EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
HALLIBURTON COMPANY
Halliburton Company (the "Corporation"), a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is HALLIBURTON COMPANY. HALLIBURTON
COMPANY was originally incorporated under the name HALLIBURTON HOLD CO., and the
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on November 7, 1996.
2. Pursuant to Section 245 of the General Corporation Law of the State
of Delaware, the Board of Directors of the Corporation has duly adopted this
Restated Certificate of Incorporation which only restates and integrates and
does not further amend the provisions of the Restated Certificate of
Incorporation as theretofore amended or supplemented of the Corporation and
there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
3. The text of the Restated Certificate of Incorporation is as follows:
FIRST: The name of this Corporation is HALLIBURTON COMPANY.
SECOND: The location of its principal office in the State of Delaware
is 1209 Orange Street in the City of Wilmington, County of New Castle. The name
of the agent therein and in charge of thereof is THE CORPORATION TRUST COMPANY,
1209 Orange Street, Wilmington, Delaware.
THIRD: The nature of the business, or objects, or purposes to be
transacted, promoted or carried on are:
(a) To acquire, own and hold United States and Foreign Letters patent;
and Licenses thereunder, relating to the cementing and finishing of oil wells,
gas wells and water wells, including processes and machines for mixing cement
and other substances in an efficient manner and forcing same into such wells;
and measuring devices used in the process of cementing wells; and under such
patents and licenses and to conduct the business of cementing and finishing oil
wells, gas and
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water wells, and to purchase, own and use all necessary and convenient tools,
implements and appliances, including trucks, for the conduct of such business;
also such real and personal property as may be needful in its operations. To
transact any of its business in any part of the world.
(b) To manufacture, sell, lease, use or service any and all kinds of
supplies, tools, appliances, accessories, specialties, machinery and equipment
relating to or useful in connection with the cementing, testing, drilling,
completing, cleaning, repairing or operating oil wells, gas wells and water
wells.
(c) To acquire, own and operate such machinery, apparatus, appliances
and equipment as may be necessary, proper or incidental to the cementing,
testing, completing, repairing, cleaning and operating of oil wells, gas wells
and water wells, or for any of the purposes for which this Corporation is
organized.
(d) To apply for, purchase or in any manner 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, trademarks, and trade names relating to or useful in connection with
any business of this Corporation, and to work, operate or develop the same, and
to carry on any business, manufacturing or otherwise, which may directly or
indirectly effectuate these objects or any of them.
(e) In general, upon approval of the Board of Directors of the
Corporation, to carry on any other business, including selling, leasing,
manufacturing and servicing, even though unrelated to the objects and purposes
enumerated in paragraphs (a), (b), (c) and (d) hereof, and to have and exercise
all the powers conferred by the laws of Delaware upon corporations, and to have
one or more offices out of the State of Delaware, and to hold, purchase,
mortgage and convey real and personal property out of the State of Delaware, and
to do any or all of the things hereinbefore set forth to the same extent as
natural persons might or could do.
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(f) The objects and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in no wise limited or restricted by
reference to, or inference from, the terms of any other clause in this
Certificate of Incorporation, but the objects and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent objects
and purposes.
