by the provisions
hereof, shall state the designations, preferences and relative, participating,
voting, optional or other special rights, and the qualifications, limitations or
restrictions thereof. The Board of Directors shall also have the power to
increase or decrease the authorized amount of any Preferred Stock or series
thereof, but not in excess of the amount provided for in the first sentence of
this Article Fourth, as may be authorized under the General Corporation Law of
Delaware.
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(b) Dividends. The holders of the Preferred Stock or of any
series thereof shall be entitled to receive dividends at such rates and on such
conditions and at such times as shall be stated and expressed in the resolution
or resolutions provided for the issue of such stock adopted by the Board of
Directors as hereinabove provided, payable in preference to, or in such relation
to, the dividends payable on any other class or classes of stock, and cumulative
or non-cumulative as shall be so stated or expressed. When dividends upon the
Preferred Stock or any series thereof, if any, to the extent of the preference
to which such stocks are entitled, shall have been paid or declared and set
apart for payment, all dividends, whether in cash or in property or otherwise,
as may be declared by the Board of Directors from time to time, shall be paid
ratably and equally, share for share, on all the outstanding shares of the
Common Stock.
(c) Voting Rights. The holders of the Preferred Stock or of
any series thereof shall have such voting power, if any, not in excess of one
vote for each share, and to such extent as may be stated and expressed in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors as hereinabove provided. Unless otherwise stated and
expressed in the resolution or resolutions providing for the issue of such stock
adopted by the Board of Directors as hereinabove provided, the holders of the
Preferred Stock or of any series thereof shall have no voting rights or voice
whatsoever as holders of such stock in the affairs or management of the
corporation or to notice of any meeting of stockholders, except as specifically
required by law. Except to the extent that the Preferred Stock or any series
thereof may also be granted the right to vote as set forth above, the holders of
the Common Stock shall have the exclusive voting power and rights, one vote for
each share, for all purposes. Any and all voting power of the Common Stock and
of the Preferred Stock or any series thereof which may be granted voting power
shall be exercised on a share for share basis; and no class of stock or series
thereof shall be entitled to vote as a class or series on any matter, except as
specifically required by law. The aggregate amount of the authorized Preferred
Stock set forth in the first sentence of this Article Fourth may be increased or
decreased solely by the affirmative vote of the holders of a majority of the
outstanding shares of the Common Stock.
(d) Redemption or Repurchase.
(i) The Preferred Stock or any series thereof may be
made subject to redemption at such time or times and at such price or prices and
on such other terms and conditions as shall be stated and expressed in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors as hereinabove provided.
(ii) The corporation may also at its election,
pursuant to authority granted by the Board of Directors at any time or from time
to time, purchase for retirement at public or private sale all or any shares of
the Preferred Stock or any series thereof upon the best terms reasonably
obtained, but in no event at prices greater than the respective redemption
prices of such stock. Any such stock so purchased for retirement is to be
cancelled and is not to be reissued.
(iii) The corporation may also at its election,
pursuant to authority granted by the Board of Directors at any time or from time
to time, purchase at public or private sale all or any shares of the Preferred
Stock or any series thereof
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and/or any shares of Common Stock, to be held as treasury stock of the
corporation or for reissue, at purchase prices in the case of the Preferred
Stock or any series thereof no greater than the respective redemption prices
thereof, and in the case of the Common Stock at such price or prices as the
Board of Directors may from time to time deem reasonable.
(e) Liquidation Rights. The holders of the Preferred Stock or
of any series thereof shall be entitled to such preferential or special rights
upon the dissolution of, or upon any distribution of the assets of, the
corporation as shall be stated and expressed in the resolution or resolutions
providing for the issue of such stock adopted by the Board of Directors as
hereinabove provided. All remaining available assets shall then be distributed,
in cash or other property or both, ratably among the holders of the then
outstanding Common Stock.
(f) Conversion Rights. Any preferred Stock or any series
thereof may be made convertible into, or exchangeable for, shares of any other
class or classes or of any other series of the same or any other class or
classes of stock of the corporation at such price or prices or at such rate of
exchange and such adjustments as shall be stated and expressed or provided for
in the resolution or resolutions providing for the issue of such stock adopted
by the Board of Directors as hereinabove provided.
