Exhibit 3.1
NCR CORPORATION
ARTICLES OF AMENDMENT
NCR CORPORATION, a Maryland corporation, having its principal office in
Montgomery County, Maryland (which is hereinafter called the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST: The Corporation hereby effects a forward stock split by changing and
reclassifying each 1 share of Common Stock, par value $.01 per share, of the
Corporation, which is issued and outstanding at 6:01 p.m. on the effective date
of this amendment, into ten shares of such Common Stock, par value $.01 per
share.
SECOND: The amendment does not increase the authorized stock of the
Corporation.
THIRD: The foregoing amendment to the Charter and increase in the stated
capital of the Corporation has been advised by the Board of Directors and
approved by the stockholders of the Corporation.
FOURTH: The foregoing amendment to the Charter will become effective at 6:01
p.m. on May 14, 1999.
IN WITNESS WHEREOF, NCR Corporation has caused these presents to be signed in
its name and on its behalf by its Senior Vice President and General Counsel and
witnessed by its Assistant Secretary on May 11, 1999.
WITNESS: NCR CORPORATION
/s/ M. Louise Turilli By: /s/ Jon S. Hoak
- ----------------------------- --------------------------------------
Assistant Secretary Senior Vice President and General Counsel
THE UNDERSIGNED, Senior Vice President and General Counsel of NCR Corporation,
who executed on behalf of the Corporation the foregoing Articles of Amendment of
which this certificate is made a part, hereby acknowledges in the name and on
behalf of said Corporation the foregoing Articles of Amendment to be the
corporate act of said Corporation and hereby certifies that to the best of his
knowledge, information, and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
/s/ Jon S. Hoak
-----------------------------------------
Senior Vice President and General Counsel
NCR CORPORATION
ARTICLES OF AMENDMENT
NCR CORPORATION, a Maryland corporation, having its principal office in
Montgomery County, Maryland (which is hereinafter called the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST: The Corporation hereby effects a reverse stock split by changing and
reclassifying each 10 shares of Common Stock, par value $.01 per share, of the
Corporation, which is issued and outstanding at 6:00 p.m. on the effective date
of this amendment, into one share of such Common Stock, par value $.01 per
share.
Fractional shares held by record stockholders who as a result of the reverse
split hold less than one share will be converted into the right to receive the
fair value of such fractional interests as determined by the Board of Directors
of the Corporation.
SECOND: The amendment does not increase the authorized stock of the
Corporation.
THIRD: The foregoing amendment to the Charter and reduction in the stated
capital of the Corporation has been advised by the Board of Directors and
approved by the stockholders of the Corporation.
FOURTH: The foregoing amendment to the Charter will become effective at 6:00
p.m. on May 14, 1999.
IN WITNESS WHEREOF, NCR Corporation has caused these presents to be signed in
its name and on its behalf by its Senior Vice President and General Counsel and
witnessed by its Assistant Secretary on May 11, 1999.
WITNESS: NCR CORPORATION
/s/ M. Louise Turilli By: /s/ Jon S. Hoak
- ------------------------- --------------------------------------
Assistant Secretary Senior Vice President and General Counsel
THE UNDERSIGNED, Senior Vice President and General Counsel of NCR Corporation,
who executed on behalf of the Corporation the foregoing Articles of Amendment of
which this certificate is made a part, hereby acknowledges in the name and on
behalf of said Corporation the foregoing Articles of Amendment to be the
corporate act of said Corporation and hereby certifies that to the best of his
knowledge, information, and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
/s/ Jon S. Hoak
-----------------------------------------
Senior Vice President and General Counsel
ARTICLES OF AMENDMENT AND RESTATEMENT
OF
NCR CORPORATION
NCR Corporation, a Maryland corporation having its principal business office in
Dayton, Ohio, and its principal office in the City of Rockville, State of
Maryland, desires to amend and restate its charter as currently in effect, and
hereby certifies to the State Department of Assessment and Taxation of Maryland
that:
FIRST: The Charter of the Corporation is hereby amended by:
Changing and reclassifying each of the shares of Common Stock (par value $5.00
per share) of the Corporation which is issued as of the close of business on the
effective date of this amendment into one share of Common Stock (par value $.01
per share) and by transferring from the account designated "Common Stock" to the
account designated "Capital Surplus" $4.99 for each share of Common Stock issued
immediately after the change and reclassification, or $359,280,000 in the
aggregate.