FOURTH: The aggregate number of shares which the Corporation shall have
authority to issue shall be one billion five million (1,005,000,000), consisting
of one billion (1,000,000,000) shares of Common Stock of the par value of Two
and 50/100 Dollars ($2.50) per share and five million (5,000,000) shares of
Preferred Stock without par value. The relative rights, preferences and
limitations of the shares of each class are as follows:
(A) PREFERRED STOCK
(1) Shares of the Preferred Stock may be issued in one or more series
at such time or times and for such consideration or considerations as the Board
of Directors may determine and authority is vested in the Board of Directors, by
resolution or resolutions from time to time to establish and designate series,
to issue shares of any such series and to fix the relative, participating,
optional, or other rights, powers, privileges, preferences, and the
qualifications, limitations or restrictions thereof, including, but not limited
to, the following:
(a) The distinctive designation and number of shares
comprising any series, which number may (except where otherwise
provided by the Board of Directors in creating such series) be
increased or decreased (but not below the number of shares thereof then
outstanding) from time to time by like action of the Board of
Directors;
(b) The dividend rate or rates on the shares of any series and
the preference or preferences, if any, over any other series (or of any
other series over such series) with respect to dividends, the terms and
conditions upon which such dividends shall be payable, and whether and
upon what conditions dividends on the shares of any series shall be
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cumulative, and on such shares of any series having cumulative dividend
rights, the date or dates from which dividends on the shares of such
series shall be cumulative;
(c) The terms, if any, upon which the shares of any series
shall be convertible into, or exchangeable for, shares of a different
series of Preferred Stock or for Common Stock including but not limited
to the price or prices or rate of exchange, and conditions of any
adjustments thereof, which price or rate may, but need not, vary
according to the time or circumstances of the conversion or exchange;
(d) Whether or not the shares of any series shall be subject
to purchase or redemption, the time or times when, and the price or
prices at which such shares shall be redeemable as well as the manner
for selecting shares to be redeemed, if less than all of a series is to
be redeemed at any given time, and other terms and conditions of such
purchase or redemption;
(e) The obligation, if any, of the Corporation to purchase or
redeem shares of any series pursuant to a sinking or other fund and the
price or prices which, the period or periods within which and the terms
and conditions upon which the shares of the series shall be redeemed in
whole or in part pursuant to such fund;
(f) The rights to which the holders of shares of any series
shall be entitled upon liquidation, dissolution of, or winding up of
the Corporation, whether the same be a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
(g) The voting powers, full or limited, if any, to which the
shares of any series shall be entitled in addition to those required by
law, including without limitation the vote or votes per share and the
transaction of any business or of any specified item of business in
connection with which the shares of any series shall vote as a class;
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(h) Any other preferences, privileges and powers and relative,
participating, optional or other rights and qualifications, limitations
or restrictions thereof, of any series not inconsistent herewith or
with applicable law.
(2) The shares of each series of Preferred Stock shall entitle the
holders thereof to receive, when, as and if declared by the Board of Directors
out of funds legally available for dividends, cash dividends at the rate, under
the conditions and for the periods fixed by resolution or resolutions of the
Board of Directors pursuant to authority granted in this Article for each
series, and no more, and so long as any Preferred Stock or any series thereof
shall remain outstanding, no dividends shall be declared or paid upon any shares
of the Common Stock, other than dividends payable in shares of any series or
class subordinate to the Preferred Stock, unless dividends on all outstanding
Preferred Stock of all series fixed by the Board of Directors in accordance with
and pursuant to the authority granted in this Article for each series shall be
paid or set apart for payment.
(3) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the Preferred Stock
of each series then outstanding shall be entitled to receive payment out of the
net assets of the Corporation whether from capital or surplus or both of the
liquidation price fixed for such series by the Board of Directors by resolution,
if any is so fixed, at the time and under the circumstances applicable before
any payment shall be made to the holders of shares of any series of lesser rank
to such series or to holders of shares of Common Stock of the Corporation. If
the stated amounts payable in such event on the Preferred Stock of all series
are not paid in full, the shares of all series of equal rank shall share ratably
in any distribution of assets in accordance with the sums which would be payable
on such distribution if all sums payable were discharged in full. Neither the
merger nor the consolidation of the Corporation nor the voluntary sale or
conveyance of the Corporation property as an entirety or any part thereof shall
be
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deemed to be a liquidation, dissolution or winding up of the Corporation for
the purposes of this paragraph.
(4) Except as is otherwise required by law or as otherwise provided in
a resolution or resolutions by the Board of Directors in accordance with the
provisions of this Article, the holders of any series of Preferred Stock shall
not be entitled to vote at any meeting of the stockholders for the election of
Directors or for any other purpose or otherwise to participate in any action
taken by the Corporation or the stockholders thereof, or to receive notice of
any meeting of stockholders. If the holders of any series of Preferred Stock
should become entitled to vote at any meeting of the stockholders for the
election of Directors, no such holder shall have the right of cumulative voting.
(5) Each share of a series of Preferred Stock shall be equal in every
respect to every other share of the same series.
(6) Shares of Preferred Stock which have been purchased or redeemed,
whether through the operation of a sinking fund or otherwise, or which, if
convertible or exchangeable, have been converted into or exchanged for shares of
stock of any other class or series shall have the status of authorized and
unissued shares of Preferred Stock of the same series and may be reissued as a
part of the series of which they were originally a part or may be reclassified
and reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors or as part of any other
series of Preferred Stock, unless otherwise provided with respect to any series
in the resolution or resolutions adopted by the Board of Directors providing for
the issuance of any series of Preferred Stock.
