EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
DC HOLDCO, INC.
The undersigned, Sanford M. Litvack, certifies that he is the
President of DC Holdco, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), and hereby further certifies
as follows:
1. The name of the Corporation is DC Holdco, Inc., the name under
which it was originally incorporated.
2. The original Certificate of Incorporation of the Corporation was
filed in the Office of the Secretary of State of the State of Delaware on July
28, 1995.
3. This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
4. The text of the Certificate of Incorporation of the Corporation
hereby is restated and amended to read in its entirety as follows:
FIRST: The name of the Corporation is DC Holdco, Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may now or hereafter be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of the
Delaware Code, as in effect from time to time (the "GCL").
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 1,300,000,000, consisting of 1,200,000,000
shares of common stock, par value $0.01 per share ("Common Stock"), and
100,000,000 shares of preferred stock, par value $0.01 per share ("Preferred
Stock").
Shares of the Preferred Stock of the Corporation may be issued from
time to time in one or more classes or series, each of which class or series
shall have such distinctive designation, number of shares, or title as shall be
fixed by the Board of Directors of the Corporation (the "Board of Directors")
prior to the issuance of any shares thereof. Each such class or series of
Preferred Stock shall consist of such number of shares, and have such voting
powers, full or limited, or no voting powers, and such preferences and relative,
participating, optional or other special rights and such qualifications,
limitations or restrictions thereof, as shall be stated in such resolution or
resolutions providing for the issue of such class or series of Preferred Stock
as may be adopted from time to time by the Board of Directors prior to the
issuance of any shares thereof pursuant to the authority hereby expressly vested
in it, all in accordance with the laws of the State of Delaware.
FIFTH: The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than three
directors nor more than twenty-one directors, the exact number of directors to
be determined from time to time solely by resolution adopted by the Board of
Directors. The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. The term of the initial Class I directors shall terminate
on the date of the first annual meeting of stockholders; the term of the initial
Class II directors shall terminate on the date of the second annual meeting of
stockholders; and the term of the initial Class III directors shall terminate on
the date of the third annual meeting of stockholders. At each annual meeting of
stockholders, beginning with the first annual meeting of stockholders,
successors to the class of directors whose term expires at that annual meeting
shall be elected for a term expiring at the third succeeding annual meeting of
stockholders. If the number of directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. A director shall hold office until the annual
meeting for the year in which his term expires and until his successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any vacancy on the Board
of Directors, howsoever resulting, may be filled solely by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy shall hold office for a term
that shall coincide with the term of the class to which such director shall have
been elected.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Restated Certificate of Incorporation or the resolution or
resolutions adopted by the Board of Directors pursuant to Article FOURTH
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Article FIFTH unless expressly provided by such terms.
SIXTH: Subject to the rights, if any, of the holders of shares of Preferred
Stock then outstanding, from and after the time that shares of Common Stock are
first issued, any or all of the directors of the Corporation may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of a majority of the outstanding shares of the Corporation then entitled
to vote generally in the election of directors, considered for purposes of this
Article SIXTH as one class.
SEVENTH: Elections of directors at an annual or special meeting of
stockholders shall be by written ballot unless the Bylaws of the Corporation
shall otherwise provide.
EIGHTH: Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by the Board of Directors, the
Chairman of the Board of Directors or the President. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons.
NINTH: A. Except as set forth in Section B of this Article NINTH, the
affirmative vote of the holders of four-fifths (4/5) of the outstanding stock of
the Corporation entitled to vote shall be required for:
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(i) any merger or consolidation to which the Corporation, or any of its
subsidiaries, and an Interested Person (as hereinafter defined) are parties;
(ii) any sale or other disposition by the Corporation, or any of its
subsidiaries, of all or substantially all of its assets to an Interested Person;
(iii) any purchase or other acquisition by the Corporation, or any of its
subsidiaries, of all or substantially all of the assets or stock of an
Interested Person; and
(iv) any other transaction with an Interested Person which requires the
approval of the stockholders of the Corporation under the GCL.
