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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
MOLEX INCORPORATED
(Restated to include all amendments through October 28, 1997)
FIRST: The name of the corporation is
MOLEX INCORPORATED
SECOND: The address of its registered office in the State of Delaware is
NO. 100 WEST TENTH STREET, in the City of WILMINGTON, County of NEW CASTLE. The
name of its registered agent at such address is THE CORPORATION TRUST COMPANY.
THIRD: The nature of the business or purposes to be conducted or promoted
is:
Merchandise, manufacture, buy, sell, deal in and with plastic moldings,
electrical and electronic assemblies, electrical and electronic devices,
machines, tools, parts for tools or machines; and further to manufacture, buy,
sell, distribute, deal in and with goods, wares and merchandise or all kinds, at
wholesale or retail or on consignment.
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and
deal with goods, wares and merchandise and personal property of every class and
description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trade-marks and trade names, relating to
or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive, hold,
own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise
dispose of or deal in and with any of the shares of the capital stock, or any
voting trust certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint
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stock companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or other
political subdivision or by any governmental agency, and as owner thereof to
possess and exercise all the rights, powers and privileges of ownership,
including the right to execute consents and vote thereon, and to do any and all
acts and things necessary or advisable for the preservation, protection,
improvement and enhancement in the value thereof.
To borrow or raise moneys for any of the purposes of the corporation and,
from time to time without limit as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the interest
thereon by mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the corporation, whether at the time owned
or thereafter acquired, and to sell, pledge or otherwise dispose of such bonds
or other obligations of the corporation for its corporate purposes.
To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with real or personal property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of the corporation's property and assets,
or any interest therein, wherever situated.
In general, to possess and exercise all the powers and privileges granted
by the General Corporation Law of Delaware or by any other law of Delaware or by
this certificate of incorporation together with any powers incidental thereto,
so far as such powers and privileges are necessary or convenient to the conduct,
promotion or attainment of the business or purposes of the corporation.
The business and purposes specified in the foregoing clauses shall, except
where otherwise expressed, be in nowise limited or restricted by reference to,
or inference from, the terms of any other clause in this certificate of
incorporation, but the business and purposes specified in each of the foregoing
clauses of this article shall be regarded as independent business and purposes.
FOURTH:
A. AUTHORIZED CAPITAL STOCK
(1) COMMON STOCK: The total number of shares of common stock which the
corporation shall have authority to issue is FOUR HUNDRED MILLION ONE HUNDRED
FORTY-SIX THOUSAND SEVENTY-EIGHT (400,146,078) SHARES, consisting of: (i) TWO
HUNDRED MILLION (200,000,000 SHARES OF COMMON STOCK, par value $.05 per share
(the "COMMON STOCK"), subject to PARAGRAPH E OF THIS ARTICLE FOURTH, (ii) TWO
HUNDRED MILLION (200,000,000) SHARES OF CLASS A COMMON STOCK, par value $.05 per
share (the "CLASS A COMMON STOCK"), subject to PARAGRAPH E OF THIS ARTICLE
FOURTH and (iii) ONE HUNDRED FORTY-SIX THOUSAND SEVENTY-EIGHT (146,078)
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SHARES OF CLASS B COMMON STOCK, par value $.05 per share (the "CLASS B COMMON
STOCK").
(2) PREFERRED STOCK: The total number of shares of preferred stock which
the corporation shall have authority to issue is TWENTY FIVE MILLION
(25,000,000) SHARES, par value $.01 per share ("PREFERRED STOCK"). Shares of
Preferred Stock may be dividend into and issued in series or classes as from
time to time determined by the board of directors of the corporation, the shares
of each series or class to have such voting rights, designations, preferences,
and relative, participating, optional or special rights, and qualifications,
limitations or restrictions thereof as determined by the board of directors of
the corporation as hereinafter provided. Each series or class shall be so
designated as to distinguish the shares thereof from the shares of all other
series and classes.
