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EXHIBIT 3(a)(iii)
FORM OF
RESTATED CERTIFICATE OF INCORPORATION
OF
D&N CAPITAL CORPORATION
UNDER SECTION 245
OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
1. NAME
The name of the Corporation is D&N CAPITAL CORPORATION.
2. REGISTERED OFFICE AND AGENT
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
3. PURPOSE
The nature of the business or purpose to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware. The Corporation
shall possess and may exercise all powers and privileges necessary or
convenient to effect the foregoing purpose.
4. CAPITAL STOCK
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is TWO MILLION SEVEN HUNDRED AND
FIFTY THOUSAND, of which TWO MILLION FIVE HUNDRED THOUSAND shares shall be
shares of preferred stock of the par value of $25.00 per share (hereinafter
called "Preferred Stock") and TWO HUNDRED AND FIFTY THOUSAND shares shall be
shares of common stock of the par value of $300.00 per share (hereinafter
called "Common Stock").
Any amendment to this Certificate of Incorporation which shall
increase or decrease the authorized capital stock of the Corporation may be
adopted by the affirmative vote of the holders
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of capital stock representing not less than a majority of the voting power
represented by the outstanding shares of capital stock of the Corporation
entitled to vote.
4.1 Designations, Powers, Preferences, Qualifications and Limitations.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of the Preferred Stock
shall be as follows:
The Board of Directors is expressly authorized at any time,
and from time to time, to provide for the issuance of shares
of Preferred Stock in one or more class or series, with such
voting powers, full or limited but not to exceed one vote per
share, or without voting powers and with such designations,
preferences and relative, participating, optional or other
special rights, and qualifications, or restrictions thereof,
as shall be stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the
Board of Directors, and as are not stated and expressed in
this Certificate of Incorporation, or any amendment thereto,
including (but without limiting the generality of the
foregoing) the following:
(a) the designation of such class or series;
(b) the dividend rate or rates of such class or series
and/or the methods of determining dividends, the
conditions and dates upon which such dividends shall
be payable, the preference or relation which such
dividends shall bear to the dividends payable on any
other class or classes or on any other series of any
class or classes of capital stock, and whether such
dividends shall be cumulative or non-cumulative;
(c) whether the shares of such class or series shall be
subject to redemption by the Corporation, and, if
made subject to such redemption, the times, prices
and other terms and conditions of such redemption;
(d) the terms and amount of any sinking fund provided for
the purchase or redemption of the shares of such
class or series;
(e) whether or not the shares of such class or series
shall be convertible into or exchangeable for shares
of any other class or classes or of any other series
of any class or classes of capital stock of the
Corporation or affiliate of the Corporation, and, if
provision be made for conversion or exchange, the
times, prices, rates, adjustments and other terms and
conditions of such conversion or exchange;
(f) the extent, if any, to which the holders of the
shares of such class or series shall be entitled to
vote as a class or otherwise with respect to the
election of the directors or otherwise; provided,
however, that in no event shall any
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holder of any class or series of Preferred Stock be
entitled to more than one vote for each share of such
Preferred Stock held by it;
(g) the restrictions, if any, on the issue or reissue of
any additional Preferred Stock;
(h) the liquidation preference of such class or series
and other rights of the holders of the shares of such
class or series upon the dissolution of, or upon the
distribution of assets of, the Corporation;
(i) whether or not (a) warrants for such class or series
or (b) depositary shares evidenced by depositary
receipts, each representing a fraction (as determined
by the Board of Directors) of a share of such class
or series, shares of which class or series will be
issued and deposited with a depositary, shall be
issued, in each case, in lieu of offering full shares
of such class of series; and
(j) whether or not warrants for Preferred Stock,
depositary shares or Common Stock shall be issued,
whether alone or in connection with any other class
or series, and the terms and conditions of any such
warrants.