(g) Preemptive Rights. No holder of any of the stock of the
corporation shall, as such holder, have any right to purchase or subscribe for
any stock or warrants of any class or series thereof which the corporation may
issue or sell, whether such stock or warrants are exchangeable for any shares of
the corporation of any class or classes or series thereof, and whether such
stock is issued out of the number of shares authorized by the certificate of
incorporation of the corporation as originally filed or by any amendment
thereof, or out of shares of the stock of the corporation acquired by it after
the issue thereof; nor shall any holder of any of the stock of the corporation,
as such holder, have any right to purchase or subscribe for any obligation,
option or warrant which the corporation may issue or sell that shall be
convertible into, or exchangeable for any shares of the stock of the corporation
of any class or classes or series thereof, or to which shall be attached or
shall appertain any warrant or warrants or other instrument or instruments that
shall confer upon the holder or owner thereof the right to subscribe for, or
purchase from the corporation, any shares of its stock of any class or classes
or series thereof.
(h) Series A Junior Participating Preferred Stock. The
designation and amount of the initial series of Preferred Stock and the powers,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions
thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" $100.00 par value,
and the number of shares constituting such series shall be 45,000. 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 Junior
Participating Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
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Section 2. Dividends and Distributions
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock in preference to the holders of shares of Common Stock, par value $1.00
per share (the "Common Stock"), of the Corporation and any other junior stock,
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 first day of January, April, July, and October 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 Junior Participating Preferred
Stock in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $10.00, or (b) subject to the provision for adjustment hereinafter set
forth, 1000 times the aggregate per share amount of all cash dividends, and 1000
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 a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the 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 Junior Participating Preferred Stock. In the event the
Corporation shall at any time after November 5, 1987 (the "Rights Declaration
Date") (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A Junior Participating 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.
(B) The Corporation shall declare a dividend or distribution
on the Series A Junior Participating Preferred Stock as provided in paragraph
(A) above 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 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 $10.00 per share on the Series A
Junior Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series A Junior Participating Preferred Stock 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 Junior Participating Preferred Stock
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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
Junior Participating 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 Junior Participating Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 30 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Junior Participating Preferred Stock shall entitle
the holder thereof to 1 vote on all matters submitted to a vote of the
shareholders of the Corporation.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all shares of
Series A Junior Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period, all
holders of Preferred Stock (including holders of the Series A Junior
Participating Preferred Stock) with dividends in arrears in an amount equal to
six (6) quarterly dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of
the holders of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of shareholders, and thereafter at annual
meetings of shareholders, provided that neither such voting right nor the right
of holders of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of Directors shall be exercised unless the
holders of ten percent (10%) in number of shares of Preferred Stock outstanding
shall be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Preferred Stock
of such voting right. At any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the
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Preferred Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of the required
number. After the holders of the Preferred Stock shall have exercised their
right to elect Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or decreased except
by vote of the holders of Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or pari passu with the Series
A Junior Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall,
during an existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any shareholder or
shareholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the holders of Preferred Stock,
which meeting shall thereupon be called by the President , a Vice-President or
the Corporate Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock are entitled to vote pursuant
to this Paragraph (C)(iii) shall be given to each holder of record of Preferred
Stock by mailing a copy of such notice to him at his last address as the same
appears on the books of the Corporation. Such meeting shall be called for a time
not earlier than 10 days and not later than 60 days after such order or request
or in default of the calling of such meeting within 60 days after such order or
request, such meeting may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding. Notwithstanding the
provisions of this Paragraph (C)(iii), no such special meeting shall be called
during the period within 60 days immediately preceding the date fixed for the
next annual meeting of the shareholders.
(iv) In any default period, the holders of Common
Stock, and other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of Directors may (except as
provided in Paragraph (C)(ii) of this Section 3) be filled by vote of a majority
of the remaining Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have become vacant.
References in this Paragraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default
period, (x) the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (z) the number of Directors
shall be such number as may be provided for in, or pursuant to, the Restated
Certificate of Incorporation or By-Laws irrespective of any increase made
pursuant to the provisions of Paragraph (C)(ii) of this Section 3 (such number
being subject, however to change thereafter in any manner provided by law or in
the Restated Certificate of Incorporation or By-Laws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y) and (z) in the
preceding
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sentence may be filled by a majority of the remaining Directors, even though
less than a quorum.
