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EXHIBIT 3-a-1
RESTATED
CERTIFICATE OF INCORPORATION
OF
ROCKWELL INTERNATIONAL CORPORATION
(As Amended December 6, 1996)
FIRST: The name of the Corporation is
ROCKWELL INTERNATIONAL CORPORATION
SECOND: The Corporation's registered office in the State of Delaware is located
at 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name and address of its registered agent is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
THIRD: The nature of the business, or objects or purposes to be transacted,
promoted or carried on, are: To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 1,125,000,000, of which
25,000,000 shares without par value are to be of a class designated Preferred
Stock, 1,000,000,000 shares of the par value of $1 each are to be of a class
designated Common Stock, and 100,000,000 shares of the par value of $1 each are
to be of a class designated Class A Common Stock, subject, however, to the
provisions of paragraph 3.4 below.
In this Article Fourth, any reference to a section or paragraph, without
further attribution, within a provision relating to a particular class of stock
is intended to refer solely to the specified section or paragraph of the other
provisions relating to the same class of stock.
COMMON STOCK AND CLASS A COMMON STOCK
The Common Stock and Class A Common Stock shall have the following
voting powers, designations, preferences and relative, participating,
optional and other special rights, and qualifications, limitations or
restrictions thereof:
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1. Dividends.
1.1. Whenever the full dividends upon any outstanding Preferred Stock
for all past dividend periods shall have been paid and the full
dividends thereon for the then current respective dividend periods
shall have been paid, or declared and a sum sufficient for the
respective payments thereof set apart, the holders of shares of the
Common Stock and Class A Common Stock shall be entitled to receive
such dividends and distributions, payable in cash or otherwise, as may
be declared thereon by the Board of Directors from time to time out of
assets or funds of the Corporation legally available therefor,
provided that all such dividends or distributions shall be paid or
made in equal amounts, share for share, to the holders of the Common
Stock and Class A Common Stock as if a single class, except that (a)
in the event that any dividend shall be declared in shares of Common
Stock or Class A Common Stock, such dividend shall be declared at the
same rate per share on Common Stock and Class A Common Stock, but the
dividend payable on shares of Common Stock shall be payable in shares
of Common Stock, and the dividend payable on shares of Class A Common
Stock shall be payable in shares of Class A Common Stock; and (b) any
dividend described in paragraph 1.2 below may be paid as therein
described. If the Corporation shall in any manner split, subdivide or
combine the outstanding shares of Common Stock or Class A Common
Stock, the outstanding shares of the other such class of stock shall
be split, subdivided or combined in the same manner proportionately
and on the same basis per share. Following the distribution of shares
of Class A Common Stock to the holders of shares of Class A Common
Stock, par value $1 per share, of Rockwell International Corporation,
a Delaware corporation ("Oldco Class A Common Stock"), on the record
date fixed for determining the holders thereof entitled to receive the
distribution (such record date being herein referred to as the
"Distribution Record Date"), the Corporation shall not issue any
shares of Class A Common Stock except (x) pursuant to this paragraph
1.1; (y) upon exercise of employee stock options (whether or not
outstanding or exercisable on the Distribution Record Date); and (z)
in connection with any contribution made by the Corporation to any
employee benefit or stock ownership plan of the Corporation.
1.2. In the event the Corporation shall distribute to the holders of
the shares of Common Stock and Class A Common Stock the common stock
or substantially equivalent equity securities of any subsidiary of the
Corporation, the Board of Directors shall have power, but shall not be
obligated, to capitalize or recapitalize such subsidiary with classes
of common equity having the powers, designations, preferences, and
relative, participating, optional, or other special rights and
qualifications, limitations, and restrictions thereof, corresponding,
respectively, insofar as practicable, to those of the Common Stock and
the Class A Common Stock,
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and the Board of Directors of the Corporation shall have the power, but
shall not be obligated, to distribute to the holders of shares of the
Common Stock, the shares of the subsidiary with rights corresponding to
those of the Common Stock, and to distribute to the holders of shares
of the Class A Common Stock, the shares of the subsidiary with rights
corresponding to those of the Class A Common Stock; provided, that
holders of shares of Common Stock and holders of shares of Class A
Common Stock shall respectively receive the same number of shares of
such subsidiary per share of Common Stock and per share of Class A
Common Stock held.
2. Rights on Liquidation. In the event of any liquidation, dissolution
or winding-up of the Corporation, whether voluntary or involuntary,
after the payment or setting apart for payment to the holders of any
outstanding Preferred Stock of the full preferential amounts to which
such holders are entitled as herein provided or referred to, all of
the remaining assets of the Corporation shall belong to and be
distributable in equal amounts per share to the holders of the Common
Stock and the holders of Class A Common Stock, as if such classes
constituted a single class. For purposes of this paragraph 2, a
consolidation or merger of the Corporation with any other corporation,
or the sale, transfer or lease of all or substantially all its assets
shall not constitute or be deemed a liquidation, dissolution or
winding-up of the Corporation.
3. Conversion of Class A Common Stock.
3.1. The holders of Class A Common Stock shall have the right, at
their option, to convert any or all such shares into shares of Common
Stock of the Corporation on the following terms and conditions:
(i) Each share of Class A Common Stock shall be convertible,
at any time, at the office of any transfer agent for shares
of Common Stock of the Corporation, and at such other place
or places, if any, as the Board of Directors may determine,
into one fully paid and nonassessable share of Common Stock
of the Corporation upon surrender at such office or other
place of the certificate or certificates representing the
shares of Class A Common Stock so to be converted. In no
event, upon conversion of any shares of Class A Common Stock
into shares of Common Stock, shall any allowance or
adjustment be made in respect of dividends on the Class A
Common Stock or the Common Stock.