Authority is hereby expressly granted to the board of directors of the
corporation, subject to the provisions of this ARTICLE FOURTH and to the
limitations prescribed by the General Corporation Law of Delaware, to authorize
the issuance of one or more series or classes of Preferred Stock and with
respect to each such series or class to fix for such series or class the voting
powers, designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof. The
authority of the board of directors of the corporation with respect to each
series or class shall include, but not be limited to, the determination or
fixing of the following:
(i) the designation of such series or class;
(ii) the dividend rate of such series or class, the conditions and
dates upon which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any
other class or classes of stock or any other series of such
dividends shall be cumulative or non-cumulative;
(iii) whether the shares of such series or class 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;
(iv) the terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series or class;
(v) whether or not the shares of such series or class shall be
convertible into or exchangeable for shares of any other class or
classes of any stock or any other series of any class of stock of
the corporation, and, if provision is made for conversion or
exchange, the times, prices, rates, adjustments, and other terms
and conditions of such conversion or exchange;
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(vi) the extent, if any, to which the holders of shares of such
series or class shall be entitled to vote with respect to the
election of directors or otherwise;
(vii) the restrictions, if any on the issue or reissue of any
additional Preferred Stock; and
(viii) the rights of the holders of the shares of such series or class
upon the liquidation, dissolution, or distribution of assets of
the corporation.
A statement of the designations of each class of common stock and the
powers, preferences and rights, qualifications, limitations or restrictions
thereof is as follows:
B. DIVIDENDS
After the corporation shall have complied with all the requirements, if
any, with respect to the setting aside of sums as purchase, retirement of
sinking funds, and subject to the priorities and preferences of the Preferred
Stock, then and not otherwise the holders of the Common Stock, Class A Common
Stock, and Class B Common Stock shall be entitled to receive such dividends if,
as and when declared from time to time by the board of directors. Dividends and
stock splits shall be declared and paid to holders of any class of common stock
only if such dividends and stock splits are declared and paid to holders of all
classes of common stock on an equal per share basis.
If at any time a distribution of Common Stock, Class B Common Stock, Class
A Common Stock or any other securities of the company is to be made to holders
of any class of common stock (hereinafter sometimes referred to as "SHARE
DISTRIBUTION"), such share distribution may be declared and paid only as
follows:
(i) a share distribution consisting of shares of Common Stock to
holders of Common Stock and Class B Common Stock on an equal per
share basis; provided, there shall also be a simultaneous share
distribution of Class A Common Stock to holders of Class A
Common Stock consisting of shares of Class A Common Stock on an
equal per share basis;
(ii) a share distribution consisting of shares of Class A Common
Stock to holders of Class A Common Stock on an equal per share
basis; provided, there shall also be a simultaneous share
distribution of Common Stock to holders of Common Stock and
Class B Common Stock on an equal per share basis; and
(iii) a share distribution consisting of any other class of
securities of the corporation to the holders of Common
Stock, Class B Common Stock
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and Class A Common Stock on an equal per share basis.
Notwithstanding the preceding sentence, a share distribution consisting of
shares of Class A Common Stock may be declared and paid to holders of Common
Stock and Class B Common Stock on an equal per share basis if such distribution
represents the initial issuance of shares of Class A Common Stock.
C. OTHER DISTRIBUTIONS
Notwithstanding anything to the contrary contained in ARTICLE THIRTEENTH
hereof, in the event of any merger or consolidation, voluntary or involuntary
liquidation, dissolution, distribution of assets of winding-up of the
corporation and subject to the priorities and preferences of the Preferred
Stock, each share of Common Stock, Class A Common Stock, and Class B Common
Stock shall entitle the holder thereof to receive the identical consideration
with respect to whatever kind of assets are available for distribution to
holders of common stock or stock into which shares of common stock of the
corporation are converted.
D. VOTING RIGHTS AND POWERS
(1) COMMON STOCK: Each holder of Common Stock shall be entitled to one
vote for each share of Common Stock held on any matter required to be approved,
by vote or otherwise, by the stockholders of the corporation.
(2) CLASS A COMMON STOCK: No share of Class A Common Stock shall
entitle the holder thereof to any vote, consent or approval with respect to any
matter requiring approval, by vote or otherwise, by the stockholders of the
corporation except as otherwise required by law.