(D) Except as set forth herein, holders of Series A Junior
Participating 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 as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
A Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividend or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on 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 Junior
Participating Preferred Stock except dividends paid ratably on the Series A
Junior Participating 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;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity 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 Junior
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred Stock or any shares of
stock ranking on a parity with the Series A Junior Participating 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.
(B) 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 Paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
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Section 5. Reacquired Shares. Any shares of Series A Junior
Participating 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 to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation, Dissolution or Winding Up
(A) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received per share, the greater of 1000 times $175 or
1000 times the payment made per share of Common Stock, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series A
Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1000 (as appropriately adjusted as set forth in
subparagraph (C) below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock) (such number in clause
(ii), the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and Common
Stock, respectively, holders of Series A Junior Participating Preferred Stock
and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per shares basis, respectively.
(B) In the event there are not sufficient assets available to
permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other Series of Preferred Stock, if any, which
rank on a parity with the Series A Junior Participating Preferred Stock then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event
there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably to
the holders of Common Stock.
(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock into a
smaller number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such Adjustment
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 are outstanding prior to such event.
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Section 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 the shares of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 1000 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 after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in share of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, 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 Junior Participating 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 are
outstanding immediately prior to such event.
Section 8. Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred Stock as to
the payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Restated Certificate of Incorporation of the
Corporation shall not be further amended in any manner which could materially
alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding shares
of Series A Junior Participating Preferred Stock voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating Preferred Stock.
FIFTH: The amount of capital with which the corporation will commence
business is One Thousand Dollars ($1,000).
SIXTH: The existence of the corporation is to be perpetual.
SEVENTH: The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatsoever.
EIGHTH: The number of directors of the corporation shall be such as
from time to time may be fixed by, or in the manner provided in, the By-laws,
but in no case
14
shall the number be less than three. Directors need not be stockholders. The
Board of Directors shall have the general direction and management of the
business and affairs of the corporation. The election of directors need not be
by ballot.
NINTH: (a) The Board of Directors shall have the power (i) to make,
alter or amend the By-laws, subject only to such limitations, if any, as the
By-laws of the corporation may from time to time impose; (ii) from time to time
to fix and determine and to vary the amount to be reserved as working capital of
the corporation and, before the payment of any dividends or making any
distribution of profits, to set aside out of the surplus or net profits of the
corporation such sum or sums as the said Board may from time to time in its
absolute discretion think proper either as additional working capital or as a
reserve fund to meet contingencies, or for the repairing or maintaining of any
property of the corporation, or for such other corporate purposes as the Board
of Directors shall think conducive to the interests of the corporation, subject
only to such limitations, if any, as the By-laws of the corporation may from
time to time impose, (iii) from time to time, to the extent now or hereafter
permitted by the laws of the State of Delaware, to sell, lease, exchange, or
otherwise dispose of any part of the property and assets of the corporation
which the Board of Directors deems it expedient and for the best interests of
the corporation to dispose of, or disadvantageous to continue to own, without
assent of the stockholders by vote or otherwise; (iv) to issue or cause to be
issued from time to time all or any part of the authorized Capital Stock of the
corporation on such terms and for such consideration as the Board may determine
in its discretion without obtaining the approval of the holders of any of the
then outstanding Capital Stock; (v) from time to time to determine, pursuant to
the provisions of the By-laws, whether and to what extent, and to what times and
places, and under what conditions and regulations, the accounts and books of the
corporation (other than the stock ledger), or any of them, shall be open to
inspection of stockholders; and no stockholder shall have the right of
inspecting any account, book or document of the corporation, except as conferred
by statute, unless duly authorized so to do by a resolution of a majority of the
stockholders or of the Board of Directors; (vi) pursuant to the written consent
of the holders of a majority of the shares of stock issued and outstanding
having voting power, or pursuant to the affirmative vote of the holders of a
majority of stock issued and outstanding having voting power, given at a
stockholders' meeting duly called for that purpose, to sell, lease, exchange, or
otherwise dispose of all of the property and assets of the corporation,
including its good will and its corporate franchises, upon such terms and
conditions as the Board of Directors deems expedient and for the best interests
of the corporation; (vii) subject to the provisions of the laws of Delaware, to
exercise any and all other powers, in addition to the powers expressly conferred
upon by law and by this certificate which may be conferred upon the Board
Directors by the corporation through appropriate By-law provisions.