B. The provisions of Section A of this Article NINTH shall not be applicable
to any transaction described therein if (i) such transaction is approved by
resolution of the Corporation's Board of Directors, provided that a majority of
the members of the Board of Directors voting for the approval of such
transaction were duly elected and acting members of the Board of Directors prior
to the date that the person, firm or corporation, or any group thereof, with
whom such transaction is proposed, became an Interested Person, or (ii) the
provision of a vote in excess of that required by the GCL for such transaction
violates the express provisions of the GCL.
C. As used in this Article NINTH, the term "Interested Person" shall mean any
person, firm or corporation, or any group thereof, acting or intending to act in
concert, including any person directly or indirectly controlling or controlled
by or under direct or indirect common control with such person, firm or
corporation or group, which owns of record or beneficially, directly or
indirectly, five percent (5%) or more of any class of voting securities of the
Corporation.
D. The affirmative vote of the owners of four-fifths (4/5) of the outstanding
stock of the Corporation entitled to vote shall be required to amend, alter or
repeal this Article NINTH.
TENTH: The officers of the Corporation shall be chosen in such a manner,
shall hold their offices for such terms and shall carry out such duties as are
determined solely by the Board of Directors, subject to the right of the Board
of Directors to remove any officer or officers at any time with or without
cause.
ELEVENTH: A. The Corporation shall indemnify to the full extent authorized
or permitted by law (as now or hereinafter in effect) any person made, or
threatened to be made, a defendant or witness to any action, suit or proceeding
(whether civil or criminal or otherwise) by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Corporation or by
reason of the fact that such director or officer, at the request of the
Corporation, is or was serving any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, in any capacity.
Nothing contained herein shall affect any rights to indemnification to which
employees other than directors and officers may be entitled by law. No
amendment or repeal of this Section A of Article ELEVENTH shall apply to or have
any effect on any right to indemnification provided hereunder with respect to
any acts or omissions occurring prior to such amendment or repeal.
B. A director of this Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL.
Any repeal or modification of the foregoing paragraph shall not adversely
affect any right or protection of a director of the Corporation existing
hereunder with respect to any act or omission occurring prior to such repeal or
modification.
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C. In furtherance and not in limitation of the powers conferred by statute:
(i) the Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of law; and
(ii) the Corporation may create a trust fund, grant a security interest
and/or use other means (including, without limitation, letters of credit, surety
bonds and/or other similar arrangements), as well as enter into contracts
providing indemnification to the full extent authorized or permitted by law and
including as part thereof provisions with respect to any or all of the foregoing
to ensure the payment of such amounts as may become necessary to effect
indemnification as provided therein, or elsewhere.
TWELFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, repeal, alter,
amend or rescind the Bylaws of the Corporation. In addition, the Bylaws of the
Corporation may be adopted, repealed, altered, amended or rescinded by the
affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the
outstanding stock of the Corporation entitled to vote thereon.
THIRTEENTH: The Corporation reserves the right to repeal, alter, amend or
rescind 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.
IN WITNESS WHEREOF, DC Holdco, Inc. has caused its corporate seal to be
hereunto affixed and this Restated Certificate of Incorporation to be signed by
Sanford M. Litvack, its President, this 21st day of September, 1995.
DC HOLDCO, INC.