(3) CLASS B COMMON STOCK: Each holder of Class B Common Stock shall be
entitled to one vote for each share of Class B Common Stock held by him upon any
matter coming before any annual or special meeting of the stockholders of the
corporation; and, so long as more than fifty percent (50%) of the authorized
number of shares of Class B Common Stock are outstanding, the holders of said
shares of Class B Common Stock shall vote as a separate class upon any corporate
matter, except the election of directors of the corporation, submitted to a vote
of the stockholders of the corporation at any annual or special meeting thereof,
and the approval of the holders of said shares of Class B Common Stock, voting
as a class, shall be a prerequisite to the adoption of any matter submitted to a
vote of the stockholders.
E. CONVERSION
In the event that at any time the board of directors determines, in good
faith, that either of the following events has occurred (i) the aggregate number
of outstanding shares of Common Stock and Class B Common Stock together is less
than 10% of the aggregate number of outstanding shares
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of Common Stock, Class B Common Stock, and Class A Common Stock together, or
(ii) any "person", as such term is defined in ARTICLE THIRTEENTH, PARAGRAPH B(1)
of this Certificate of Incorporation, other than one or more members of the
Krehbiel Family (as defined below), becomes or is the Beneficial Owner, as such
term is defined in ARTICLE THIRTEENTH, PARAGRAPH B(3) of this Certificate of
Incorporation, of a majority of the outstanding shares of Common Stock; each
authorized share of Class A Common Stock (whether or not then issued) shall
automatically be converted into one share of Common Stock. Upon such
conversion, the total number of shares of Common Stock the corporation shall
have authority to issue shall be ONE HUNDRED TWENTY MILLION (120,000,000) SHARES
and the total number of shares of Class A Common Stock the corporation shall
have authority to issue shall be zero (0) shares. Such conversion ratio as set
forth in this paragraph, shall, in all events, be equitably preserved in the
event of any recapitalization of the corporation by means of a stock dividend
on, or split or combination of outstanding Common Stock or Class A Common Stock,
or in the event of any merger, consolidation or other reorganization of the
corporation with another corporation. In making such determination, the board
of directors may conclusively rely on any information or documentation available
to it, including filings made with the Securities and Exchange Commission, any
stock exchange, the National Association of Securities Dealers, Inc. or any
other governmental or regulatory agencies, or any written instrument purporting
to be authentic. Upon the board of director's determination of the happening of
either of the events set forth in (i) or (ii) above, the shares of Class A
Common Stock shall be deemed without further action to be immediately and
automatically converted into shares of Common Stock, and stock certificates
formerly representing Class A Common Stock shall thereupon and thereafter be
deemed to represent a like number of shares of Common Stock. The determination
by the board of directors that either (i) or (ii) of this paragraph has occurred
shall be conclusive and binding and the conversion of each share of Class A
Common Stock into one share of Common Stock shall remain effective regardless of
whether either (i) or (ii) of this paragraph has occurred in fact.
As used herein, the term "KREHBIEL FAMILY" shall mean:
(i) John H. Krehbiel, John H. Krehbiel Jr. and Frederick A. Krehbiel
(collectively, the "KREHBIELS"), any of their respective
descendants, and any spouse, widow or widower of any of the
Krehbiels or any of their respective descendants (collectively,
the "FAMILY MEMBERS");
(ii) any trust established by one or more of the Family Members;
(iii) any estate of a Family Member;
(iv) any foundation and any charitable organization that qualifies as
an exempt organization under the Internal Revenue Code of 1986,
as amended, or any successor statute, established by one or more
of the Family Members; and
(v) any corporation or partnership of which a majority of the voting
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power and a majority of the equity interest is held, directly or
indirectly, by or for the benefit of one or more of the Family
Members.