4.2 Voting Power/Limits Thereto.
Except as otherwise required by law and except for such voting powers
with respect to the election of directors or other matters as may be stated in
the resolutions of the Board of Directors, or duly authorized committee
thereof, creating any class or series of Preferred Stock, the holders of any
such class or series shall have no voting power whatsoever.
5. BY-LAWS
The Board of Directors is authorized to make, alter, amend or repeal
the by-laws of the Corporation. The books of the Corporation (subject to the
provisions of the laws of the State of Delaware) may be kept outside of the
State of Delaware at such places as from time to time may be designated by the
Board of Directors. Election of directors need not be by written ballot.
6. LIABILITY OF DIRECTORS
6.1 Liability.
To the fullest extent that the General Corporation Law of the State of
Delaware as it exists on the date hereof or as it may hereafter be amended
permits the limitation or elimination of the liability of directors, no
director of the Corporation shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director.
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6.2 Indemnification.
The Corporation shall have the power to indemnify any director,
officer, employee or agent of the Corporation or any other person who is
serving at the request of the Corporation in any such capacity with another
corporation, partnership, joint venture, trust or other enterprise (including,
without limitation, any employee benefit plan) to the fullest extent permitted
by the General Corporation Law of the State of Delaware as it exists on the
date hereof or as it may hereafter be amended, and any such indemnification may
continue as to any person who has ceased to be a director, officer, employee or
agent and may inure to the benefit of the heirs, executors and administrators
of such a person.
6.3 Insurance.
By action of its Board of Directors, notwithstanding any interest of
the directors in such action, the Corporation may purchase and maintain
insurance, in such amounts as the Board of Directors deems appropriate, to
protect any director, officer, employee or agent of the Corporation or any
other person who is serving at the request of the Corporation in any such
capacity with another corporation, partnership, joint venture, trust or other
enterprise (including, without limitation, any employee benefit plan) against
any liability asserted against such person or incurred by such person in any
such capacity or arising out of such person's status as such (including,
without limitation, expenses, judgments, fines and amounts paid in settlement)
to the fullest extent permitted by the General Corporation Law of the State of
Delaware as it exists on the date hereof or as it may hereafter be amended, and
whether or not the Corporation would have the power or would be required to
indemnify any such person under the terms of any agreement or by-law or the
General Corporation Law of the State of Delaware. For purposes of this
paragraph (3), "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan.
7. RESTRICTION OF TRANSFER,
ACQUISITION AND REDEMPTION OF SHARES
7.1 Definitions.
The following terms shall have the following meanings for purposes of
this Certificate of Incorporation:
"Acquire" shall mean the acquisition of Beneficial Ownership of shares
of Preferred Stock by any means, including, without limitation, the exercise of
any rights under any option, warrant, convertible security, pledge or other
security interest or similar right to acquire shares, but shall not include the
acquisition of any such rights unless, as a result, the acquirer would be
considered a Beneficial Owner. The terms "Acquires" and "Acquisition" shall
have correlative meanings.
"Beneficial Ownership" means ownership of shares of any class or
series of Common Stock or Preferred Stock by a Person who would be treated as
an owner of such shares under Section
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542(a)(2) of the Code either directly or constructively through the application
of Section 544 of the Code as modified by Section 856(h)(1)(B) of the Code. The
terms "Beneficial Owner," "Beneficially Own" and "Own Beneficially" shall have
correlative meanings.
"Beneficiary" means, with respect to the Trust, one or more
organizations named by the Corporation as beneficiary or beneficiaries of the
Trust in accordance with Section 7.12(a). Each such Beneficiary shall be an
organization described in Section 501(c)(3) of the Code, that is not an
"individual" within the meaning of Section 542 of the Code, contributions to
which must be eligible for deduction under each of Sections 170(b)(1)(A), 2055
and 2522 of the Code.
"Board of Directors" means the Board of Directors of the
Corporation.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute thereto. Reference to any provision of the
Code shall mean such provision as in effect from time to time, as the same may
be amended, and any successor thereto, as interpreted by any applicable
regulations or other administrative pronouncements as in effect from time to
time.