/s/ Sanford M. Litvack
_______________________________
Sanford M. Litvack
President
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CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, OF THE SERIES R
PREFERRED STOCK
($.01 Par Value Per Share)
OF
DC HOLDCO, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned hereby certifies that a resolution setting forth the
Certificate of the Voting Powers, Designation, Preferences and Relative,
Participating, Optional or Other Special Rights, and the Qualifications,
Limitations or Restrictions Thereof, of the Series R Preferred Stock ($.01 Par
Value Per Share) of DC HOLDCO, INC. (the "Certificate of Designation of the
Series R Preferred Stock") was duly adopted in accordance with the provisions of
Section 151(g) of the General Corporation Law of the State of Delaware (the
"General Corporation Law") by the Board of Directors of DC Holdco, Inc.,
corporation organized under and by virtue of the General Corporation Law (the
"Corporation"), on November 8, 1995. The resolution is as follows:
RESOLVED, that pursuant to authority conferred on the Board of Directors of
the Corporation by its Restated Certificate of Incorporation, a Series R
Preferred Stock of the Corporation is created and the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
or other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof, are as follows:
Section 1. Designation and Amount. The shares of such series shall be
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designated Series R Preferred Stock ("Series R Preferred Stock") and the number
of shares constituting such series shall be 8,000,000. Shares of Series R
Preferred Stock shall have a par value of $.01 per share.
Section 2. Dividends and Distributions.
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(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series R 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, (i) cash dividends in an amount per share (rounded to
the nearest cent) equal to 100 times the aggregate per share amount of all cash
dividends declared or paid on the Common Stock of the Corporation and (ii) a
preferential cash dividend (a "Preferential Dividend"), if any, on the fifteenth
day of January, April, July and October of each year (each 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 R Preferred
Stock, in an amount equal to $1.00 per share of Series R Preferred Stock less
the per share amount of all cash dividends declared on the Series R Preferred
Stock pursuant to clause (i) of this sentence 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 R Preferred Stock. In the event the Corporation shall, at any time after
the issuance of any share or fraction of a share of Series R Preferred Stock,
make any distribution on the shares of Common Stock, whether by way of a
dividend or a reclassification of stock, a recapitalization, reorganization or
partial liquidation of the Corporation or otherwise, which is payable in cash or
any debt security, debt instrument, real or personal property or any other
property (other than cash dividends subject to clause (i) of the immediately
preceding sentence and other than a distribution of shares of Common Stock or
other
capital stock of the Corporation and other than a distribution of rights
or warrants to acquire any such share, including any debt security convertible
into or exchangeable for any such share, at a price less than the Current Market
Price of such share), then and in each such event the Corporation shall
simultaneously pay on each then outstanding share of Series R Preferred Stock of
the Corporation a distribution, in like kind, of 100 times (subject to the
provisions for adjustment hereinafter set forth) such distribution paid on a
share of Common Stock. The dividends and distributions on the Series R Preferred
Stock to which holders thereof are entitled pursuant to clause (i) of the first
sentence of this paragraph and the second sentence of this paragraph are
hereinafter referred to as "Participating Dividends," and the multiple of cash
and non-cash dividends on the Common Stock applicable to the determination of
the Participating Dividends, which shall be 100 subject to adjustment
from time to time as hereinafter provided, is hereinafter referred to as the
"Dividend Multiple." In the event the Corporation shall at any time declare or
pay any dividend or make any distribution on Common Stock payable in shares of
Common Stock, or effect a subdivision or split or a combination, consolidation
or reverse split of the outstanding shares of Common Stock into a greater or
lesser number of shares of Common Stock, then in each such event the Dividend
Multiple thereafter applicable to the determination of the amount of
Participating Dividends which holders of shares of Series R Preferred Stock
shall be entitled to receive shall be the Dividend Multiple applicable
immediately prior to such event multiplied by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare each Participating Dividend at the same
time it declares any cash or non-cash dividend or distribution on the Common
Stock in respect of which a Participating Dividend is required to be paid. No
cash or non-cash dividend or distribution on the Common Stock in respect of
which a Participating Dividend is required shall be paid or set aside for
payment on the Common Stock unless a Participating Dividend in respect of such
dividend or distribution on the Common Stock shall be simultaneously paid or set
aside for payment on the Series R Preferred Stock.
(C) Preferential Dividends shall begin to accumulate on outstanding shares
of Series R Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issuance of any shares of Series R Preferred Stock.
Accumulated but unpaid Preferential Dividends shall cumulate but shall not bear
interest. Preferential Dividends paid on the shares of Series R Preferred Stock
in an amount less than the total amount of such dividends at the time
accumulated and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding.