Shares of Class B Common Stock shall be convertible into shares of the
Common Stock of the corporation at the option of the holder thereof at any time
on a share for share basis. Such conversion ratio shall in all events be
equitably preserved in the event of any recapitalization of the corporation by
means of a stock dividend on, or stock split or combination of, outstanding
Common Stock or Class B Common Stock, or in the event of any merger,
consolidation or other reorganization of the corporation with another
corporation. Upon the conversion of Class B Common Stock into shares of Common
Stock, said shares of Class B Common Stock shall be retired and shall not be
subject to reissue.
FIFTH: The name and mailing address of each incorporator is as follows:
Name Mailing Address
---- ---------------
S.E. Widdoes 100 West Tenth Street, Wilmington, Delaware
W.J. Reif 100 West Tenth Street, Wilmington, Delaware
R.A. Finger 100 West Tenth Street, Wilmington, Delaware
SIXTH: The name and mailing address of each person, who is to serve as a
director until the first annual meeting of the stockholders or until a successor
is elected and qualified, is as follows:
Name Mailing Address
---- ---------------
John H. Krehbiel, Sr. 2222 Wellington
Lisle, Illinois 60532
John H. Krehbiel, Jr. 2222 Wellington
Lisle, Illinois 60532
Frederick A. Krehbiel 2222 Wellington
Lisle, Illinois 60532
Marie Manatte 2222 Wellington
Lisle, Illinois 60532
SEVENTH: The corporation is to have perpetual existence.
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EIGHTH: In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed the mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. The by-laws may provide that in the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors,
or in the by-laws of the corporation, shall have and may exercise all the powers
and authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or by-laws expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
NINTH:
SECTION 1. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS.
To the fullest extent permitted by the Delaware General Corporation Law, as
the same exists or may hereafter be amended, a director of this corporation
shall not be liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
SECTION 2. INDEMNIFICATION AND INSURANCE.
(A) RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil,
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criminal, administrative or investigative (hereinafter a "PROCEEDING"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer, of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment), against all expenses,
liability and loss (including attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators: provided, however, that, except as provided in
paragraph (b) hereof, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the corporation. The right to indemnification conferred
in this Section shall be a contract right and shall include the right to be paid
by the corporation the expenses incurred in defending any such proceeding in
advance of its final disposition: provided, however, that if the Delaware
General Corporation Law requires, the payment of such expenses incurred by a
director or officer in his or her capacity as director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The corporation may, by action of its board of
directors, provide indemnification to employees and agents of the corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
(B) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph (a) of
this Section is not paid in full by the corporation within thirty days after a
written claim has been received by the corporation, the claimant may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim and if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its board of directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
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commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the corporation (including its board of directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard or
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(C) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(D) INSURANCE. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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 its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
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 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: Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation. Elections of directors
need not be by written ballot unless the by-laws of the corporation shall so
provide.
TWELFTH: The corporation reserves the right to amend, alter, change or
repeal any
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provision contained in this 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.
THIRTEENTH:
A. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
Notwithstanding PARAGRAPH D OF ARTICLE FOURTH, in addition to any
affirmative vote required by law or this Certificate of Incorporation, the
affirmative vote of holders of 75% of the outstanding shares of Common Stock and
Class B Common Stock that are beneficially owned by stockholders other than the
Interested Stockholder who is a party to the Business Combination of the
corporation with an Interested Stockholder; provided however, that such 75%
voting requirement shall not be applicable if:
(i) the Business Combination is solely between the corporation
and any Subsidiary and does not have the effect of increasing
the actual or potential voting power of such Interested
Stockholder; or
(ii) the Continuing Directors of the corporation, by at least a
majority vote of such Continuing Directors, have expressly
approved such Business Combination either in advance of or
subsequent to such Interested Stockholder's having become an
Interested Stockholder; or
(iii) all of the Minimum Price and Procedural Conditions are
satisfied.
B. CERTAIN DEFINITIONS
(1) The term "INTERESTED STOCKHOLDER" shall mean (a) any person other
than the corporation or a Subsidiary which, together with its Affiliates and
Associates, is the Beneficial Owner of an aggregate of 10% or more of the
outstanding shares of voting stock of the corporation, and (b) any Affiliate or
Associate of any such person; provided however, that the term Interested
Stockholder shall not include (i) a person whose acquisition of such aggregate
percentage of Common Stock and Class B Common Stock was approved in advance by
at least a majority of the Continuing Directors or (ii) any trustee or fiduciary
when acting in such capacity with respect to employee benefit plans of the
corporation or a Subsidiary. An Interested Stockholder shall be deemed the
Beneficial Owner of all Common Stock and Class B Common Stock of which any
Affiliate or Associate of such Interested Stockholder is the Beneficial Owner.