"Excess Shares" has the meaning set forth in Section 7.3.
"Individual" shall mean a natural person or any entity considered an
individual for purposes of Section 542(a)(2) of the Code.
"Initial Public Offering" means the sale of shares of Preferred Stock
to the public pursuant to the Corporation's first effective registration
statement for such Preferred Stock filed under the Securities Act of 1933, as
amended.
"Market Price", with respect to any class or series of Preferred
Stock, on any date means the Closing Price on the Trading Day immediately
preceding such date of such class or series of Preferred Stock. The "Closing
Price", with respect to any class or series of Preferred Stock, on any date
shall mean the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on
the NYSE or, if such class or series of Preferred Stock is not then listed or
admitted to trading on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such class or series of Preferred Stock
is listed or admitted to trading or, if such class or series of Preferred Stock
is not listed or admitted to trading on any national securities exchange, the
last quoted price, or if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the Nasdaq System
or, if such system is no longer in use, the principal other automated
quotations system that may then be in use or, if such class or series of
Preferred Stock is not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in such class or series of Preferred Stock selected by the Board of
Directors of the Corporation, or, if there is no such market maker or such
closing prices otherwise are not available, the fair market value of the
affected series of
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Preferred Stock as of such day, as determined by the Board of Directors, in its
discretion. "Trading Day" means a day on which the principal national
securities exchange on which the relevant class or series of Preferred Stock is
listed or admitted to trading is open for the transaction of business or, if
the relevant class or series of Preferred Stock is not listed or admitted to
trading on any national securities exchange, shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of
Michigan are authorized or obligated by law or executive order to close.
"Non-Transfer Event" means any event other than a purported Transfer
that would cause (i) any Person to Own Beneficially shares of Preferred Stock
in excess of the Ownership Limit, (ii) the Corporation to become "closely held"
within the meaning of Section 856(h) of the Code, and/or (iii) the Corporation
to otherwise fail to qualify as a REIT (other than as a result of a violation
of the "100-shareholder" requirement of Section 856(a)(5) of the Code), in each
case including, but not limited to, the granting of any option or entering into
any agreement for the sale, transfer or other disposition of shares of
Preferred Stock or the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for shares of Preferred
Stock.
"Ownership Limit" means, for any Person, the Beneficial Ownership of
nine and nine-tenths percent (9.9%), in number of shares or value, of the
outstanding shares of any class or series of Preferred Stock of the
Corporation. The value of the outstanding shares of any class or series of
Preferred Stock of the Corporation shall be determined by the Board of
Directors in good faith, which determination shall be conclusive for all
purposes hereof.
"Permitted Transferee" means any Person designated as a Permitted
Transferee in accordance with the provisions of Section 7.12(e) hereof.
"Person" means (a) an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c)(17) of the
Code), a portion of a trust permanently set aside for or to be used exclusively
for the purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint stock
company, limited liability company or other entity and (b) also includes a
group as that term is used for purposes of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended; but does not include an underwriter which
participated in a public offering of Preferred Stock for a period of sixty (60)
days following the purchase by such underwriter of such Preferred Stock
therein, provided that the foregoing exclusion shall apply only if the
ownership of such Preferred Stock by an underwriter or underwriters
participating in a public offering would not cause the Corporation to fail to
qualify as a REIT by reason of being "closely held" within the meaning of
Section 856(a) of the Code or otherwise cause the Corporation to fail to
qualify as a REIT.
"Prohibited Owner" means, with respect to any purported Transfer or
Non-Transfer Event, any Person who, except for the provisions of Section 7.3,
would Beneficially Own shares of Preferred Stock.
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"REIT" means a Real Estate Investment Trust defined in Sections 856
through 860 of the Code.
"Restriction Termination Date" means the first day after the date of
the Initial Public Offering on which the Board of Directors determines that it
is no longer in the best interests of the Corporation to attempt to, or
continue to, qualify as a REIT.