(ii) Shares of Class A Common Stock shall be deemed to have
been converted and the person converting the same shall
become a holder of shares of Common Stock for the purpose of
receiving dividends and for all other
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purposes whatsoever as of the date when the certificate or
certificates for the shares of Class A Common Stock to be
converted are surrendered to the Corporation as provided in
paragraph 3.1(v).
(iii) A number of shares of Common Stock sufficient to
provide, upon the basis hereinbefore set forth, for the
conversion of all shares of the Class A Common Stock
outstanding shall at all times be reserved by the Corporation
for the exercise of the conversion rights of the holders of
shares of the Class A Common Stock.
(iv) If the Corporation shall, at any time, be consolidated
or merged with, or shall sell its property as an entirety or
substantially as an entirety to, any other corporation or
corporations, or in the event of any recapitalization or
reclassification of its shares, proper provisions shall be
made as a part of the terms of each such consolidation,
merger, sale, recapitalization or reclassification so that
the holder of any shares of the Class A Common Stock
outstanding immediately prior to such consolidation, merger,
sale, recapitalization or reclassification shall thereafter
be entitled to and only entitled to conversion rights upon
the terms and with respect to such securities of the
consolidated, merged or purchasing corporation, or with
respect to such securities issued upon such recapitalization
or reclassification, as such holder would have been entitled
to receive upon such consolidation, merger, sale,
recapitalization or reclassification if such holder had
exercised the conversion privilege immediately prior thereto.
The provisions of this paragraph 3.1(iv) shall similarly
apply to successive consolidations, mergers, sales,
recapitalizations or reclassifications.
(v) Before any holder of Class A Common Stock shall be
entitled to convert the same into Common Stock, he shall
surrender his certificate or certificates for such Class A
Common Stock to the Corporation at the office of a transfer
agent for the Common Stock, or at such other place or places,
if any, as the Board of Directors may determine, duly
endorsed or accompanied if appropriate by duly executed
instruments of transfer and shall give written notice to the
Corporation at said office or place that he elects so to
convert the shares of Class A Common Stock represented by the
certificate or certificates so surrendered. Unless the Common
Stock is to be issued in the name of the registered owner of
the certificates surrendered, the holder shall state in
writing the name or names in which he wishes the certificate
or certificates for Common Stock to be issued, and shall
furnish all requisite stock transfer
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and stock issuance tax stamps, or funds therefor. The
Corporation shall as soon as practicable after such deposit of
certificates for Class A Common Stock, accompanied by the
written notice above prescribed, issue and deliver, at the
office or place at which such certificates were deposited, to
the person for whose account Class A Common Stock was so
surrendered, or to his nominee or nominees, certificates for
the number of full shares of Common Stock to which he shall be
entitled as aforesaid.
3.2. All outstanding shares of Class A Common Stock shall
automatically, without any act or deed on the part of the Corporation
or any other person, be converted into shares of Common Stock on a
share-for-share basis (i) at any time after the Distribution when the
total number of shares of Class A Common Stock outstanding and
reserved for issuance upon exercise of employee stock options is less
than 10,000,000; (ii) on February 23, 1997, the tenth anniversary of
the record date for the initial issuance of Oldco Class A Common Stock
unless prior thereto the Board of Directors shall have extended the
date for such conversion on one or more occasions but in no event to a
date later than February 23, 2002; (iii) if at any time the Board of
Directors, in its sole discretion, determines that there has been a
material adverse change in the liquidity, marketability, or market
value of the outstanding Common Stock due to a delisting of the
Common Stock from a national securities exchange or a national
over-the-counter listing or due to requirements under applicable state
securities laws in any such case attributable to the existence of the
Class A Common Stock; or (iv) if the Board of Directors, in its sole
discretion, elects to effect a conversion in connection with its
approval of any sale or lease of all or substantially all of the
Corporation's assets or any merger, consolidation, liquidation or
dissolution of the Corporation. In the event of any such automatic
conversion, each stock certificate theretofore representing Class A
Common Stock will thereafter represent the same number of shares of
Common Stock.
3.3. The provisions of this paragraph 3 shall be in addition to the
provisions of paragraphs 5.1(i)(A)(3), 5.1(ii) and 5.1(iv), which
require automatic conversion of Class A Common Stock in the
circumstances provided therein.
3.4. Shares of the Class A Common Stock converted into Common Stock as
provided in paragraph 3.1 or paragraph 5 shall resume the status of
authorized but unissued shares of Class A Common Stock. Upon any
automatic conversion of Class A Common Stock into Common Stock
pursuant to paragraph 3.2, the Class A Common Stock shall no longer be
authorized for issuance.
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4. Voting.
4.1. Except as otherwise provided by the laws of the State of Delaware
or by this Article Fourth, each share of Common Stock shall entitle
the holder thereof to one vote.
4.2. Except as otherwise provided by the laws of the State of Delaware
or by this Article Fourth, each share of Class A Common Stock shall
entitle the holder thereof to ten votes. Except as otherwise provided
herein or required by law, holders of Common Stock and Class A Common
Stock shall at all times vote on all matters (including the election
of directors) together as one class and together with the holders of
any other series or class of stock of the Corporation accorded such
class voting right.