Section 3. Voting Rights. The holders of shares of Series R Preferred
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Stock shall have the following voting rights:
(A) Each share of Series R Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the stockholders of
the Corporation. The number of votes which a holder of Series R Preferred Stock
is entitled to cast, as the same may be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Vote Multiple." In the
event the Corporation shall at any time declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding shares of Common
Stock into a greater or lesser number of shares of Common Stock, then in each
such case the Vote Multiple thereafter applicable to the determination of the
number of votes per share to which holders of shares of Series R Preferred Stock
shall be entitled after such event shall be the Vote Multiple immediately prior
to such event multiplied 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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(B) Except as otherwise provided herein or by law, the holders of shares of
Series R Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) If at the time of any annual meeting of stockholders for the election
of directors a default in preference dividends on the Series R Preferred Stock
shall exist, the number of directors constituting the Board of Directors of the
Corporation shall be increased by two, and the holders of the Series R Preferred
Stock, together with the holders of any other series of Preferred Stock of the
Corporation who shall have been granted voting rights to elect directors upon a
default in the payment of dividends by the Corporation (collectively with the
holders of the Series R Preferred Stock, the "Preferred Stockholders"), shall
have the right at such meeting, voting together as a single class without regard
to series, to the exclusion of the holders of Common Stock, to elect two
directors of the Corporation to fill such newly created directorships. Such
right shall continue until there are no dividends in arrears upon the Series R
Preferred Stock. Each director elected by the Preferred Stockholders (herein
called a "Preferred Director") shall continue to serve as such director for the
full term for which he shall have been elected, notwithstanding that prior to
the end of such term a default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed without cause
except by, the vote of the Preferred Stockholders, voting together as a single
class without regard to series, at a meeting of the stockholders, or of the
Preferred Stockholders, called for the purpose. So long as a default in any
preference dividends on the Series R Preferred Stock shall exist (i) any vacancy
in the office of a Preferred Director may be filled (except as provided in the
following clause (ii)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (ii) in case of the
removal of any Preferred Director, the vacancy may be filed by the vote of the
Preferred Stockholders, voting together as a single class without regard to
series, at the same meeting at which such removal shall be voted. Each director
appointed as aforesaid by the remaining Preferred Director shall be deemed, for
all purposes hereof, to be a Preferred Director. Whenever the term of office of
the Preferred Directors shall end and a default in preference dividends shall no
longer exist, the number of directors constituting the Board of Directors shall
be reduced by two. For the purposes hereof, a "default in preference dividends"
on the Series R Preferred Stock shall be deemed to have occurred whenever the
amount of accrued dividends upon the Series R Preferred Stock shall be
equivalent to six full quarter-yearly dividends or more and, having so occurred,
such default shall be deemed to exist thereafter until, but only until, all
accrued dividends on all shares of Series R Preferred Stock then outstanding
shall have been paid to the end of the last preceding quarterly dividend period.
(D) Except as otherwise required by law or set forth herein, holders of
Series R Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for the taking of any corporate
action.
Section 4. Certain Restrictions.