The term "PERSON" shall mean any individual, corporation, partnership or other
entity, including any group comprised of any person and any other person with
whom such person of any Affiliate or Associate thereof has any agreement,
arrangement or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of Common Stock or Class B Common Stock.
(2) The term "BUSINESS COMBINATION" includes, when entered into by the
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corporation or a Subsidiary with, or upon the proposal by, an Interested
Stockholder, the following transactions or series of related transactions:
(i) the acquisition, merger or consolidation of the
corporation or any Subsidiary;
(ii) any sale, lease, exchange, transfer or other disposition,
including without limitation, creation of any mortgage or
security interest, of any assets of the corporation or any
Subsidiary having a fair market value, as determined by at
least a majority of the Continuing Directors, equal to 10%
or more of the total consolidated assets of the corporation
(including without limitation, any voting securities of a
Subsidiary) as of the end of its most recent fiscal year
prior to the time the determination is being made;
(iii) the issuance or transfer of any securities of the
corporation or a Subsidiary having a fair market value of
10% or more, as determined by at least a majority of the
Continuing Directors, of the total consolidated assets of
the corporation as of the end of its most recent fiscal
year prior to the time the determination is being made, in
exchange for cash or property (including stock or other
securities);
(iv) the approval of a plan or proposal for the liquidation or
dissolution of the corporation or any Subsidiary;
(v) any reclassification of securities, recapitalization,
consolidation or any other transaction that would have the
direct or indirect effect of increasing the voting power
(whether or not then exercisable) of an Interested
Stockholder in any class or series of capital stock of the
corporation or any Subsidiary; and
(vi) any agreement, contract or other arrangement providing for
directly or indirectly any of the transactions described in
this definition of Business Combination.
(3) The term "BENEFICIAL OWNER" shall mean any person who beneficially
owns any Common Stock or Class B Common Stock within the meaning ascribed in
Rule 13d-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on the date of approval of this Article by the
stockholders of the corporation, or who has the right to acquire any such
beneficial ownership (whether or not such right is exercisable immediately)
pursuant to any agreement, contract, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise.
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(4) The term "CONTINUING DIRECTOR" shall mean a director of the corporation
who is not an Interested Stockholder entering into or proposing the Business
Combination at issue and (i) who was a member of the board of directors of the
corporation immediately prior to the time that such Interested Stockholder
became an Interested Stockholder or (ii) any successor to a Continuing Director
as described in (i) of this subparagraph (4) who is recommended or elected to
succeed a Continuing Director by the affirmative vote of a majority of the
Continuing Directors then on the board of directors of the corporation, provided
that, in either such case, such Continuing Director has continued in office
after becoming a Continuing Director.
(5) An Interested Stockholder shall be deemed to have acquired a share of
Common Stock or Class B Common Stock at the time when such Interested
Stockholder became the Beneficial Owner thereof. The price deemed to have been
paid by an Interested Stockholder for Common Stock or Class B Common Stock of
which an "Affiliate" or "Associate" is the Beneficial Owner shall be the price,
as determined by vote of at least a majority of the Continuing Directors, which
is the highest of (i) the price paid upon the acquisition thereof by the
relevant "Affiliate" or "Associate" (if any, and whether or not such "Affiliate"
or "Associate" was an "Affiliate" or "Associate" at the time of such
acquisition), (ii) the highest market price of the Common Stock or Class B
Common Stock at the time when the Interested Stockholder became the Beneficial
Owner thereof and (iii) the highest price previously paid by such Interested
Stockholder or an Affiliate or Associate thereof for such Common Stock or Class
B Common Stock.