Changing and reclassifying the 72,000,000 shares of Common Stock (par value $.01
per share) of the Corporation which are issued as of the close of business on
the effective date of this amendment into 101,437,174.688 shares of Common Stock
(par value $.01 per share) and by transferring from the account designated
"Capital Surplus" to the account designated "Common Stock" $294,371.74688, such
change and reclassification to be made as a 1.408849648444-for-one split of the
issued shares and not as a stock dividend, and in connection therewith there
shall be issued 29,437,174.688 additional shares of Common Stock (par value $.01
per share).
SECOND: The following provisions are all of the provisions of the Charter
currently in effect and as hereinafter amended:
ARTICLE I
Name
----
Section 1.1. The name of the Corporation (the "Corporation") is: NCR
Corporation.
ARTICLE II
Principal Office, Registered Office, and Agent
----------------------------------------------
Section 2.1. The address of the Corporation's principal office in the State of
Maryland is 2 Choke Cherry Road, Rockville, Maryland 20815. The resident agent
of the Corporation in the State of Maryland is Mallon Snyder. The address of
the resident agent is 99 South Washington Street, Rockville, Maryland 20850.
Such resident agent is a Maryland resident.
ARTICLE III
Purposes
--------
Section 3.1. The purpose of the Corporation is to engage in any lawful act,
activity or business for which corporations may be organized under the General
Laws of the State of Maryland as now or hereafter in force. The Corporation
shall have all the general powers granted by law to Maryland corporations and
all other powers not inconsistent with law which are appropriate to promote and
attain its purpose.
ARTICLE IV
Capital Stock
-------------
Section 4.1. The Corporation shall be authorized to issue 600,000,000 shares of
capital stock, of which 500,000,000 shares shall be classified as "Common
Stock", $.01 par value per share ("Common Stock") (having an aggregate par value
of $5,000,000.00), and 100,000,000 shares shall be classified as "Preferred
Stock", $.01 par value per share ("Preferred Stock") (having an aggregate par
value of $1,000,000.00). The aggregate par value of all authorized shares is
$6,000,000.00. The Board of Directors may classify and reclassify any unissued
shares of capital stock by setting or changing in any one or more respects the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications or terms or conditions of redemption
of such shares of stock.
Section 4.2. The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. The holders of shares of Common Stock
shall be entitled to one vote for each such share upon all proposals presented
to the stockholders on which the holders of Common Stock are entitled to vote,
except for proposals on which only the holders of another specified class or
series of capital stock are entitled to vote. Subject to the provisions of law
and any preference rights with respect to the payment of dividends attaching to
the Preferred Stock or any series thereof, the holders of Common Stock shall be
entitled to receive, as and when declared by the Board of Directors, dividends
and other distributions authorized by the Board of Directors in accordance with
Maryland General Corporation Law, as in effect from time to time (the "MGCL")
and to all other rights of a stockholder pursuant thereto. Except as otherwise
provided by law or in the Charter of the Corporation (including in any Articles
Supplementary (as defined below)) (the "Charter"), the 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 stockholders at which they are not entitled to vote. In the
event of a liquidation, dissolution or winding up of the Corporation or other
distribution of the Corporation's assets among stockholders for the purpose of
winding up the Corporation's affairs, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Corporation and subject to the rights, privileges, conditions and restrictions
attaching to the Preferred Stock or any series thereof, the Common Stock shall
entitle the holders thereof, together with the holders of any other class of
stock hereafter classified or reclassified not having a preference on
distributions in the liquidation, dissolution or winding up of the Corporation
or other distribution of the Corporation's assets among stockholders for the
purpose of winding up the Corporation's affairs, whether voluntary or
involuntary, to share ratably in the remaining net assets of the Corporation.