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(A) Whenever Preferential Dividends or Participating Dividends are in
arrears or the Corporation shall be in default in payment thereof, thereafter
and until all accumulated and unpaid Preferential Dividends and Participating
Dividends, whether or not declared, on shares of Series R Preferred Stock
outstanding shall have been paid or set aside for payment in full, and in
addition to any and all other rights which any holder of shares of Series R
Preferred Stock may have in such circumstances, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series R Preferred Stock;
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(ii) declare or pay dividends or make any other distributions on any
shares of stock ranking on a parity as to dividends with the Series R
Preferred Stock, unless dividends are paid ratably on the Series R
Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) except as permitted by subparagraph (iv) of this paragraph (A),
redeem or purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series R Preferred Stock, provided that
the Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock of the
Corporation ranking junior (both as to dividends and upon liquidation,
dissolution or winding up) to the Series R Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series
R Preferred Stock, or any shares of stock ranking on a parity with the Series R
Preferred Stock (either as to dividends or upon liquidation, dissolution or
winding up), except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
(C) The Corporation shall not issue any shares of Series R Preferred
Stock except upon exercise of Rights issued pursuant to that certain Rights
Agreement dated as of November 8, 1995 between the Corporation and The Bank of
New York (the "Rights Agreement"), a copy of which is on file at the principal
executive office of the Corporation and shall be made available to holders of
record of Common Stock or Series R Preferred Stock without charge upon written
request therefor addressed to the Secretary of the Corporation. Notwithstanding
the foregoing sentence, nothing contained in the provisions hereof shall
prohibit or restrict the Corporation from issuing for any purpose any series of
Preferred Stock with rights and privileges similar to, different from, or
greater than those of the Series R Preferred Stock.
Section 5. Reacquired Shares. Any shares of Series R Preferred Stock
-----------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. The
Corporation shall cause all such shares upon their retirement and cancellation
to become authorized but unissued shares of Preferred Stock, without designation
as to series, and such shares may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors.
Section 6. Liquidation, Dissolution or Winding Up. Upon any voluntary
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or involuntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of stock ranking junior
to the Series R Preferred Stock (upon liquidation, dissolution or winding up)
unless the holders of shares of Series R Preferred Stock shall have received,
subject to adjustment as hereinafter provided, the greater of either (A) $100.00
per share plus an amount equal to accumulated and unpaid dividends and
distributions thereon, whether or not declared, to the date of
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such payment, or (B) the amount equal to 100 times the aggregate amount to be
distributed per share to holders of Common Stock, or (ii) to the holders of
stock ranking on a parity upon liquidation, dissolution or winding up with the
Series R Preferred Stock, unless simultaneously therewith distributions are made
ratably on the Series R Preferred Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of shares of
Series R Preferred Stock are entitled under clause (i) (A) of this sentence and
to which the holders of such parity shares are entitled, in each case upon such
liquidation, dissolution or winding up. The amount to which holders of Series R
Preferred Stock shall be entitled upon liquidation, dissolution or winding up of
the Corporation pursuant to clause (i) (B) of the foregoing sentence is
hereinafter referred to as the "Participating Liquidation Amount," and the
multiple of the amount to be distributed to holders of shares of Common Stock
upon the liquidation, dissolution or winding up of the Corporation applicable
pursuant to said clause to the determination of the Participating Liquidation
Amount, which shall be 100 subject to adjustment from time to time as
hereinafter provided, is hereinafter referred to as the "Liquidation Multiple."
In the event the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or split
or a combination, consolidation or reverse split of the outstanding shares of
Common Stock into a greater or lesser number of shares of Common Stock, then in
each such case the Liquidation Multiple thereafter applicable to the
determination of the Participating Liquidation Amount to which holders of Series
R Preferred Stock shall be entitled after such event shall be the Liquidation
Multiple applicable immediately prior to such event multiplied 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.
Section 7. Certain Reclassification and Other Events.
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(A) In the event that holders of shares of Common Stock receive in
respect of their shares of Common Stock any share of capital stock of the
Corporation (other than any share of Common Stock of the Corporation), whether
by way of reclassification, recapitalization, reorganization, dividend or other
distribution or otherwise ("Transaction"), then in each such event the dividend
rights, rights upon the liquidation, dissolution or winding up of the
Corporation and voting rights of the shares of Series R Preferred Stock shall be
adjusted so that after such event the holders of Series R Preferred Stock shall
be entitled, in respect of each share of Series R Preferred Stock held, in
addition to such rights in respect thereof to which such holder was entitled
immediately prior to such adjustment, to (i) such additional dividends as equal
the Dividend Multiple in effect immediately prior to such Transaction multiplied
by the additional dividends which the holder of a share of Common Stock shall be
entitled to receive by virtue of the receipt in the Transaction of such capital
stock, (ii) such additional distributions upon liquidation, dissolution or
winding up of the Corporation as equal the Liquidation Multiple in effect
immediately prior to such Transaction multiplied by the additional amount which
the holder of a share of Common Stock shall be entitled to receive upon
liquidation, dissolution or winding up of the Corporation by virtue of the
receipt in the Transaction of such capital stock, as the case may be, all as
provided by the terms of such capital stock and (iii) such additional voting
rights as equal the Vote Multiple in effect immediately prior to such
Transaction multiplied by the additional voting rights which the holder of a
share of Common Stock shall be entitled to receive by virtue of the receipt in
the Transaction of such capital stock.