(6) The term "SUBSIDIARY" means any entity which the corporation owns,
directly or indirectly, (i) a majority of the outstanding shares of equity
securities of such entity, or (ii) shares having a majority of the voting power
represented by all of the outstanding voting stock of such entity.
(7) "MINIMUM PRICE AND PROCEDURAL CONDITIONS" shall mean all of the
following conditions:
(i) the aggregate amount of cash and Fair Market Value, as of
the date of the consummation of the Business Combination (the
"CONSUMMATION DATE"), of consideration other than cash, to be
received per share of common stock in such Business Combination by
holders thereof, shall be at least equal in value to the higher of
(a) the highest per share price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees (with
appropriate adjustments for recapitalizations, reclassifications,
stock splits, reverse stock splits and stock dividends) paid by
the Interested Stockholder in acquiring any shares of Common Stock
or Class B Common Stock within the three year period immediately
prior to the first public announcement of the proposed Business
Combination or the per share price paid by the Interested
Stockholder in the transaction in which it became an Interested
Stockholder, whichever
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is higher, or (b) the Fair Market Value per share of Common Stock
as determined by the Continuing Directors on the date the
Business Combination is first publicly announced;
(ii) the Business Combination shall be consummated within the three
year period after the later of (a) the date the Interested
Stockholder became an Interested Stockholder or (b) the first
public announcement of the proposed Business Combination;
(iii) after such Interested Stockholder has become an Interested
Stockholder and prior to the Consummation Date, (a) there shall
have been (i) no reduction in the annual rate of dividends paid
on the common stock of the corporation (except as necessary to
reflect any stock dividend or stock split or distribution with
respect to the common stock,), except as approved by the
affirmative vote of a majority of the Continuing Directors, and
(ii) an increase in such annual rate of dividends as necessary to
reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of
the common stock, unless the failure so to increase such annual
rate is approved by the affirmative vote of a majority of the
Continuing Directors; (b) such Interested Stockholder shall not
have become the Beneficial Owner of any additional shares of
voting stock of the corporation except as part of the transaction
which results in such Interested Stockholder becoming an
Interested Stockholder; (c) neither such Interested Stockholder
nor any Affiliate or Associate thereof shall have received the
benefit, directly or indirectly (except proportionately as a
stockholder of the corporation), of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the corporation; and
(d) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the General Rules and
Regulations thereunder (or any subsequent provisions replacing
such Act, rules or regulations) and disclosing the terms and
conditions of the proposed Business Combination shall be mailed
to the stockholders of the corporation at least 30 days prior to
the Consummation Date (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or
subsequent provisions thereof).
(8) The term "FAIR MARKET VALUE" shall mean (i) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of
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a share of such stock on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not reported on the Composite Tape, on the New York
Stock Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the Exchange Act on
which such stock is listed or, if such stock is not listed on any such exchange,
the highest closing bid quotation with respect to a share of such stock during
the 30-day period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any similar interdealer
quotation system then in use, or, if no such quotation is available, the fair
market value on the date in question of a share of such stock as determined by a
majority of the Continuing Directors in good faith; and (ii) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined by a majority of the Continuing Directors in good
faith.
(9) The terms "AFFILIATE" and "ASSOCIATE" shall have the same meaning as
in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934 s in effect on the date of the approval of this Article by the
stockholders of the corporation.
The Continuing Directors shall have the power to make all determinations
with respect to the definitions as set forth in this SECTION B OF ARTICLE
THIRTEENTH.
This ARTICLE THIRTEENTH shall be subject to the provisions of ARTICLE
FOURTH hereof.
C. AMENDMENTS, ALTERATION, OR REPEAL OF ARTICLE THIRTEENTH
In addition to any requirements of law and any other provisions of this
Certificate of Incorporation or any resolution or resolutions of the board of
directors adopted pursuant to this Certificate of Incorporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Certificate of Incorporation or any such resolutions), the affirmative vote of
the holders of 75% of the then outstanding Common Stock held by stockholders
other than an Interested Stockholder and Class B Common Stock shall be required
to amend, alter or repeal, or adopt any provision inconsistent with the
requirements of, this Article.
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