Section 4.3. The Preferred Stock may be issued from time to time in one or more
series as authorized by the Board of Directors. The Board of Directors shall
have the power from time to time to the maximum extent permitted by the MGCL to
classify or reclassify, in one or more series, any unissued shares of Preferred
Stock, and to reclassify any unissued shares of any series of Preferred Stock,
in any such case, by setting or changing the number of shares constituting such
series and the designation, preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends, qualifications, or terms or
conditions of redemption of the stock. In any such event, the Corporation shall
file for record with the State Department of Assessments and Taxation of
Maryland (or other appropriate entity) articles supplementary in form and
substance prescribed by the MGCL (each, an "Articles Supplementary"). Subject
to the express terms of any series of Preferred Stock outstanding at the time,
the Board of Directors may increase or decrease the number or alter the
designation or classify or reclassify any unissued shares of a particular
series of Preferred Stock by fixing or altering in one or more respects, from
time to time before issuing the shares, any terms, rights, restrictions and
qualifications of the shares, including any preference, conversion or other
rights, voting powers, restrictions, limitations as to dividends, qualifications
or terms or conditions of redemption of the shares of the series.
Section 4.4 Subject to the foregoing, the power of the Board of Directors to
classify and reclassify any of the shares of capital stock shall include,
without limitation, subject to the provisions of the Charter, authority to
classify or reclassify any unissued shares of such stock into a class or classes
of preferred stock, preference stock, special stock or other stock, and to
divide and classify shares of any class into one or more series of such class,
by determining, fixing or altering one or more of the following:
(a) the designation of such class or series, which may be by
distinguishing number, letter or title;
(b) the number of shares of such class or series, which number the Board
of Directors may thereafter (except where otherwise provided in the
Articles Supplementary) increase or decrease (but not below the number of
shares thereof then outstanding) and any shares of any class or series
which have been redeemed, purchased, otherwise acquired or converted into
shares of Common Stock or any other class or series shall become part of
the authorized capital stock and be subject to classification and
reclassification as provided in this Section;
(c) whether dividends, if any, shall be cumulative or noncumulative, and,
in the case of shares of any class or series having cumulative dividend
rights, the date or dates or method of determining the date or dates from
which dividends on the shares of such class or series shall be cumulative;
(d) the rate of any dividends (or method of determining such dividends)
payable to the holders of the shares of such class or series, any
conditions upon which such dividends shall be paid and the date or dates or
the method for determining the date or dates upon which such dividends
shall be payable, and whether any such dividends shall rank senior or
junior to or on a parity with the dividends payable on any other class or
series of stock;
(e) the price or prices (or method of determining such price or prices) at
which, the form of payment of such price or prices (which may be cash,
property or rights, including securities of the same or another corporation
or other entity) for which, the period or periods within which and the
terms and conditions upon which the shares of such class or series may be
redeemed, in whole or in part, at the option of the Corporation or at the
option of the holder or holders thereof or upon the happening of a
specified event or events, if any;
(f) the obligation, if any, of the Corporation to purchase or redeem
shares of such class or series pursuant to a sinking fund or otherwise and
the price or prices at which, the form of payment of such price or prices
(which may be cash, property or rights, including securities of the same or
another corporation or other entity) for which, the period or periods
within which and the terms and conditions upon which the shares of such
class or series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(g) the rights of the holders of shares of such class or series upon the
liquidation, dissolution or winding up of the affairs of, or upon any
distribution of the assets of, the Corporation, which rights may vary
depending upon whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at different dates,
and whether such rights shall rank senior or junior to or on a parity with
such rights of any other class or series of stock;
(h) provisions, if any, for the conversion or exchange of the shares of
such class or series, at any time or times at the option of the holder or
holders thereof or at the option of the Corporation or upon the happening
of a specified event or events, into shares of any other class or classes
or any other series of the same or any other class or classes of stock, or
any other security, of the Corporation, or any other corporation or other
entity, and the price or prices or rate or rates of conversion or exchange
and any adjustments applicable thereto, and all other terms and conditions
upon which such conversion or exchange may be made;
(i) restrictions on the issuance of shares of the same series or of any
other class or series, if any;
(j) the voting rights, if any, of the holders of shares of such class or
series in addition to any voting rights required by law;
(k) whether or not there shall be any limitations applicable, while shares
of such class or series are outstanding, upon the payment of dividends or
making of distributions on, or the acquisition of, or the use of moneys for
purchase or redemption of, any stock of the Corporation, or upon any other
action of the Corporation, including action under this Section, and, if so,
the terms and conditions thereof; and
(l) any other preferences, rights, restrictions, including restrictions on
transferability, and qualifications of shares of such class or series, not
inconsistent with law and the Charter.