"Transfer" means any sale, transfer, gift, hypothecation, assignment,
devise or other disposition of a direct or indirect interest in any shares of
Common Stock or Preferred Stock or the right to vote or receive dividends on
such Common Stock or Preferred Stock (including (i) the granting of any option
(including, but not limited to, an option to acquire an option or any series of
such options) or entering into any agreement for the sale, transfer or other
disposition of Common Stock or Preferred Stock or the right to vote or receive
dividends on such Common Stock or Preferred Stock or (ii) the sale, transfer,
assignment or other disposition of any securities or rights convertible into or
exchangeable for Common Stock or Preferred Stock or the exercise of such
rights), whether voluntary or involuntary, whether of record or beneficially,
and whether by operation of law or otherwise (including, but not limited to,
any transfer of an interest in other entities which results in a change in the
Beneficial Ownership of shares of Common Stock or Preferred Stock). The terms
"Transfers," "Transferred" and "Transferable" shall have correlative meanings.
"Trust" means the trust created pursuant to Section 7.12.
"Trustee" means any Person or entity unaffiliated with both the
Corporation and any Prohibited Owner who is designated by the Corporation to
act as trustee of the Trust, and any successor trustee appointed by the
Corporation.
7.2 Restriction on Ownership and Transfers.
(a) Except as provided in Section 7.9, from and after the
date of the Initial Public Offering and prior to the
Restriction Termination Date, no Person shall
Beneficially Own shares of any class or series of
Preferred Stock in excess of the Ownership Limit.
(b) Except as provided in Section 7.9, and subject to the
provisions of Section 7.13, from and after the date
of the Initial Public Offering and prior to the
Restriction Termination Date, any Transfer or other
event that, if effective, would result in any Person
Beneficially Owning shares of any class or series of
Preferred Stock in excess of the Ownership Limit
shall be void ab initio as to the Transfer of such
shares of Preferred Stock which would be otherwise
Beneficially Owned by such Person in excess of the
Ownership Limit, and the intended transferee shall
acquire no rights in such shares of Preferred Stock.
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(c) Subject to the provisions of Section 7.13, from and
after the date of the Initial Public Offering and
prior to the Restriction Termination Date, any
Transfer that, if effective, would result in the
outstanding Common Stock and Preferred Stock being
Beneficially Owned by less than 100 Persons
(determined without reference to any rules of
attribution) shall be void ab initio, and the
intended transferee shall acquire no rights in such
shares of Common Stock or Preferred Stock.
(d) Notwithstanding any other provision herein, subject
to the provisions of Section 7.13, from and after the
date of the Initial Public Offering and prior to the
Restriction Termination Date, any Transfer that, if
effective, would result in the Corporation being
"closely held" within the meaning of Section 856(h)
of the Code shall be void ab initio as to the
Transfer of that number of shares of Common Stock or
Preferred Stock, as the case may be, that would cause
the Corporation to be "closely held" within the
meaning of Section 856(h) of the Code; and the
intended transferee shall acquire no rights in such
shares of Common Stock or Preferred Stock, as the
case may be.
(e) Notwithstanding any other provision herein, subject
to the provisions of Section 7.13, from and after the
date of the Initial Public Offering and prior to the
Restriction Termination Date, any Transfer that, if
effective, would cause the Corporation to fail to
qualify as a REIT shall be void ab initio as to the
Transfer of that number of shares of Common Stock or
Preferred Stock, as the case may be, in excess of the
number that could have been Transferred without such
result; and the intended transferee shall acquire no
rights in such shares of Common Stock or Preferred
Stock, as the case may be.
(f) A Transfer of a share of Common Stock or Preferred
Stock which is null and void under paragraphs (b),
(c), (d) or (e) of this Section 7.2 shall not
adversely affect the validity of the Transfer of any
other share of Common Stock or Preferred Stock in the
same or any other related transaction.