(b) The Board of Directors may, by resolution or resolutions,
passed by a majority of the whole Board, 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 or resolutions or in the By-laws of the
corporation, 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 have the
power to authorize the seal of the corporation to be affixed to all papers which
may require it.
TENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and
15
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 by 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 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 a 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.
ELEVENTH: No contract, act or transaction of the corporation with any
person, firm, or corporation shall be affected or invalidated by reason of the
fact that any director or officer of the corporation is a party to or interested
in such contract, act or transaction, or in any way connected with such person,
firm or corporation, provided that such interest or connection shall have been
disclosed or known to the corporation. Any director of the corporation having
any such interest or connection may, nevertheless, be counted in determining the
existence of a quorum at any meeting of the Board or a committee which shall
authorize any such contract, act or transaction and may vote thereon with full
force and effect. No such officer or director nor any such person, firm, or
corporation in or with which such director or officer is connected shall be
liable to account to the corporation for any profit realized from or through any
such contract, act or transaction.
TWELFTH: The stockholders and directors shall have the power to hold
their meetings if the By-laws so provide, and keep the books (except the
original or duplicate stock ledger), documents and papers of the corporation,
outside of the Sate of Delaware, and to have one or more offices within or
without the State of Delaware, at such places as may be from time to time
designated by the By-laws or by resolution of the stockholders or directors,
except as otherwise required by the laws of Delaware.
THIRTEENTH: The corporation reserves the right to amend, alter or
repeal any provision contained in this Certificate in the manner now or
hereafter prescribed by the Statutes of Delaware, and all rights and powers
conferred on directors and stockholders herein are granted subject to this
reservation.
FOURTEENTH: (A) In addition to any affirmative vote required by law or
under any other provision of this Certificate of Incorporation, and except as
otherwise expressly provided in Paragraph (B), any Business Combination with
respect to a Related Person shall require the affirmative vote of the holders of
at least 80% of the outstanding shares of capital stock of the corporation
entitled to vote generally in the election of directors, considered for the
purpose of this Article Fourteenth as one class ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that
16
no vote may be required, or that some lesser percentage may be specified, by law
or in any agreement with any national securities exchange or otherwise.
(B) The provisions of Paragraph (A) of this Article Fourteenth
shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as is required by
law and any other provision of this Certificate of Incorporation if:
(1) A definitive agreement or other arrangement to effectuate
the Business Combination was approved by a majority of the directors of the
corporation at a time when the Related Person who is a party to the Business
Combination did not beneficially own, directly or indirectly, 5% or more of the
outstanding shares of capital stock of the corporation; or
(2) Such Business Combination has been approved by a majority
of the Continuing Directors; or
(3) All of the following conditions shall have been satisfied:
(a) The aggregate amount of the cash and the fair market value
(as of the date of the consummation of the Business Combination) of other
consideration to be received per share by holders of the common stock of the
corporation ("Common Stock") in such Business Combination is no less than the
higher of:
(i) the price per share equal to the Market Price of
Common Stock immediately prior to the announcement of such Business Combination,
multiplied by the ratio of (a) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) which the Related
Person has theretofore paid for any of the shares of Common Stock already owned
by it, to (b) the Market Price of the Common Stock immediately prior to the
commencement of acquisition of Common Stock by such Related Person; or
(ii) the highest per share price (including brokerage
commission, transfer taxes and soliciting dealers' fees) paid by such Related
Person for any shares of Common Stock acquired by it;
provided, however, that, as used in the foregoing calculations, all
prices per share shall be adjusted to reflect any subsequent stock splits, stock
dividends, or other similar corporate actions.