Section 4.5 For the purposes hereof and of any Articles Supplementary to the
Charter providing for the classification or reclassification of any shares of
capital stock or of any other charter document of the Corporation (unless
otherwise provided in any such article or document), any class or series of
stock of the Corporation shall be deemed to rank:
(a) prior to another class or series either as to dividends or upon
liquidation, if the holders of such class or series shall be entitled to
the receipt of dividends or of amounts distributable on liquidation,
dissolution or winding up, as the case may be, in preference or priority to
holders of such other class or series;
(b) on a parity with another class or series either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation price per share thereof be different from
those of such others, if the holders of such class or series of stock shall
be entitled to receipt of dividends or amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in proportion
to their respective dividend rates or redemption or liquidation prices,
without preference or priority over the holders of such other class or
series; and
(c) junior to another class or series either as to dividends or upon
liquidation, if the rights of the holders of such class or series shall be
subject or subordinate to the rights of the holders of such other class or
series in respect of the receipt of dividends or the amounts distributable
upon liquidation, dissolution or winding up, as the case may be.
Section 4.6.
(a) In determining whether a distribution (other than upon voluntary or
involuntary liquidation), by dividend, redemption or other acquisition of
shares or otherwise, is permitted under the MGCL, no effect shall be given
to amounts that would be needed, if the Corporation were to be dissolved at
the time of the distribution, to satisfy the preferential rights upon
dissolution of stockholders whose preferential rights upon dissolution are
junior to those receiving the distribution.
(b) 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.
(c) Except as may be set forth in any Articles Supplementary, the Board of
Directors is hereby expressly authorized pursuant to Section 2-309(b)(5) of
the MGCL (or any successor similar or comparable provision) to declare or
pay a dividend payable in shares of one class of the Corporation's stock to
the holders of shares of such class of the Corporation's stock or to the
holders of shares of any other class of stock of the Corporation.
ARTICLE V
Stockholder Action
------------------
Section 5.1. Except as may be provided in any Articles Supplementary, any
corporate action upon which a vote of stockholders is required or permitted may
be taken without a meeting or vote of stockholders only with the unanimous
written consent of stockholders entitled to vote thereon.
Section 5.2. Except as otherwise required by the MGCL or as provided elsewhere
in the Charter or in the Bylaws, special meetings of stockholders of the
Corporation for any purpose or purposes may be called only by the Board of
Directors or by the President of the Corporation. No business other than that
stated in the notice of the special meeting shall be transacted at such special
meeting. Each of the Board of Directors, the President and Secretary of the
Corporation shall have the maximum power and authority permitted by the MGCL
with respect to the establishment of the date of any special meeting of
stockholders, the establishment of the record date for stockholders entitled to
vote thereat, the imposition of conditions on the conduct of any special meeting
of stockholders and all other matters relating to the call, conduct, adjournment
or postponement of any special meeting, regardless of whether the meeting was
convened by the Board of Directors, the President, the stockholders of the
Corporation or otherwise.
ARTICLE VI
Provisions Defining, Limiting
-----------------------------
and Regulating Powers
---------------------
Section 6.1. The following provisions are hereby adopted for the purposes of
defining, limiting and regulating the powers of the Corporation and the
directors and stockholders, subject, however, to any provisions, conditions and
restrictions hereafter authorized pursuant to Article IV hereof:
(a) The Board of Directors of the Corporation is empowered to authorize
the issuance from time to time of shares of its stock of any class, whether
now or hereafter authorized, and securities convertible into shares of its
stock of any class, whether now or hereafter authorized, for such
consideration as the Board of Directors may deem advisable, and without any
action by the stockholders.
(b) No holder of any stock or any other securities of the Corporation,
whether now or hereafter authorized, shall have any preemptive right to
subscribe for or purchase any stock or any other securities of the
Corporation other than such, if any, as the Board of Directors, in its sole
discretion, may determine and at such price or prices and upon such other
terms as the Board of Directors, in its sole discretion, may fix; and any
stock or other securities which the Board of Directors may determine to
offer for subscription may, as the Board of Directors in its sole
discretion shall determine, be offered to the holders of any class, series
or type of stock or other securities at the time outstanding to the
exclusion of the holders of any or all other classes, series or types of
stock or other securities at the time outstanding.