4.3. The affirmative vote of the holders of a majority of the
outstanding shares of Common Stock and of Class A Common Stock, each
voting separately as a class, shall be required to:
(i) authorize additional shares of Class A Common Stock;
(ii) modify or eliminate the last sentence of paragraph 1.1,
above; or
(iii) adopt any other amendment hereof that alters or
changes the designations or powers or the preferences,
qualifications, limitations, restrictions or the relative or
special rights of either the Common Stock or the Class A
Common Stock so as to affect holders of shares of such class
adversely.
5. Limitations on Transfer and Issuance of Class A Common Stock.
5.1. (i) No person holding any share of Class A Common Stock may
transfer, and the Corporation shall not register the transfer of such
share of Class A Common Stock or any interest therein, whether by
sale, assignment, gift, bequest, appointment or otherwise, except to
a "Permitted Transferee" of such person. The term "Permitted
Transferee" shall mean only,
(A) In the case of a holder of Class A Common Stock
(a "Holder") who is a natural person and the holder
of record and beneficial owner of shares subject to
a proposed transfer, "Permitted Transferee" means:
(1) The Holder, the spouse of such Holder, any
lineal descendant of a grandparent of such Holder,
or any spouse of such lineal descendant (herein
collectively referred to as "such Holder's Family
Members"); (2) The trustee of a trust solely for
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the benefit of such Holder or such Holder's Family
Members, provided that such trust may also grant a
general or special power of appointment to one or
more of such Holder's Family Members and may permit
trust assets to be used to pay taxes, legacies and
other obligations of the trust or of the estates of
one or more of such Holder's Family Members payable
by reason of the death of any of such Family Members;
(3) A corporation if all of the outstanding capital
stock of such corporation is beneficially owned by,
or a partnership if all of the partners are and all
of the partnership interests are beneficially owned
by, the Holder and his Permitted Transferees
determined under this paragraph 5.1(i)(A), provided
that if by reason of any change in the ownership of
such stock or partners or partnership interests, such
corporation or partnership would no longer qualify as
a Permitted Transferee of such Holder or his
Permitted Transferees, all shares of Class A Common
Stock then held by such corporation or partnership
shall immediately and automatically, without further
act or deed on the part of the Corporation or any
other person, be converted into shares of Common
Stock on a share-for-share basis, and stock
certificates formerly representing such shares of
Class A Common Stock shall thereupon and thereafter
be deemed to represent the like number of shares of
Common Stock; (4) An organization established by the
Holder or such Holder's Family Members, contributions
to which are deductible for federal income, estate or
gift tax purposes; or (5) The executor, administrator
or personal representative of the estate of such
Holder or the guardian or conservator of such Holder
adjudged disabled by a court of competent
jurisdiction, acting in his capacity as such.
(B) In the case of a Holder holding the shares
subject to a proposed transfer as trustee pursuant
to a trust (other than a trust described in
paragraph 5.1(i)(C) below), "Permitted Transferee"
means (1) the person who established such trust and
(2) any Permitted Transferee of such person
determined pursuant to paragraph 5.1(i)(A) above.
(C) In the case of a Holder holding shares subject
to a proposed transfer as trustee pursuant to a
trust which was irrevocable on the Distribution
Record Date, "Permitted Transferee" means (1) any
person to whom or for whose benefit principal may be
distributed either during or at the end of the term
of such trust whether by power of appointment
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or otherwise (excluding beneficiaries of any employee
benefit plan) and (2) any Permitted Transferee of any
such person determined pursuant to paragraph
5.1(i)(A) above.
(D) In the case of a Holder which is a partnership
or corporation, with respect to shares of Class A
Common Stock beneficial ownership of which was
acquired pursuant to the Distribution or thereafter
pursuant to a dividend paid in shares of Class A
Common Stock or a split, subdivision or combination
of shares of Class A Common Stock, "Permitted
Transferee" means (1) any partner of such
partnership, or shareowner of such corporation,
receiving such shares pro rata to his interest in
such partnership or stock ownership in such
corporation on the Distribution Record Date pursuant
to a liquidating distribution or a dividend or (2)
any Permitted Transferee of any partner or
shareowner to the extent that he is a Permitted
Transferee pursuant to the foregoing clause (1)
determined under paragraph 5.1(i)(A) above.
(E) In the case of a Holder which is a corporation
or partnership, with respect to shares of Class A
Common Stock other than as described in paragraph
5.1(i)(D), "Permitted Transferee" means (1) any
person who transferred to such corporation or
partnership the shares that are the subject of the
proposed transfer and (2) any Permitted Transferee
of any such person determined under paragraph
5.1(i)(A) above.
(F) In the case of a Holder which is an employee
benefit or stock ownership plan for the benefit of
employees of the Corporation or any of its
subsidiaries, "Permitted Transferee" shall include
any beneficiary of such plan to whom shares of stock
of the Corporation may be distributed, but only as
to shares so distributable.
(G) In the case of a Holder who is the executor,
administrator or personal representative of the
estate of a deceased Holder, guardian or conservator
of the estate of a disabled Holder or who is a
trustee of the estate of a bankrupt or insolvent
Holder, and provided such deceased, disabled,
bankrupt or insolvent Holder, as the case may be,
was the record and beneficial owner of the shares
subject to a proposed transfer, "Permitted
Transferee" means a Permitted Transferee of such
deceased, disabled, bankrupt or insolvent Holder as
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determined pursuant to paragraph 5.1(i)(A), (D) or
(E) above, as the case may be.