(b) The aggregate amount of the cash and the fair market value
(as of the date of consummation of the Business Combination) of other
consideration to be received per share by holders of the preferred stock of the
corporation ("Preferred Stock") in such Business Combination is no less than the
highest of:
(i) the price per share equal to the Market Price of
Preferred Stock immediately prior to the announcement of such Business
Combination, multiplied by the ratio of (a) a highest per share price (including
brokerage commissions, transfer taxes and soliciting dealers' fees) which the
Related Person has theretofore paid for any of the shares of Preferred Stock
already owned by it, to (b) the Market Price of the
17
Preferred Stock immediately prior to the commencement of acquisition of
Preferred Stock by such Related Person; or
(ii) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by such Related
Person for any shares of Preferred Stock acquired by it; or
(iii) the highest preferential amount per share to
which the holders of shares of such class of Preferred 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;
provided, however, that, as used in the foregoing calculations, all
prices per share shall be adjusted to reflect any subsequent stock splits, stock
dividends or other similar corporate actions.
The provisions of this subsection (3)(b) shall apply with respect to
every class of outstanding Preferred Stock, whether or not the Related Person
has previously acquired any such Preferred Stock.
(c) The consideration to be received by holders of a
particular class of outstanding Voting Shares in such Business Combination shall
be in the same form and of the same kind as the consideration paid by the
Related Person in acquiring the shares of such class of Voting Shares already
owned by it. If the Related Person has purchased shares of any class of Voting
Shares with varying forms of consideration, the form of consideration for such
class of Voting Shares to be paid in the Business Combination shall be either
cash or the form previously used by such Related Person to acquire the largest
number of shares of such class of Voting Shares.
(d) After such Related Person has acquired ownership of not
less than 15% of the then outstanding Voting Shares (a "15% Interest") and prior
to the consummation of such Business Combination:
(i) the Related Person shall have taken steps to
ensure that the corporation's Board of Directors has included at all times
representation by Continuing Director(s) proportionate to the ratio that the
Voting Shares which from time to time are owned by Public Holders bear to all
Voting Shares outstanding at such respective times (with a Continuing Director
to occupy any resulting fractional Board position);
(ii) except as approved by a majority of the
Continuing Directors, there shall have been no failure to declare and pay at the
regular date therefor any full dividends (whether cumulative or not) on the
outstanding Preferred Stock;
(iii) there shall have been no reduction in the rate
of dividends payable on the Common Stock except as necessary to ensure that a
quarterly dividend payment does not exceed 8.75% of the net income of the
corporation for the four full consecutive fiscal quarters immediately preceding
the declaration date of such dividend, or except as may have been approved by a
majority of the Continuing Directors;
18
(iv) such Related Person shall not have become the
beneficial owner of any newly issued shares of stock, directly or indirectly,
from the corporation except upon conversion of convertible securities acquired
by it prior to obtaining a 15% Interest or as a result of a pro rata stock
dividend or stock split or except as may have been approved by a majority of the
Continuing Directors.
(v) such Related Person shall not have become the
beneficial owner of any additional Voting Shares or securities convertible into
or exchangeable for Voting Shares except as a part of the transaction which
resulted in such Related Person acquiring its 15% Interest; and
(vi) such Related Person shall not have (A) received
the benefit, directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges, or other financial assistance, or
tax credits or other tax advantages provided by the corporation, (B) made any
major change in the corporation's business or equity capital structure without
the unanimous approval of the Continuing Directors, or (C) used any asset of the
corporation as collateral, or compensating balances, directly or indirectly, for
any obligation of such Related Person.
(e) a proxy or information statement responsive to the
requirements the Securities Exchange Act of 1934 shall have been mailed to all
holders of Voting Shares at least 30 days prior to the consummation of such
Business Combination. Such proxy statement shall contain:
(i) at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the Business
Combination which the Continuing Directors, or any of them, may have furnished
in writing; and
(ii) if deemed advisable by a majority of the
Continuing Directors, an opinion of a reputable investment banking or appraisal
firm as to the fairness (or lack of fairness) of the terms of such Business
Combination, from the point of view of the Public Holders (such investment
banking or appraisal firm to be selected by a majority of the Continuing
Directors, to be a firm which has not previously been associated with or
rendered services to or acted as manager of an underwriting or as agent for a
Related Person, to be furnished with all information it reasonably requests and
to be paid a reasonable fee for its services upon receipt by the corporation of
such opinion).