7.3 Transfer in Trust.
(a) If, notwithstanding the other provisions contained in
this Article 7, at any time from and after the date
of the Initial Public Offering and prior to the
Restriction Termination Date, there is a purported
Transfer or Non-Transfer Event such that any Person
would Own Beneficially shares of any class or series
of Preferred Stock in excess of the Ownership Limit,
then (i) except as otherwise provided in Section 7.9,
the Prohibited Owner shall acquire no right or
interest (or, in the case of a Non-Transfer Event,
shall cease to own any right or interest) in such
number of shares of such class or series of Preferred
Stock that would cause such Beneficial Owner
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to Beneficially Own shares of such class or series of
Preferred Stock in excess of the Ownership Limit and
(ii) such number of shares of such class or series of
Preferred Stock in excess of the Ownership Limit
(rounded up to the nearest whole share) shall be
designated as Excess Shares and, in accordance with
Section 7.12, be transferred automatically and by
operation of law to the Trust for the benefit of the
Beneficiary. Such transfer to a Trust and the
designation of the shares as Excess Shares shall be
effective as of the close of business on the business
day prior to the date of the purported Transfer or
Non-Transfer Event, as the case may be.
(b) If, notwithstanding the other provisions contained in
this Article 7, at any time from and after the date
of the Initial Public Offering and prior to the
Restriction Termination Date, there is a purported
Transfer or Non-Transfer Event that, if effective,
would cause the Corporation to become "closely held"
within the meaning of Section 856(h) of the Code or
to otherwise fail to qualify as a REIT (other than as
a result of a violation of the 100-shareholder
requirement of Section 856(a)(5)), then (i) except as
otherwise provided in Section 7.9, the Prohibited
Owner shall acquire no right or interest (or, in the
case of a Non-Transfer Event, shall cease to own any
right or interest) in such number of shares of
Preferred Stock, the ownership of which by such
purported transferee or record holder would cause the
Corporation to be "closely held" within the meaning
of Section 856(h) of the Code or to otherwise fail to
qualify as a REIT (other than as a result of a
violation of the 100- shareholder requirement of
Section 856(a)(5)) and (ii) such number of shares of
Preferred Stock (rounded up to the nearest whole
share) shall be designated as Excess Shares and, in
accordance with the provisions of Section 7.12, be
transferred automatically and by operation of law to
the Trust for the benefit of the Beneficiary. Such
transfer to a Trust and the designation of shares as
Excess Shares shall be effective as of the close of
business on the business day prior to the date of the
Transfer or Non-Transfer Event, as the case may be.
7.4 Remedies for Breach
If the Board of Directors or a committee thereof shall at any time
determine in good faith that a Non-Transfer Event has occurred, a Transfer has
taken place in violation of Section 7.2 or that a Person intends to acquire or
has attempted to acquire or may acquire Beneficial Ownership of any shares of
Common Stock or Preferred Stock in violation of Section 7.2 (whether or not
such violation is intended), the Board of Directors shall be empowered to take
any action it deems advisable to refuse to give effect to or to prevent such
Transfer or Non-Transfer Event, including, but not limited to, refusing to give
effect to such Transfer or Non-Transfer Event on the books of the Corporation
or instituting proceedings to enjoin or rescind such Transfer or acquisition.
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7.5 Notice of Restricted Transfer.
Any Person who acquires or attempts to acquire shares of Common Stock
or Preferred Stock in violation of Section 7.2, or any Person who owned shares
of Preferred Stock that were transferred to a Trust pursuant to the provisions
of Section 7.3, shall immediately give written notice to the Corporation of
such event and shall provide to the Corporation such other information as the
Corporation may request in order to determine the effect, if any, of such
Transfer or Non-Transfer Event, as the case may be, on the Corporation's status
as a REIT. Failure to give such notice shall not in any way limit the rights
and remedies of the Board of Directors provided herein.