(ii) Notwithstanding anything to the contrary set forth
herein, any holder of Class A Common Stock may pledge his
shares of Class A Common Stock to a pledgee pursuant to a
bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares
may not be transferred to or registered in the name of the
pledgee unless such pledgee is a Permitted Transferee. In the
event of foreclosure or other similar action by the pledgee,
such pledged shares of Class A Common Stock shall
automatically, without any act or deed on the part of the
Corporation or any other person, be converted into shares of
Common Stock on a share-for-share basis, unless within five
business days after such foreclosure or similar event such
pledged shares are returned to the pledgor or transferred to
a Permitted Transferee of the pledgor.
(iii) For purposes of this paragraph 5.1:
(A) The relationship of any person that is derived
by or through legal adoption shall be considered a
natural one.
(B) Each joint owner of shares of Class A Common
Stock shall be considered a Holder of such shares.
(C) A minor for whom shares of Class A Common Stock
are held pursuant to a Uniform Gifts to Minors Act
or similar law shall be considered a Holder of such
shares.
(D) Unless otherwise specified, the term "person"
means both natural persons and legal entities.
(iv) Any purported transfer of Class A Common Stock other
than to a Permitted Transferee shall automatically, without
any further act or deed on the part of the Corporation or any
other person, result in the conversion of such shares into
shares of Common Stock on a share-for-share basis, effective
on the date of such purported transfer. The Corporation may,
as a condition to transfer or registration of transfer of
shares of Class A Common Stock to a purported Permitted
Transferee, require that the record holder establish to the
satisfaction of the Corporation, by filing with the transfer
agent an appropriate affidavit or certificate or such other
proof as the Corporation shall deem necessary, that such
transferee is a Permitted Transferee.
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5.2. Anything in this Article Fourth to the contrary notwithstanding,
no share of Class A Common Stock may be held of record but not
beneficially by a broker or dealer in securities, a bank or voting
trustee or a nominee of any such, or otherwise held of record but not
beneficially by a nominee of the beneficial owner of such share other
than by an employee benefit or stock ownership plan of the Corporation
(any such form of holding being referred to herein as holding in
"street" or nominee name) and the Corporation shall issue a share of
Common Stock for each share of Class A Common Stock that would
otherwise be issuable to such nominee in any instance in which the
Corporation reasonably believes that the proposed record holder
intends to hold any such share in "street" or nominee name for the
beneficial owner thereof; provided, however, that if any person
establishes to the satisfaction of the Corporation in accordance with
this paragraph 5.2 that he is the beneficial owner of any such share
of Class A Common Stock, the Corporation shall issue such share in the
name of such beneficial owner. Any such beneficial owner who desires
to have shares of Class A Common Stock issued in his name under the
circumstances described in this paragraph 5.2 shall file an affidavit
or certificate with the Secretary of the Corporation setting forth the
name and address of such beneficial owner and certifying that he is
the beneficial owner of shares of Oldco Class A Common Stock held in
"street" or nominee name in respect of which the shares of Class A
Common Stock are to be issued. Any such affidavit or certificate shall
be deemed filed only if it is satisfactory in form to the Corporation
and received within 30 days after the Distribution Record Date. If
such affidavit or certificate shall not establish to the satisfaction
of the Corporation the facts stated therein, then the Corporation
shall issue to such beneficial owner Common Stock as provided in this
paragraph 5.2.
5.3. The Corporation shall note on the certificates representing the
shares of Class A Common Stock that there are restrictions on transfer
and registration of transfer imposed by paragraphs 5.1 and 5.2.
5.4. (i) For purposes of this paragraph 5, "beneficial ownership"
shall mean possession of the power to vote or to direct the
vote and to dispose of or to direct the disposition of the
share of Class A Common Stock in question, and a "beneficial
owner" of a share of Class A Common Stock shall be the person
having beneficial ownership thereof.
(ii) The Board of Directors may, from time to time, establish
practices and procedures and promulgate rules and
regulations, in addition to those set forth in this Article
Fourth, and amend or revoke any such, regarding
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the evidence necessary to establish entitlement of any
transferee or purported transferee of Class A Common Stock to
be registered as such. Should the transferee or purported
transferee of any share wish to contest any decision of the
Corporation on the question whether the transferee or
purported transferee has established entitlement to be
registered as a transferee of Class A Common Stock, then the
Board of Directors shall in its sole discretion make the final
determination.
6. Other Matters. In case the Corporation shall at any time issue to
the holders of its shares of Common Stock as such options or rights to
subscribe for shares of Common Stock (including shares held in the
Corporation's treasury) or any other security (whether of the
Corporation or otherwise), the Corporation shall issue such options or
rights to the holders of the Class A Common Stock in the respective
amounts equal to the amounts that such holders would have been
entitled to receive had their respective shares of Class A Common
Stock been converted into Common Stock on the day prior to the date
for the determination of the holders of Common Stock entitled to
receive such options or rights.
PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized to provide for the
issuance of shares of Preferred Stock in series and, by filing a
certificate pursuant to the applicable law of the State of Delaware
(hereinafter referred to as a "Preferred Stock Designation"), to
establish from time to time the number of shares to be included in
each such series, and to fix the designation, powers, preferences and
rights of the shares of each such series and the qualifications,
limitations and restrictions thereof. The authority of the Board of
Directors with respect to each series shall include, but not be
limited to, determination of the following:
(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise
provided in the Preferred Stock Designation) increase or
decrease (but not below the number of shares thereof then
outstanding);
(c) whether dividends, if any, shall be cumulative or
noncumulative and the dividend rate of the series;
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(d) the dates at which dividends, if any, shall be payable;
(e) the redemption rights and price or prices, if any, for
shares of the series;
(f) the terms and amount of any sinking fund provided for
the purchase or redemption of shares of the series;
(g) the amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation;
(h) whether the shares of the series shall be convertible
into shares of any other class or series, or any other
security, of the Corporation or any other corporation, and,
if so, the specification of such other class or series or
such other security, the conversion price or prices or rate
or rates, any adjustments thereof, the date or dates as of
which such shares shall be convertible and all other terms
and conditions upon which such conversion may be made;
(i) restrictions on the issuance of shares of the same
series or of any other class or series; and
(j) the voting rights, if any, of the holders of shares of
the series.
Except as may be provided in this Certificate of Incorporation or in a
Preferred Stock Designation, the Common Stock and the Class A Common
Stock shall have the exclusive right to vote for the election of
directors and for all other purposes, and holders of Preferred Stock
shall not be entitled to receive notice of any meeting of shareowners
at which they are not entitled to vote. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below
the number of shares thereof then outstanding) by the affirmative vote
of the holders of a majority of the outstanding Common Stock and Class
A Common Stock, without a vote of the holders of the Preferred Stock,
or of any series thereof, unless a vote of any such holders is
required pursuant to any Preferred Stock Designation.
The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other
claim to, or interest in, such share on the part of any other person,
whether or not the Corporation shall have notice thereof, except as
expressly provided by applicable law.
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SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
1. Designation and Amount. A series of Preferred Stock, without par
value, is hereby created and shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock") and
the number of shares constituting the Series A Preferred Stock shall
be 2,500,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall
reduce the number of shares of Series A Preferred Stock to a number
less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A
Preferred Stock.
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2. Dividends and Distributions.
2.1. Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior
to the Series A Preferred Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in preference to the holders of
Common Stock or Class A Common Stock, and of any other junior stock of
the Corporation, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the second Monday
of March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other than
a dividend payable in shares of Common Stock or Class A Common Stock
or a subdivision of the outstanding shares of Common Stock or Class A
Common Stock (by reclassification or otherwise), declared on the
Common Stock or Class A Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of Series A Preferred Stock. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding
immediately prior to such event.
2.2. The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph 2.1 immediately
after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
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Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
2.3. Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, unless the date
of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
3.1. Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
shareowners of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
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3.2. Except as otherwise provided herein, in any other Preferred Stock
Designation creating a series of Preferred Stock or any similar stock,
or by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and Class A Common Stock and any
other capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a vote of
shareowners of the Corporation.
3.3. Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock and Class A
Common Stock as set forth herein) for taking any corporate action.
4. Certain Restrictions.
4.1. Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in paragraph 2 are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(a) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(b) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(c) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
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(d) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of
stock ranking on a parity with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
4.2. The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
subparagraph (a) of paragraph 4.1, purchase or otherwise acquire such
shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a
new series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Certificate of
Incorporation, or in any other Preferred Stock Designation creating a
series of Preferred Stock or any similar stock or as otherwise
required by law.
6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be
made (i) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares
of Series A Preferred Stock shall have received $100 per share, plus
an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock shall
be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of shares of
Common Stock, or (ii) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions
made ratably on the Series A Preferred Stock and all such parity stock
in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up.
In the event the Corpora-
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tion shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (i) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to
such event.
7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then in any
such case each share of Series A Preferred Stock shall at the same
time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal
to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
9. Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
10. Amendment. The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or
change the powers, preferences or special
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rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series A Preferred Stock, voting together as
a single class.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the shareowners of the Corporation shall not be
subject to the payment of corporate debts to any extent whatever.
SEVENTH: Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, the number of
directors of the Corporation shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by a majority of the
whole Board. A director need not be a shareowner. The election of directors of
the Corporation need not be by ballot unless the by-laws so require.
The directors, other than those who may be elected by the holders of any series
of Preferred Stock or any other series or class of stock, as provided herein or
in any Preferred Stock Designation, shall be divided into three classes, as
nearly equal in number as possible. One class of directors shall be initially
elected for a term expiring at the annual meeting of shareowners to be held in
1997, another class shall be initially elected for a term expiring at the
annual meeting of shareowners to be held in 1998, and another class shall be
initially elected for a term expiring at the annual meeting of shareowners to
be held in 1999. Members of each class shall hold office until their successors
are elected and shall have qualified. At each annual meeting of the shareowners
of the Corporation, commencing with the 1997 annual meeting, the successors of
the class of directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of shareowners held in the third year following
the year of their election.
Subject to the rights of the holders of any series of Preferred Stock, and
unless the Board of Directors otherwise determines, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
only by a majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall hold office for a term expiring at the
annual meeting of shareowners at which the term of office of the class to which
they have been elected expires and until such director's successor shall have
been duly elected and qualified. No decrease in the number of authorized
directors con-
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stituting the whole Board of Directors shall shorten the term of any incumbent
director.
Subject to the rights of the holders of any series of Preferred Stock or any
other series or class of stock, as provided herein or in any Preferred Stock
Designation, to elect additional directors under specific circumstances, any
director may be removed from office at any time, but only for cause and only by
the affirmative vote of the holders of at least 80 percent of the voting power
of the then outstanding capital stock of the Corporation (the "Capital Stock")
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class.