(C) For the purposes of this Article Fourteenth:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) The term "Business Combination" shall mean:
(i) any merger or consolidation of the corporation or
any Subsidiary with or into (A) any Related Person or (B) any other corporation
(whether or not itself a Related Person) which, after such merger or
consolidation, would be an Affiliate of a Related Person; or
19
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of transactions)
to, by or with any Related Person of any assets of or to the corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or more; or
(iii) the issuance or transfer by the corporation or
any Subsidiary (in one transaction or a series of transactions) of any
securities of the corporation or any Subsidiary to any Related Person in
exchange for cash, securities or other property (or a combination thereof); or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on behalf of a
Related Person; or
(v) any reclassification of securities (including any
reverse stock split), recapitalization, reorganization, merger, or consolidation
of the corporation with any of its subsidiaries, or any other transaction
(whether or not with or into or otherwise involving a Related Person) 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
Related Person; or
(vi) any agreement, contract or other arrangement
providing for any of the transactions described herein.
(3) "Related Person" 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:
(a) is the beneficial owner, directly or indirectly, of not
less than 15% of the Voting Shares; or
(b) is an Affiliate of the corporation and at any time within
two years prior thereto was the beneficial owner, directly or indirectly, of not
less than 15% of the then outstanding Voting Shares; or
(c) is an assignee of or has otherwise succeeded to any shares
of capital stock of the corporation which were at any time within two years
prior to thereto beneficially owned by any Related Person, and 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.
(4) A person shall be the "beneficial owner" of any Voting
Shares:
(a) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially own, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates
has (i) 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
20
exercise of conversion rights, exchange rights, warrants, or options, or
otherwise, or (ii) 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 first mentioned 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 capital stock of the
corporation.
(5) "Public Holders" shall mean those holders of Voting Shares
of the corporation who are not Related Persons.
(6) The outstanding Voting Shares shall include shares deemed
owned through application of Section (4) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon exercise
of conversion rights, warrants or options, or otherwise.
(7) "Continuing Director" shall mean a member of the Board of
Directors of the corporation who was first elected or appointed to the Board
prior to the date as of which any Related Person became a Related Person and any
successor to a Continuing Director who is unaffiliated with such Related Person
and who was recommended or elected to succeed a Continuing Director by a
majority of the then Continuing Directors.
(8) In the event of any Business Combination in which the
corporation survives, the phrase "other consideration to be received" as used in
sections (3)(a) and (b) of Paragraph (B) shall include the Voting Shares of the
corporation retained by its Public Holders.
(9) "Affiliate" and "Associate" shall have their respective
meanings given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1, 1983.
(10) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulators under the Securities Exchange Act of 1934, as in
effect on January 1, 1983) is owned, directly or indirectly, by the corporation;
provided, however, that for the purposes of the definition of a Related Person
set forth in Section (3) 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.
(11) "Market Price" shall mean, with respect to any class 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 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, during the 30-day period
immediately preceding the date in question, of a share of such stock on the
National Association of Securities Dealers, Inc. Automated Quotations System or
any such 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 a majority of the Continuing Directors.
21
(D) A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Article Fourteenth on the
basis of information known to them:
(a) the number of Voting Shares beneficially owned by any
person,
(b) whether a person is an Affiliate or Associate of another,
(c) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in sections (4)(b) and
(c) of paragraph (C), and
(d) whether the assets subject to any Business Combination
have an aggregate fair market value of $1,000,000 or more.
(E) Notwithstanding any other provisions of this Certificate
of Incorporation or the By-laws of the corporation to the contrary (and
notwithstanding the fact that a lesser percentage may be specified by law, this
certificate of Incorporation or the By-laws of the corporation), any amendment,
alteration, change or repeal of this Article Fourteenth of this Certificate of
Incorporation shall require the affirmative vote of the holders of at least 80%
of the then outstanding Voting shares; provided, however, that this Paragraph
(E) shall not apply to, and such 80% vote shall not be required for, any
amendment, alteration, change or repeal recommended to the stockholders by the
majority vote of the Continuing Directors or, in the event there is no Related
Person at the time such amendment, alteration, change, or repeal is under
consideration, by the majority vote of the Board of Directors.
(F) Nothing contained in this Article Fourteenth shall be
construed to relieve any Related Person from any fiduciary obligation imposed by
law.