7.6 Owners Required to Provide Information.
From and after the date of the Initial Public Offering and prior to
the Restriction Termination Date:
(a) Every Beneficial Owner of more than 1% (or such lower
percentage as required in the applicable regulations
adopted under the Code) of any class or series of
Preferred Stock of the Corporation outstanding shall,
within 30 days after June 30 and December 31 of each
year, give written notice to the Corporation stating
the name and address of such Beneficial Owner, the
number of shares of such class or series of Preferred
Stock Beneficially Owned by such Beneficial Owner, a
full description of how shares are held and a
statement identifying the actual or constructive
owners of such shares. Each such Beneficial Owner
shall, upon demand by the Corporation, disclose to
the Corporation in writing such additional
information with respect to its Beneficial Ownership
of such class or series of Preferred Stock as the
Corporation, in its sole discretion, deems
appropriate or necessary, (i) to comply with the
provisions of the Code regarding the qualification of
the Corporation as a REIT and (ii) to ensure
compliance with the Ownership Limit.
(b) At the request of the Corporation, any Person who is
a Beneficial Owner of Common Stock or Preferred Stock
and any Person (including the shareholder of record)
who is holding Common Stock or Preferred Stock for a
Beneficial Owner, and any proposed transferee of
shares, shall provide (i) such information as the
Corporation, in its sole discretion, may request from
time to time in order (A) to determine the
Corporation's status as a REIT, (B) to ensure
compliance with the requirements of any taxing
authority or other governmental agency or (C) to
ensure compliance with the Ownership Limit and (ii) a
statement or affidavit to the Corporation setting
forth the number of shares of each class or series of
Common Stock or Preferred Stock Beneficially Owned by
such shareholder or proposed transferee and any
related Persons specified, which statement or
affidavit shall be in the form prescribed by the
Corporation for that purpose.
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7.7 Remedies Not Limited.
Nothing contained in this Article 7 shall limit the authority of the
Board of Directors to take such other action as it deems necessary or advisable
(subject to the provisions of Section 7.13) to protect the Corporation and the
interests of its shareholders in the preservation of the Corporation's status
as a REIT, and to insure compliance with the Ownership Limit.
7.8 Ambiguity.
In the case of an ambiguity in the application of any of the
provisions of Article 7, including any definition contained in Section 7.1, the
Board of Directors shall have the power to determine the application of such
provisions with respect to any situation based on its reasonable belief,
understanding or knowledge of the circumstances.
7.9 Exceptions.
(a) The Board of Directors, upon receipt of a ruling from
the Internal Revenue Service or an opinion of tax
counsel satisfactory to it, may waive the application
of the Ownership Limit, in whole or in part, to any
Person, if such Person is not an individual for
purpose of Section 542(a) of the Code and is a
corporation, partnership, estate or trust; provided,
however, in no event may the Board of Directors grant
any such exception if it would, in the Board of
Director's judgment, jeopardize the Corporation's
status as a REIT. In connection with any such
exemption, the Board of Directors may require such
representations and undertakings from such Person and
may impose such other conditions as the Board of
Directors deems necessary, in its sole discretion to
determine the effect, if any, of the proposed
Transfer on the Corporation's status as a REIT.
(b) For a period of 90 days following the acquisition of
Preferred Stock by an underwriter that (i) is a
corporation or a partnership and (ii) participates in
an offering of the Preferred Stock, such underwriter
shall not be subject to the Ownership Limit with
respect to the Preferred Stock purchased by it as a
part of such offering.
7.10 Legend.
Each certificate for Preferred Stock shall bear the following legend:
"The shares of Preferred Stock represented by this certificate
are subject to restrictions on transfer for the purpose of the
Corporation's maintenance of its status as a Real Estate Investment
Trust under the Internal Revenue Code of 1986, as amended. No Person
may (1) Beneficially Own shares of any class or series of Preferred
Stock in excess of the Ownership Limit, except as set forth in the
Corporation's Restated Certificate of
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Incorporation, as the same may be amended from time to time (the
"Certificate of Incorporation"), or (2) Beneficially Own shares of
Preferred Stock that would result in the Corporation being "closely
held" under 856(h) of the Code or otherwise to fail as a REIT. Any
Person who attempts to Own Beneficially shares of Preferred Stock in
excess of the applicable limitation must immediately notify the
Corporation in writing. No Person may transfer shares of Preferred
Stock if such transfer would result in the outstanding Common Stock
and Preferred Stock being Beneficially Owned by less than 100 Persons
(determined without reference to any rules of attribution). If the
restrictions on transfer are violated, the shares of Preferred Stock
represented hereby will be transferred automatically and by operation
of law to a Trust and shall be designated Excess Shares. All
capitalized terms in this legend have the meanings ascribed to such
terms in the Certificate of Incorporation, a copy of which, including
the restrictions on transfer, will be sent without charge to each
stockholder who so requests."