(THE DESIGNATION, RIGHTS AND PREFERENCES OF SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK, WITHOUT PAR VALUE IS SET FORTH IN
EXHIBIT A HERETO.)
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(B) COMMON STOCK
(1) Subject to the rights of the outstanding Preferred Stock with
respect to the payment of preferential dividends, if any, and after the
Corporation shall have complied with the requirements, if any, with respect to
setting aside sinking or analogous funds as to any series of Preferred Stock,
holders of the Common Stock shall be entitled to receive such dividends as may
be declared from time to time by the Board of Directors out of any funds of the
Corporation legally available therefor.
(2) Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, and after the full amounts, if any, to which
the holders of outstanding Preferred Stock of each series are respectively
preferentially entitled have been distributed or set apart for distribution, all
the remaining assets of the Corporation available for distribution shall be
distributed pro rata to the holders of Common Stock.
(3) Except as may be otherwise required by law or provided by this
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by him on all matters voted upon by the
stockholders.
FIFTH: The name and mailing address of the Incorporator are as follows:
NAME MAILING ADDRESS
---- ---------------
Robert M. Kennedy Halliburton Company
3600 Lincoln Plaza
500 North Akard
Dallas, Texas 75201-3391
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be subject
to the payment of corporate debts to any extent whatever.
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EIGHTH: Cumulative voting shall not be allowed. Each Stockholder shall
be entitled, at all elections of Directors of this Corporation, to as many votes
as shall equal the number of shares of stock held and owned by him and entitled
to vote at such meeting under this Certificate of Incorporation for as many
Directors as there are to be elected, unless such right to vote in such manner
is limited or denied by other provisions of this Certificate of Incorporation.
Vacancies caused by the death or resignation of any Director and newly
created directorships resulting from any increase in the authorized number of
Directors may be filled by a vote of at least a majority of the Directors then
in office, though less than a quorum, and the Director so chosen shall hold
office until the next annual meeting of the Stockholders.
NINTH: The By-laws may be altered or repealed at any regular meeting of
the Stockholders, or at any special meeting of the Stockholders at which a
quorum is present or represented, provided notice of the proposed alteration or
repeal be contained in the notice of such special meeting, by the affirmative
vote of the majority of the Stockholders entitled to vote at such meeting and
present or represented thereat, or by the affirmative vote of the majority of
the Board of Directors at any regular meeting of the Board, or at any special
meeting of the Board, if notice of the proposed alteration or repeal be
contained in the notice of such special meeting; provided, however, that no
change of the time or place of the meeting for the election of Directors shall
be made within sixty (60) days next before the day on which such meeting is to
be held, and that in case of any change of time or place, notice thereof shall
be given to each Stockholder in person or by letter mailed to his last known
post office address at least twenty (20) days before the meeting is held.
Voting for Directors need not be by ballot except upon the demand, at
or before the election, of the holders of ten percent (10%) or more of the
shares in person or by proxy and entitled to vote at such election.
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TENTH: The Corporation is hereby authorized to, and shall, indemnify
directors, officers and employees of the Corporation and such other parties as
are set forth below in accordance with the following provisions:
(a) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including attorneys' fees
actually and reasonably incurred by him
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in connection with the defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that any such person referred to hereinabove has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b), or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection
therewith.
(d) Except in those instances where the provisions of subsection (c) of
this Article are applicable, or unless ordered by a court, any indemnification
under subsections (a) and (b) hereof shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
such person referred to hereinabove is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsections (a) and (b)
of this Article. Such determination shall be made (1) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the Stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as
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authorized by the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article.
(f) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which any person referred to hereinabove may be
entitled under any By-law, agreement, vote of the Stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to act in any capacity hereinabove named in this Article
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
(g) The indemnification provided by this Article shall not be deemed
exclusive of any other power to indemnify or right to indemnification which the
Corporation or any person referred to hereinabove may have or acquire under the
laws of the State of Delaware including without limitation the General
Corporation Law of Delaware or any amendment thereto or substitute therefor.
(h) The provisions of this Article shall be applicable to claims,
actions, suits or other proceedings referred to in subsections (a) and (b) of
this Article made or commenced after the adoption hereof, whether arising from
conduct or act or omission occurring before or after the adoption hereof.