FIFTEENTH:(A) (1) Except as otherwise expressly provided in paragraph
(A)(2) below, any purchase by the corporation, or any subsidiary of the
corporation, of Voting Shares (as hereinafter defined) from a person or persons
known by the corporation to be an Interested Stockholder (as hereinafter
defined) at a per share price in excess of the Market Price (as hereinafter
defined) at the time of such purchase of the shares so purchased, shall require
the affirmative vote of not less than a majority of the votes entitled to be
cast by the holders of all then outstanding Voting Shares not beneficially owned
by the Interested Stockholder, 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) The provisions of Paragraph (A)(1) of this Article
Fifteenth shall not be applicable to any purchase of Voting Shares, if such
purchase is pursuant to (i) an offer, made available on the same terms, to the
holders of all of the outstanding shares of the same class of those purchased or
(ii) a purchase program effected on the open market and not the result of a
privately-negotiated transaction.
(B) (1) In the event that there shall exist a Substantial Stockholder
(as hereinafter defined) of the corporation and such existence shall be known or
made
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known to the corporation in advance of a meeting of stockholders at which
directors will be elected, each holder of Voting Shares shall be entitled, in
connection with any vote taken for such election of directors, to as many votes
as shall equal the number of votes which (except for this provision as to
cumulative voting) such stockholder would be entitled to cast for the election
of directors with respect to such stockholder's Voting Shares multiplied by the
number of directors to be elected, and such stockholder may cast all of such
votes for a single director may distribute them among the number of directors to
be voted for, or for any two or more of them as such stockholder may see fit.
(2) In connection with any election of directors in which
stockholders are entitled to cumulative voting:
(a) The Board of Directors shall appoint a committee (the "Committee")
consisting of three Directors.
(b) The Committee shall send to all stockholders of the corporation
entitled to vote in the election of directors at least 90 days in advance of
such election a written notice informing stockholders (i) that the cumulative
voting provisions of this Article will be in effect, (ii) that persons meeting
the eligibility requirements of subparagraph (B)(2)(c) may submit nominations to
the Committee, if such nominations are received at least 60 days in advance of
the election and contain relevant information concerning the nominee, including
all information required to be included in a proxy statement under the
Securities and Exchange Act of 1934 and the rules and regulations thereunder (or
any subsequent provisions replacing such Act, rules or regulations), and the
nominee's consent to be nominated, and (iii) as to the time, place and date of
the meeting at which such election will be held.
(c) The Committee will review all nominees, and the corporation's proxy
materials being prepared in connection with such meeting will include
information relating to, and afford stockholders the opportunity to vote for,
all nominees who are included by the Committee in the corporation's proxy
materials. The Committee shall be required to include in such proxy materials at
least one nominee of each stockholder or group of stockholders who beneficially
own Voting Shares with a Market Price (as herein defined) of at least $250,0000
at the time notice of such meeting is sent to stockholders and who submit the
information required with respect to such nominee under subparagraph (B)(2)(b).
The Committee may include more than one nominee of such person or persons,
provided that the number of nominees included by the Committee which are
submitted by any one person or group of persons may not exceed the number of
directors to be elected at such a meeting.
(d) The corporation's proxy statement and other communications with
respect to the election shall contain, on an equal basis and at the expense of
the corporation, descriptions and other statements of or with respect to all
nominees for election which qualify under the procedures set forth in this
Article.
(3) If necessary to assure that the provisions of this
Paragraph (B) are fairly applied and complied with, the Board of Directors may
postpone any meeting of stockholders to which this Article would apply for such
period of time as shall be necessary to permit the Committee to perform its
responsibilities hereunder.
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(4) Notwithstanding any other provision which may be contained
from time to time in this Certificate of Incorporation or the by-laws of the
corporation concerning the manner in which the size of the Board of Directors of
the corporation may be established or changed, in the event that a person
becomes a Substantial Stockholder, the number of directors at the time such
person becomes a Substantial Stockholder shall remain fixed and may not be
changed by the Board of Directors or the stockholders until such time as such
person is no longer a Substantial Stockholder.