7.11 Severability.
If any provision of this Article 7 or any application of any such
provision is determined to be void, invalid or unenforceable by any Federal or
state court having jurisdiction over the issues, the validity and
enforceability of the remaining provisions of this Restated Certificate of
Incorporation (including without limitation this Article 7) shall not be
affected and other applications of such provision shall be affected only to the
extent necessary to comply with the determination of such court.
7.12 Excess Shares.
(a) Ownership in Trust. Upon any purported
Transfer, Non-Transfer Event, Acquisition,
change in the capital structure of the
Corporation or purported change in Beneficial
Ownership or event or transaction that
results in shares of Preferred Stock being
designated Excess Shares pursuant to Section
7.3, such Excess Shares shall be transferred
to a Trust for the exclusive benefit of the
Beneficiary to whom an interest in such
Excess Shares may later be transferred
pursuant to Section 7.12(e). The Corporation
shall name a Beneficiary that is an
organization described in Section 501(c)(3)
of the Code, that is not an "individual"
within the meaning of Section 542 of the
Code, if one does not already exist, within
five (5) days after the discovery of any
Transfer to the Trust. Excess Shares so held
in trust shall remain issued and outstanding
stock of the Corporation and shall be
entitled to the same rights and privileges on
identical terms and conditions as all other
issued and outstanding shares of the same
class and series. When transferred to the
Permitted Transferee in accordance with the
provisions of Section 7.12(e), such Excess
Shares shall cease to be designated as Excess
Shares.
(b) Dividend Rights. Excess Shares shall not be
entitled to any dividends or distributions
(except as provided in Paragraph (c) of this
Section 7.12).
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Any dividend or distribution paid prior to the
discovery by the Corporation that the shares of
Preferred Stock have been exchanged for Excess Shares
shall be repaid by the original transferee to the
Corporation and by the Corporation to the trustee,
and any dividend or distribution declared but unpaid
at the time of such discovery shall be void ab initio
with respect to such Excess Shares.
(c) Rights Upon Liquidation. Except as provided below,
in the event of any voluntary or involuntary
liquidation, dissolution or winding up, or any other
distribution of the assets, of the Corporation, each
holder of Excess Shares resulting from the exchange
of Preferred Stock of any specified series shall only
be entitled to receive, ratably with each other
holder of Excess Shares resulting from the exchange
of shares of Preferred Stock of such series and each
holder of shares of Preferred Stock of such series,
the price paid by the original transferee for the
Excess Shares or, if no value was given, the price
per share equal to the closing market price on the
date of the purported transfer. The trustee of the
trust shall promptly sell the shares to any person
whose ownership is not prohibited, whereupon the
interest of the trust shall terminate. Proceeds of
the sale shall be paid to the original transferee up
to its purchase price (or, if the original transferee
did not purchase the shares, the value on its date of
acquisition) and any remaining proceeds shall be paid
to a charity to be named by the Corporation.
(d) Voting Rights. The holders of Excess Shares shall
not be entitled to vote on any matters. Any vote of
the shares while the shares were held by the original
transferee prior to the Corporation's discovery
thereof shall be void ab initio and the original
transferee shall be deemed to have given its proxy to
the trustee.