(B) In the event that holders of shares of Common Stock receive in
respect of their shares of Common Stock any right or warrant to purchase Common
Stock (including as such a right, for all purposes of this paragraph, any
security convertible into or exchangeable for Common Stock) at a purchase price
per share less than the Current Market Price (as hereinafter defined) of a share
of Common Stock on the date of issuance of such right or warrant, then in each
such event the dividend rights, rights upon the liquidation, dissolution or
winding up of the Corporation and voting rights of the shares of Series R
Preferred Stock shall each be adjusted so that after such event the Dividend
Multiple and the Liquidation Multiple and the Vote Multiple shall each be the
product of the Dividend
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Multiple, the Liquidation Multiple and the Vote Multiple, as the case may be, in
effect immediately prior to such event multiplied by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the maximum number of shares of
Common Stock which could be acquired upon exercise in full of all such rights or
warrants and the denominator of which shall be the number of shares of Common
Stock outstanding immediately before such issuance of rights or warrants plus
the number of shares of Common Stock which could be purchased, at the Current
Market Price of the Common Stock at the time of such issuance, by the maximum
aggregate consideration payable upon exercise in full of all such rights or
warrants.
(C) In the event that holders of shares of Common Stock receive in
respect of their shares of Common Stock any right or warrant to purchase capital
stock of the Corporation (other than shares of Common Stock), including as such
a right, for all purposes of this paragraph, any security convertible into or
exchangeable for capital stock of the Corporation (other than Common Stock), at
a purchase price per share less than the Current Market Price of such shares of
capital stock on the date of issuance of such right or warrant, then in each
such event the dividend rights, rights upon liquidation, dissolution or winding
up of the Corporation and the voting rights of the shares of Series R Preferred
Stock shall each be adjusted so that after such event each holder of a share of
Series R Preferred Stock shall be entitled, in addition to such rights in
respect thereof to which such holder was entitled immediately prior to such
event, to receive (i) such additional dividends as equal the Dividend Multiple
in effect immediately prior to such event multiplied, first, by the additional
dividends to which the holder of a share of Common Stock shall be entitled upon
exercise of such right or warrant by virtue of the capital stock which could be
acquired upon such exercise and multiplied again by the Discount Fraction (as
hereinafter defined), (ii) such additional distributions upon liquidation,
dissolution or winding up of the Corporation as equal the Liquidation Multiple
in effect immediately prior to such event multiplied, first, by the additional
amount which the holder of a share of Common Stock shall be entitled to receive
upon liquidation, dissolution or winding up of the Corporation upon exercise of
such right or warrant by virtue of the capital stock which could be acquired
upon such exercise and multiplied again by the Discount Fraction and (iii) such
additional voting rights as equal the Vote Multiple in effect immediately prior
to such event multiplied, first, by the additional voting rights to which the
holder of a share of Common Stock shall be entitled upon exercise of such right
or warrant by virtue of the capital stock which could be acquired upon such
exercise and multipled again by the Discount Fraction. For purposes of this
paragraph, the "Discount Fraction" shall be a fraction the numerator of which
shall be the difference between the Current Market Price (as hereinafter
defined) of a share of the capital stock subject to a right or warrant
distributed to holders of shares of Common Stock as contemplated by this
paragraph immediately after the distribution thereof and the purchase price per
share for such share of capital stock pursuant to such right or warrant and the
denominator of which shall be the Current Market Price of a share of such
capital stock immediately after the distribution of such right or warrant.