(C) For purposes of this Article Fifteenth:
(1) "Interested Stockholder" 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:
(a) is the beneficial owner, directly or indirectly, of not
less than 5% of the Voting Shares and has been such a beneficial owner for less
than four years; or
(b) is an Affiliate of the corporation and at any time within
two years prior thereto was the beneficial owner, directly or indirectly, for a
period of less than four years of not less than 5% of the then outstanding
Voting Shares; or
(c) is an assignee of or has otherwise succeeded to any shares
of capital stock of the corporation which were at any time within two years
prior thereto beneficially owned by any Interested Stockholder and 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.
(2) The term "Substantial Stockholder" 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 is the beneficial
owner, directly or indirectly, of not less than 40% of the Voting Shares.
(3) For the purpose of determining whether a person is an
Interested Stockholder or a Substantial Stockholder, the number of Voting Shares
deemed to be outstanding shall include shares deemed beneficially owned by such
person through application of subparagraph (4) of Paragraph (C) of Article
Fourteenth, but shall not include any other Voting Shares that may be issuable
pursuant to any agreement, or upon exercise of conversion rights, warranties or
options, or otherwise.
(4) For purposes of this Article Fifteenth, the terms "Voting
Shares," "beneficial owner," "person," "Affiliate," "Associate," "Subsidiary,"
and "Market Price" shall have the meanings set forth in Article Fourteenth of
this Certificate of Incorporation, except that "Market Price" shall mean the
last closing sale price or the last closing bid quotation immediately preceding
the date in question instead of the highest closing sale price or the highest
closing bid quotation during the 30-day period immediately preceding the date in
question; and
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(D) The Board of Directors shall have the power and the duty
to determine for the purposes of this Article Fifteenth (a) whether the
provisions of the Article are applicable to a particular transaction, (b)
whether a person is an Interested Stockholder or a Substantial Stockholder, (c)
the number of Voting Shares or other securities beneficially owned by any
person, (d) whether a person is an Affiliate or Associate of another, (e) what
the Market Price is and whether a price is above the Market Price as of a given
date, and (f) whether any person nominating directors in accordance with
Paragraph B.2. beneficially owns Voting Shares with an aggregate Market Price of
at least $250,000.
(E) Notwithstanding any other provisions of this Certificate
of Incorporation or the By-laws of the corporation to the contrary (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Certificate of Incorporation or the by-laws of the corporation), any amendment,
alteration, change or repeal of this Article Fifteenth of this Certificate of
Incorporation shall require the affirmative vote of the holders of at least 80%
of the then outstanding Voting Shares; provided, however, that this Paragraph E
shall not apply to and such 80% vote shall not be required for, any amendment,
alteration, change or repeal recommended to the stockholders by the majority
vote of the Board of Directors and at the time such amendment, alteration,
change or repeal is under consideration there is, to the knowledge of the Board
of Directors, neither an Interested Stockholder nor a Substantial Stockholder.
SIXTEENTH: No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the corporation may be taken
without a meeting, and the power of stockholders to consent in writing, without
a meeting, to the taking of any action is specifically denied.
Notwithstanding any other provisions of this Certificate of
Incorporation or the By-laws of the corporation to the contrary (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Certificate of Incorporation or the By-laws of the corporation), any amendment,
alternation, change or repeal of this Article Sixteenth of this Certificate of
Incorporation shall require the affirmative vote of the holders of at least 80%
of the then outstanding Voting Shares; provided, however, that such 80% vote of
the then outstanding vote shall not required for, any amendment, alteration,
change or repeal recommended to the stockholders by the majority vote of the
Board of Directors and at the time such amendment, alteration, change or repeal
is under consideration there is, to the knowledge of the Board of Directors,
neither an Interested Stockholder nor a Substantial Stockholder.
SEVENTEENTH: To the fullest extent permitted by the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended, a
director of the corporation shall not be liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any repeal or modification of this Article shall not result in
any liability for a director with respect to any action or omission occurring
prior to such repeal or modification.
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4. This Restated Certificate of Incorporation was duly adopted
by the Board of Directors of the corporation in accordance with Section 245 of
the General Corporation Law of Delaware.
5. The capital of the corporation will not be reduced under or
by reason of this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, Dover Corporation has caused this certificate to be
duly executed by its Vice President and Secretary thereunto duly authorized and
its corporate seal to be hereunto affixed the 29 day of July, 1998.
DOVER CORPORATION
By: /s/ Robert G. Kuhbach
Vice President and Secretary