(e) Designation of Permitted Transferee. The Corporation
shall have the exclusive and absolute right to
designate a Permitted Transferee of any and all
Excess Shares. As soon as reasonably practicable, in
an orderly fashion so as not to materially adversely
affect the Market Price of the Excess Shares, the
Corporation shall designate any Person as Permitted
Transferee; provided, however, that (i) the Permitted
Transferee so designated purchases for valuable
consideration (whether in a public or private sale)
the Excess Shares and (ii) the Permitted Transferee
so designated may acquire such Excess Shares without
such acquisition resulting in a transfer to a Trust
and the redesignation of such shares of Preferred
Stock so acquired as Excess Shares under Section 7.3.
Upon the designation by the Corporation of a
Permitted Transferee in accordance with the
provisions of this paragraph, the Trustee of a Trust
shall (i) cause to be transferred to the Permitted
Transferee that number of Excess Shares acquired by
the Permitted Transferee; (ii) cause to be recorded
on the books of the
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Corporation that the Permitted Transferee is the
holder of record of such number of shares of
Preferred Stock; and (iii) distribute to the
Beneficiary any and all amounts held with respect to
the Excess Shares after making that payment to the
Prohibited Owner pursuant to Section 7.12(f).
(f) Compensation to Record Holder of Shares that Become
Excess Shares. Any Prohibited Owner shall be
entitled (following discovery of the Excess Shares
and subsequent designation of the Permitted
Transferee in accordance with Section 7.12(e)) to
receive from the Trustee the lesser of (i) in the
case of (a) a purported Transfer in which the
Prohibited Owner gave value for shares of Preferred
Stock and which Transfer resulted in the transfer of
the shares to the Trust, the price per share, if any,
such Prohibited Owner paid for such shares, or in the
case of (b) a Non-Transfer Event or Transfer in which
the Prohibited Owner did not give value for such
shares (e.g., if the shares were received through a
gift or devise) and which Non-Transfer Event or
Transfer, as the case may be, resulted in the
transfer of shares to the Trust, the price per share
equal to the Market Price on the date of such Non-
Transfer Event or Transfer, and (ii) the price per
share received by the Trustee of the Trust from the
sale or other disposition of such Excess Shares in
accordance with Section 7.12(e). Any amounts
received by the Trustee in respect of such Excess
Shares in excess of such amounts to be paid to the
Prohibited Owner pursuant to this Section 7.12(f)
shall be distributed to the Beneficiary in accordance
with the provisions of Section 7.12(e). Each
Beneficiary and Prohibited Owner waives any and all
claims that they may have against the Trustee and the
Corporation arising out of the disposition of Excess
Shares, except for claims arising out of the gross
negligence or willful misconduct of, or any failure
to make payments in accordance with this Section 7.12
by, such Trustee or the Corporation.
(g) Purchase Right in Excess Shares. Excess Shares shall
be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share
equal to the lesser of (i) the price per share in the
transaction that created such Excess Shares (or, in
the case of a devise or gift, the Market Price on the
date of such devise or gift) and (ii) the Market
Price on the date the Corporation, or its designee,
accepts such offer. The Corporation shall have the
right to accept such offer for a period of ninety
days after the later of (i) the date of the Transfer
which resulted in such Excess Shares and (ii) the
date the Board of Directors determines in good faith
that a Transfer resulting in Excess Shares has
occurred.
7.13 Settlement.
Notwithstanding any provision contained herein to the contrary,
nothing in this Certificate of Incorporation shall preclude the settlement of
any transaction with respect to any class or series of Preferred Stock entered
into through facilities of the Nasdaq System.
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AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates, integrates and amends the provisions of the Corporation's Certificate
of Incorporation, originally filed on March 18, 1997 in the office of the
Secretary of State of Delaware, having been duly adopted by the Board of
Directors and the Stockholders of the Corporation in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of Delaware,
has been executed this ____ day of ____________, 1997.
D&N CAPITAL CORPORATION
By:_____________________________________
Name:
Title:
[CORPORATE SEAL]
Attest: ____________________________
Name:
Title:
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