(D) For purposes of this Section 7, the "Current Market Price" of a
share of capital stock of the Corporation (including a share of Common Stock) on
any date shall be deemed to be the average of the daily closing prices per share
thereof over the 30 consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, provided that in the event that such
Current Market Price of any such share of capital stock is determined during a
period which includes any date that is within 30 Trading Days after the ex-
dividend date for (i) a dividend or distribution on stock payable in shares of
such stock or securities convertible into shares of such stock or (ii) any
subdivision, split, combination, consolidation, reverse stock split or
reclassification of such stock, then in each such event, the Current Market
Price shall be appropriately adjusted by the Board of Directors to reflect the
Current Market Price of such stock to take into account ex-dividend trading. The
closing price for any day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
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trading on the New York Stock Exchange or, if the shares are not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the shares are listed or
admitted to trading or, if the shares are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use, or if on any such
date the shares are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in the shares selected by the Board of Directors. The term "Trading
Day" shall mean a day on which the principal national securities exchange on
which the shares are listed or admitted to trading is open for the transaction
of business or, if the shares are not listed or admitted to trading on any
national securities exchange, on which the New York Stock Exchange or such other
national securities exchange as may be selected by the Board of Directors is
open. If the shares are not publicly held or not so listed or traded on any day
within the period of 30 Trading Days applicable to the determination of Current
Market Price thereof as aforesaid, "Current Market Price" shall mean the fair
market value thereof per share as determined in good faith by the Board of
Directors. In either case referred to in the foregoing sentence, the
determination of Current Market Price shall be described in a statement filed
with the Secretary of the Corporation.
Section 8. Consolidation, Merger, etc. In the event that the
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Corporation shall enter into any consolidation, merger, combination or other
transaction in which shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then in any such
event each outstanding share of Series R Preferred Stock shall at the same time
be similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and other property (payable in like kind), as the case may be,
for which or into which each share of Common Stock is changed or exchanged
multiplied by the higher of the Dividend Multiple, the Liquidation Multiple or
the Vote Multiple in effect immediately prior to such event.
Section 9. Effective Time of Adjustments.
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(A) Adjustments to the Series R Preferred Stock required by the
provisions hereof shall be effective as of the time at which the event requiring
such adjustments occurs.
(B) The Corporation shall give prompt written notice to each holder of
a share of Series R Preferred Stock of the effect on any such shares of any
adjustment to the dividend rights or rights upon liquidation, dissolution or
winding up of the Corporation required by the provisions hereof. Notwithstanding
the foregoing sentence, the failure of the Corporation to give such notice shall
not affect the validity of or the force or effect of or the requirement for such
adjustment.
Section 10. No Redemption. The shares of Series R Preferred Stock
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shall not be redeemable at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Corporation may
acquire shares of Series R Preferred Stock in any other manner permitted by law,
or the provisions hereof.
Section 11. Banking. Unless otherwise provided in the Restated
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Certificate of Incorporation or a Certificate of Designation relating to a
subsequent series of Preferred Stock of the Corporation, the Series R Preferred
Stock shall rank junior to all other series of the Corporation's Preferred Stock
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up and senior to the Common Stock.
Section 12. Amendment. After the Distribution Date (as defined in the
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Rights Agreement), the provisions hereof and of the Restated Certificate of
incorporation shall not be amended in any manner which would materially affect
the rights, privileges or powers of the Series R Preferred Stock without, in
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addition to any other vote of stockholders required by law, the affirmative vote
of the holders of 80% or more of the outstanding shares of Series R Preferred
Stock, voting together as a single class.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Sanford M. Litvack, its President, this 9th day of November, 1995.
DC HOLDCO, INC.
/s/ Sanford M. Litvack
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Sanford M. Litvack
President