No director of the Corporation shall be liable to the Corporation or its
shareowners for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Corporation or its shareowners, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
This paragraph shall not eliminate or limit the liability of a director for any
act or omission occurring prior to the effective date of its adoption. No
repeal or modification of this paragraph, directly or by adoption of an
inconsistent provision of this Certificate of Incorporation, by the shareowners
of the Corporation shall be effective with respect to any cause of action,
suit, claim or other matter that, but for this paragraph, would accrue or arise
prior to such repeal or modification.
EIGHTH: Unless otherwise determined by the Board of Directors, no holder of
stock of the Corporation shall, as such holder, have any right to purchase or
subscribe for any stock of any class which the Corporation may issue or sell,
whether or not exchangeable for any stock of the Corporation of any class or
classes and whether out of unissued shares authorized by the Certificate of
Incorporation of the Corporation as originally filed or by any amendment
thereof or out of shares of stock of the Corporation acquired by it after the
issue thereof.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its shareowners or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or shareowner thereof, or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of
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section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the shareowners or class of shareowners of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the shareowners or class of
shareowners of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the shareowners or class of shareowners, of this Corporation, as the case
may be, and also on this Corporation.
TENTH:
1. Amendment of Certificate of Incorporation. From time to time any of the
provisions of the Certificate of Incorporation may be amended, altered or
repealed, and other provisions authorized by the statutes of the State of
Delaware at the time in force may be added or inserted in the manner at the
time prescribed by said statutes, and all rights at any time conferred upon the
shareowners of the Corporation by its Certificate of Incorporation are granted
subject to the provisions of this Article Tenth. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the voting power of the then outstanding
Voting Stock, voting together as a single class, shall be required to amend or
repeal Article Seventh, this Article Tenth or Article Twelfth or adopt any
provision inconsistent with any of the foregoing articles.
2. By-laws. The Board of Directors is expressly authorized to make, alter,
amend and repeal the by-laws of the Corporation, in any manner not inconsistent
with the laws of the State of Delaware or of the Certificate of Incorporation
of the Corporation, subject to the power of the holders of the Capital Stock to
alter or repeal the by-laws made by the Board of Directors; provided, that any
such amendment or repeal by shareowners shall require the affirmative vote of
the holders of at least 80% of the voting power of the then outstanding Voting
Stock, voting together as a single class.
ELEVENTH: The shareowner vote required to approve Business Combinations (as
hereinafter defined) shall be as set forth in this Article Eleventh.
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1. Higher Vote for Business Combinations. In addition to any
affirmative vote required by law, this Certificate of Incorporation or
the by-laws of the Corporation, and except as otherwise expressly
provided in Section 2 of this Article Eleventh, a Business Combination
shall not be consummated without the affirmative vote of the holders
of at least 80% of the combined voting power of the then outstanding
shares of the Voting Stock, voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a lesser percentage or separate class
vote may be specified, by law or in any agreement with any national
securities exchange or otherwise.
2. When Higher Vote Is Not Required. The provisions of Section 1
of this Article Eleventh shall not be applicable to a Business
Combination if the conditions specified in either of the following
paragraphs A or B are met.
A. Approval by Continuing Directors. The Business Combination
shall have been approved by at least two-thirds of the
Continuing Directors (as hereinafter defined), whether such
approval is made prior to or subsequent to the date on which
the Interested Shareowner (as hereinafter defined) became an
Interested Shareowner (the "Determination Date").
B. Price and Procedure Requirements. Each of the seven
conditions specified in the following subparagraphs (i)
through (vii) shall have been met:
(i) The aggregate amount of the cash and the Fair
Market Value (as hereinafter defined) as of the date
of the consummation of the Business Combination (the
"Consummation Date") of any consideration other than
cash to be received per share by holders of Common
Stock in such Business Combination shall be an
amount at least equal to the higher amount
determined under clauses (a) and (b) below (the
requirements of this paragraph B (i) shall be
applicable with respect to all shares of Common
Stock outstanding, whether or not the Interested
Shareowner has previously acquired any shares of the
Common Stock): (a) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf
of the Interested Shareowner for any shares of
Common Stock acquired beneficially by it (1) within
the two-year period immediately prior to the first
public announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested
Shareowner, whichever is higher, plus interest
compounded annually from the Determination
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Date through the Consummation Date at the prime rate
of interest of Morgan Guaranty Trust Company of New
York (or other major bank headquartered in New York
City selected by at least two-thirds of the
Continuing Directors) from time to time in effect in
New York City, less the aggregate amount of any cash
dividends paid, and the Fair Market Value of any
dividends paid in other than cash, per share of
Common Stock from the Determination Date through the
Consummation Date in an amount up to but not
exceeding the amount of such interest payable per
share of Common Stock; and (b) the Fair Market Value
per share of Common Stock on the Announcement Date or
on the Determination Date, whichever is higher.