ELEVENTH: Both Stockholders and Directors shall have power, if the
By-laws so provide, to hold their meeting either within or without the State of
Delaware and to keep the books of this Corporation (subject to the provisions of
the Statutes) outside of the State of Delaware at such places as may be from
time to time designated in the By-laws.
TWELFTH: In furtherance and not in limitation of the power conferred by
statute, the Board of Directors of this Corporation are expressly authorized to
fix the amount to be reserved as
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working capital, to authorize and cause to be executed mortgages and liens upon
the real and personal property belonging to it.
THIRTEENTH: This Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute and all rights conferred on
Stockholders herein are granted subject to this reservation.
FOURTEENTH: No holder of any class of stock of this Corporation shall
have any preemptive or preferential right of subscription or purchase with
reference to the issuance or sale of any class of stock of the Corporation
whether now or hereafter authorized, or of any securities or obligations
convertible into or carrying or evidencing any right to purchase any class of
stock of the Corporation whether now or hereafter authorized.
FIFTEENTH: No director shall be personally liable to the Corporation or
any stockholder for monetary damages for breach of fiduciary duty by such
director as a director; except for any matter in respect of which such director
shall be liable under Section 174 of the Delaware General Corporation Law or any
amendment thereto or successor provision thereof or shall be liable by reason
that, in addition to any and all other requirements for such liability, such
director (i) shall have breached the duty of loyalty to the Corporation or its
stockholders, (ii) in acting or failing to act, shall not have acted in good
faith or shall have acted in a manner involving intentional misconduct or a
knowing violation of law or (iii) shall have derived an improper personal
benefit. Neither the amendment nor repeal of this Article FIFTEENTH shall
eliminate or reduce the effect of this Article FIFTEENTH in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
Article FIFTEENTH, would accrue or arise, prior to such amendment or repeal. If
the Delaware General Corporation Law is amended after approval by the
stockholders of this Article FIFTEENTH to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited
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to the fullest extent permitted by the Delaware General Corporation Law, as so
amended from time to time.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has been
executed on behalf of the Corporation by its Vice President and Secretary this
21st day of May, 2004.
HALLIBURTON COMPANY
By: /s/ Margaret E. Carriere
----------------------------
Margaret E. Carriere
Vice President and Secretary
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Exhibit A
to Restated Certificate of Incorporation
--------------------------------
DESIGNATION,
RIGHTS AND PREFERENCES
OF
SERIES A JUNIOR PARTICIPATING PREFERRED
STOCK, WITHOUT PAR VALUE
of
HALLIBURTON COMPANY
At a meeting of the Board of Directors of Halliburton Company (the
"Company") the following resolution increasing the series of Preferred Stock
designated as Series A Junior Participating Preferred Stock from three (3)
million shares to five (5) million shares was duly adopted pursuant to the
authority granted to and vested in the Board of Directors of the Company in
accordance with the provisions of its Restated Certificate of Incorporation:
RESOLVED, that the series of 3,000,000 shares of Series A
Junior Participating Preferred Stock, without par value, of the Company
be, and hereby is, increased to 5,000,000 shares pursuant to the
authority granted to and vested in the Board of Directors of the
Company in accordance with the provisions of the Restated Certificate
of Incorporation of the Company and that the designation and amount
thereof and the relative rights, preferences and limitations thereof
(in addition to the provisions set forth in the Restated Certificate of
Incorporation of the Company which are applicable to the Preferred
Stock of all series) are as follows:
I. Designation and Amount. The shares of such series shall be
designated as the "Series A Junior Participating Preferred Stock" (the "Junior
Preferred Stock") and the number of shares constituting such series shall be
five (5) million. 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 Junior Preferred Stock to a number less than that of the
shares then outstanding plus the number of shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Company.
II. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior
to the shares of Junior Preferred Stock with respect to dividends, the
holders of shares of Junior Preferred
Stock, in preference to the holders of common stock, $2.50 par value,
of the Company (the "Common Stock") and of any other stock ranking
junior (as to dividends) to Junior Preferred Stock, shall be entitled
to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, cumulative quarterly dividends
payable in cash or in kind, as hereinafter provided, on the last day 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 Junior Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of
(a) $1.00 (payable in cash) or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount (payable in cash) 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 (by reclassification or otherwise), declared on the Common
Stock since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date, since
the first issuance of any share or fraction of a share of Junior
Preferred Stock. If the Company shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock or effect a
subdivision or combination of the outstanding shares of Common Stock
(by reclassification or otherwise), into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Junior 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 was outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on
the Junior Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock);
provided that, if no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1.00 per share on the Junior Preferred Stock shall
nevertheless accrue and be cumulative on the outstanding shares of
Junior Preferred Stock as provided in paragraph (C) of this Section.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Junior Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares
of Junior Preferred Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for
the determination of holders of shares of Junior
A-2
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 Junior 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 Junior 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.
III. Voting Rights. The holders of shares of Junior Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Junior Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Company. If the Company shall at any time declare
or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination of the outstanding shares of
Common Stock (by reclassification or otherwise) 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 Junior
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.
(B) Except as otherwise provided in the Restated Certificate
of Incorporation or by law, the holders of shares of Junior Preferred
Stock and the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of shareholders of the
Company.
IV. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Junior Preferred Stock as provided in
Section II are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Junior Preferred Stock outstanding shall have been paid in full, the
Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (as to dividends) to the Junior Preferred
Stock;
A-3
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (as to dividends) with the Junior Preferred
Stock, except dividends paid ratably on the Junior
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; or
(iii) purchase or otherwise acquire for consideration any
shares of Junior Preferred Stock, or any shares of
stock ranking on a parity (as to dividends) with the
Junior Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of stock
of the Company unless the Company could, under paragraph (A) of this
Section IV, purchase or otherwise acquire such shares at such time and
in such manner.
V. Reacquired Shares. Any shares of Junior Preferred Stock purchased or
otherwise acquired by the Company 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 series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
VI. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Company, no distribution shall be made (1) to
the holders of shares of stock ranking junior (as to amounts payable upon
liquidation, dissolution or winding up) to the Junior Preferred Stock unless,
prior thereto, the holders of Junior Preferred Stock shall have received an
amount per share (rounded to the nearest cent) equal to the greater of (a)
$100.00 per share, or (b) an 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 Common Stock, plus, in either case, an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, or (2) to the holders of stock
ranking on a parity (as to amounts payable or upon liquidation, dissolution or
winding up) with the Junior Preferred Stock, except distributions made ratably
on the Junior Preferred Stock and all other such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled upon such
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liquidation, dissolution or winding up. If the Company shall at any time declare
or pay any dividend on Common Stock payable in shares of Common Stock, or effect
a subdivision or combination of the outstanding shares of Common Stock (by
reclassification or otherwise) 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 Junior Preferred Stock were entitled immediately prior to such event
under the provision in clause (1) (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.
VII. Consolidation, Merger, etc. If the Company 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
or any other property, or any combination thereof, then in any such case the
shares of Junior Preferred Stock shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash or any other property, or any combination thereof, into which
or for which each share of Common Stock is changed or exchanged. If the Company
shall at any time declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or combination of the outstanding
shares of Common Stock (by reclassification or otherwise) 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 Junior 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.
VIII. No Redemption. The shares of Junior Preferred Stock shall not be
redeemable. So long as any shares of Junior Preferred Stock remain outstanding,
the Company shall not purchase or otherwise acquire for consideration any shares
of stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Junior Preferred Stock unless the Company shall
substantially concurrently also purchase or acquire for consideration a
proportionate number of shares of Junior Preferred Stock.
IX. Rank. Except as otherwise provided in its Restated Certificate of
Incorporation, the Company may authorize or create any series of Preferred Stock
ranking prior to or on a parity with the Junior Preferred Stock as to dividends
or as to distribution of assets upon liquidation, dissolution or winding up.
X. Amendment. The Restated Certificate of Incorporation of the Company
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Junior Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of a majority
of the outstanding shares of Junior Preferred Stock, voting together as a single
class.
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The foregoing resolution was adopted by the Board of Directors of the
Corporation, pursuant to the authority vested in it by the Restated Certificate
of Incorporation of the Corporation, at a meeting of the Board of Directors duly
held on the 19th day of May, 2004 and the Certificate of Designation, Rights and
Preferences of Series A Junior Participating Preferred Stock, Without Par Value
was filed with the Secretary of State of the State of Delaware on May 21, 2004.
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