(ii) The aggregate amount of the cash and the Fair
Market Value as of the Consummation Date of any
consideration other than cash to be received per
share by holders of shares of any class or series of
outstanding Capital Stock, other than the Common
Stock, in such Business Combination shall be an
amount at least equal to the highest amount
determined under clauses (a), (b) and (c) below (the
requirements of this paragraph B(ii) shall be
applicable with respect to all shares of every class
or series of outstanding Capital Stock, other than
the Common Stock, whether or not the Interested
Shareowner has previously acquired any shares of a
particular class or series of Capital Stock):
(a) the highest per share price (including
any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on
behalf of the Interested Shareowner for any
shares of such class or series of Capital
Stock acquired beneficially by it (1)
within the two-year period immediately
prior to the Announcement Date or (2) in
the transaction in which it became an
Interested Shareowner, whichever is higher,
plus interest compounded annually from the
Determination Date through the Consummation
Date at the prime rate of interest of
Morgan Guaranty Trust Company of New York
(or other major bank headquartered in New
York City selected by at least two-thirds
of the Continuing Directors) from time to
time in effect in New York City, less the
aggregate amount of any cash dividends
paid, and the Fair Market Value of any
dividends paid in other than cash, per
share of such class or series of Capital
Stock from the Determination
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Date through the Consummation Date in an
amount up to but not exceeding the amount of
such interest payable per share of such
class or series of Capital Stock; and
(b) the Fair Market Value per share of such
class or series of Capital Stock on the
Announcement Date or on the Determination
Date, whichever is higher; and
(c) the highest preferential amount per
share to which the holders of shares of
such class or series of Capital Stock would
be entitled in the event of any voluntary
or involuntary liquidation, dissolution or
winding up of the affairs of the
Corporation, regardless of whether the
Business Combination to be consummated
constitutes such an event.
(iii) The consideration to be received by holders of
a particular class or series of outstanding Capital
Stock (including Common Stock) shall be in cash or
in the same form as previously has been paid by or
on behalf of the Interested Shareowner in its direct
or indirect acquisition of beneficial ownership of
shares of such class or series of Capital Stock. If
the consideration so paid for shares of any class or
series of Capital Stock varied as to form, the form
of consideration for such class or series of Capital
Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number
of shares of such class or series of Capital Stock
previously acquired by the Interested Shareowner.
(iv) After such Interested Shareowner has become an
Interested Shareowner and prior to the consummation
of such Business Combination, such Interested
Shareowner shall not have become the beneficial
owner of any additional shares of Capital Stock
except as part of the transaction that results in
such Interested Shareowner becoming an Interested
Shareowner and except in a transaction that, after
giving effect thereto, would not result in any
increase in the Interested Shareowner's percentage
beneficial ownership of any class or series of
Capital Stock; and, except as approved by at least
two-thirds of the Continuing Directors: (a) there
shall have been no failure to declare and pay at the
regular date therefor any full quarterly dividends
(whether or not cumulative) payable in accordance
with the terms of any outstanding Capital Stock; (b)
there shall have been no
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reduction in the annual rate of dividends paid on the
Common Stock (except as necessary to reflect any
stock split, stock dividend or subdivision of the
Common Stock); and (c) there shall have been an
increase in the annual rate of dividends paid on the
Common Stock as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing the
number of outstanding shares of Common Stock.
(v) After such Interested Shareowner has become an
Interested Shareowner, such Interested Shareowner
shall not have received the benefit, directly or
indirectly (except proportionately as a shareowner
of the Corporation), of any loans, advances,
guarantees, pledges or other financial assistance or
any tax credits or other tax advantages provided by
the Corporation, whether in anticipation of or in
connection with such Business Combination or
otherwise.
(vi) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934
and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or
regulations) shall be mailed to all shareowners of
the Corporation at least 30 days prior to the
consummation of such Business Combination (whether
or not such proxy or information statement is
required to be mailed pursuant to such Act or
subsequent provisions). The proxy or information
statement shall contain on the first page thereof,
in a prominent place, any statement as to the
advisability of the Business Combination that the
Continuing Directors, or any of them, may choose to
make and, if deemed advisable by at least two-thirds
of the Continuing Directors, the opinion of an
investment banking firm selected for and on behalf
of the Corporation by at least two-thirds of the
Continuing Directors as to the fairness of the terms
of the Business Combination from a financial point
of view to the holders of the outstanding shares of
Capital Stock other than the Interested Shareowner
and its Affiliates or Associates (as hereinafter
defined).
(vii) Such Interested Shareowner shall not have made
any material change in the Corporation's business or
equity capital structure without the
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approval of at least two-thirds of the Continuing
Directors.
Any Business Combination to which Section 1 of this Article
Eleventh shall not apply by reason of this Section 2 shall
require only such affirmative vote as is required by law, any
other provision of this Certificate of Incorporation, the
by-laws of the Corporation or any agreement with any national
securities exchange.
3. Certain Definitions. For the purposes of this Article Eleventh:
A. A "Business Combination" shall mean:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Shareowner or (ii) any other corporation (whether or not
itself an Interested Shareowner) which is, or after such
merger or consolidation would be, an Affiliate or Associate
of an Interested Shareowner; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) to or with any Interested Shareowner or any
Affiliate or Associate of any Interested Shareowner involving
any assets or securities of the Corporation, any Subsidiary
or any Interested Shareowner or any Affiliate or Associate of
any Interested Shareowner having an aggregate Fair Market
Value of $25,000,000 or more; or
(iii) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of an Interested Shareowner or any Affiliate or
Associate of any Interested Shareowner; or
(iv) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether or not
with or into or otherwise involving an Interested Shareowner)
that has the effect, directly or indirectly, of increasing
the proportionate share of any class or series of Capital
Stock, or any securities convertible into Capital Stock or
into equity securities of any Subsidiary, that is
beneficially owned by any Interested Shareowner or any
Affiliate or Associate of any Interested Shareowner; or
(v) any agreement, contract, arrangement or other
understanding providing for any one or more of the actions
specified in clauses (i) through (iv) above.
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B. A "person" shall mean any individual, firm, corporation or other
entity and shall include any group composed of any person and any
other person with whom such person or any Affiliate or Associate of
such person has any agreement, arrangement or understanding, directly
or indirectly, for the purpose of acquiring, holding, voting or
disposing of Capital Stock.
C. "Interested Shareowner" shall mean any person (other than the
Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with
respect to any such plan when acting in such capacity) who or which:
(i) is the beneficial owner of Voting Stock having 10% or
more of the votes entitled to be cast by the holders of all
then outstanding shares of Voting Stock; or
(ii) is an Affiliate or Associate of the Corporation and at
any time within the two-year period immediately prior to the
date in question was the beneficial owner of Voting Stock
having 10% or more of the votes entitled to be cast by the
holders of all then outstanding shares of Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the
two-year period immediately prior to the date in question
beneficially owned by any Interested Shareowner, if such
assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
D. A person shall be a "beneficial owner" of any Capital Stock:
(i) which such person or any Affiliate or Associate of such
person beneficially owns, directly or indirectly; or
(ii) which such person or any Affiliate or Associate of such
person has, directly or indirectly, (a) the right to acquire
(whether such right is exercisable immediately or only after
the passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b)
the right to vote pursuant to any agreement, arrangement or
understanding; or
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(iii) which are beneficially owned, directly or indirectly,
by any other person with which such person or any Affiliate
or Associate of such person has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Capital Stock.
E. For the purposes of determining whether a person is an Interested
Shareowner pursuant to paragraph C of this Section 3, the number of
shares of Capital Stock deemed to be outstanding shall include shares
deemed owned by the Interested Shareowner through application of
paragraph D of this Section 3 but shall not include any other shares
of Capital Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
F. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
October 28, 1996 (the term "registrant" in such Rule 12b-2 meaning in
this case the Corporation).
G. "Subsidiary" means any corporation of which a majority of any class
of equity security is beneficially owned by the Corporation; provided,
however, that for the purposes of the definition of Interested
Shareowner set forth in paragraph C of this Section 3, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is beneficially owned by the Corporation.
H. "Continuing Director" means any member of the Board of Directors of
the Corporation (the "Board") who is not an Affiliate or Associate or
representative of the Interested Shareowner and was a member of the
Board prior to the time that the Interested Shareowner became an
Interested Shareowner, and any successor of a Continuing Director who
is not an Affiliate or Associate or representative of the Interested
Shareowner and is recommended or elected to succeed a Continuing
Director by at least two-thirds of Continuing Directors then members
of the Board.
I. "Fair Market Value" means: (i) in the case of cash, the amount of
such cash; (ii) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in question of
a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such stock is
not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid
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quotation with respect to a share of such stock during the 30-day
period immediately preceding the date in question on the National
Association of Securities Dealers, Inc., Automated Quotations System or
any system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined in good faith by at least two-thirds of the Continuing
Directors; and (iii) in the case of property other than cash or stock,
the fair market value of such property on the date in question as
determined in good faith by at least two-thirds of the Continuing
Directors.
J. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as
used in paragraphs B(i) and (ii) of Section 2 of this Article Eleventh
shall include the shares of Common Stock and/or the shares of any
other class or series of Capital Stock retained by the holders of such
shares.
4. Powers of Continuing Directors. Any determination as to compliance
with this Article Eleventh, including without limitation (A) whether a
person is an Interested Shareowner, (B) the number of shares of
Capital Stock or other securities beneficially owned by any person,
(C) whether a person is an Affiliate or Associate of another, (D)
whether the requirements of paragraph B of Section 2 have been met
with respect to any Business Combination, and (E) whether the assets
that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $25,000,000 or more
shall be made only upon action by not less than two-thirds of the
Continuing Directors of the Corporation; and the good faith
determination of at least two-thirds of the Continuing Directors on
such matters shall be conclusive and binding for all the purposes of
this Article Eleventh.
5. No Effect on Fiduciary Obligations. Nothing contained in this
Article Eleventh shall be construed to relieve the Board of Directors
or any Interested Shareowner from any fiduciary obligation imposed by
law.
6. Amendment, Repeal, etc. Notwithstanding any other provisions of
this Certificate of Incorporation or the by-laws of the Corporation
(and notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law, this Certificate of Incorporation
or the by-laws of the Corporation), the affirmative vote of the
holders of at least 80% of the voting power of the then outstanding
shares of Voting Stock, voting together as a single class, shall be
required to amend or repeal, or adopt any provisions
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inconsistent with, this Article Eleventh; provided, however, that the
preceding provisions of this Section 6 shall not apply to any amendment
to this Article Eleventh, and such amendment shall require only such
affirmative vote as is required by law and any other provisions of this
Certificate of Incorporation or the by-laws of the Corporation, if such
amendment shall have been approved by at least two-thirds of the
members of the Board who are persons who would be eligible to serve as
Continuing Directors.
TWELFTH: Any action required or permitted to be taken by the shareowners shall
be taken only at an annual or special meeting of such shareowners and not by
consent in writing. Special meetings of the shareowners for any purpose or
purposes shall be called only by the Board of Directors pursuant to a
resolution adopted by a majority of the whole Board.
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