(c) The Board of Directors of the Corporation shall, consistent with
applicable law, have power in its sole discretion to determine from time to
time in accordance with sound accounting practice or other reasonable
valuation methods what constitutes annual or other net profits, earnings,
surplus, or net assets in excess of capital; to fix and vary from time to
time the amount to be reserved as working capital, or determine that
retained earnings or surplus shall remain in the hands of the Corporation;
to set apart out of any funds of the Corporation such reserve or reserves
in such amount or amounts and for such proper purpose or purposes as it
shall determine and to abolish any such reserve or any part thereof; to
distribute and pay distributions or dividends in stock, cash or other
securities or property, out of surplus or any other funds or amounts
legally available therefor, at such times and to the stockholders of record
on such dates as it may, from time to time, determine.
Section 6.2. Unless provided to the contrary in the MGCL or other applicable
law, the Charter or the Bylaws, the affirmative vote of a majority of the voting
power of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
Section 6.3. No directors shall be disqualified from voting or acting on behalf
of the Corporation in contracting with any other corporation in which he may be
a director, officer or stockholder, nor shall any director of the Corporation be
disqualified from voting or acting in its behalf by reason of any personal
interest.
Section 6.4. The Board of Directors shall have power to determine from time to
time whether and to what extent and at what times and places and under what
conditions and regulations the books, records, accounts and documents of the
Corporation, or any of them, shall be open to inspection by stockholders, except
as otherwise provided by law or by the Bylaws; and except as so provided no
stockholder shall have any right to inspect any book, record, account or
document of the Corporation unless authorized to do so by resolution of the
Board of Directors.
Section 6.5. The enumeration and definition of particular powers of the Board
of Directors included in the foregoing shall in no way be limited or restricted
by reference to or inference from the terms of any other clause of this or any
other Article of the Charter of the Corporation, or construed as or deemed by
inference or otherwise in any manner to exclude or limit any powers conferred
upon the Board of Directors under the General Laws of the State of Maryland now
or hereafter in force.
ARTICLE VII
Board of Directors
------------------
Section 7.1.
(a) The Corporation shall have three directors, which number may be
increased or decreased from time to time in such lawful manner as the
Bylaws of the Corporation shall provide, but shall never be less than the
minimum number permitted by the General Laws of the State of Maryland, as
now or hereafter in force.
(b) The directors, other than those who may be elected in accordance with
the terms of any Articles Supplementary, shall be divided into three
classes. Each such class shall consist, as nearly as may be possible, of
one-third of the total number of directors, and any remaining directors
shall be included with such group or groups as the Board of Directors shall
designate. At the annual meeting of the stockholders of the Corporation
for 1996, a class of directors shall be elected for a one-year term, a
class of directors shall be elected for a two-year term, and a class of
directors shall be elected for a three-year term. At each succeeding
annual meeting of stockholders, beginning with 1997, successors to the
class of directors whose term expires at that annual meeting shall be
elected for a three-year term. 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,
but in no case shall a decrease in the number of directors shorten the term
of any incumbent director.
(c) Except as provided by law with respect to directors elected by
stockholders of a class or series, any director or the entire Board of
Directors may be removed for cause, by the affirmative vote of the holders
of not less than 80% of the voting power of all Voting Stock (as defined
below) then outstanding, voting together as a single class. Subject to
such removal, or the death, resignation or retirement of a director, a
director shall hold office until the annual meeting of the stockholders for
the year in which such director's term expires and until a successor shall
be elected and qualified, except as provided in Section 7.1(d) hereof.
(d) Except as provided by law with respect to directors elected by
stockholders of a class or series, a vacancy on the Board of Directors
which results from the removal of a director may be filled by the
affirmative vote of the holders of not less than 80% of the voting power of
the then outstanding Voting Stock, voting together as a single class, and a
vacancy which results from any such removal or from any other cause may be
filled by a majority of the remaining directors, whether or not sufficient
to constitute a quorum. Any director so elected by the Board of Directors
shall hold office until the next annual meeting of stockholders and until
his successor is elected and qualifies and any director so elected by the
stockholders shall hold office for the remainder of the term of the removed
director. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(e) Except to the extent prohibited by law or limited by the Charter or
the Bylaws, the Board of Directors shall have the power (which, to the
extent exercised, shall be exclusive) to fix the number of directors and to
establish the rules and procedures that govern the internal affairs of the
Board of Directors and nominations for director, including without
limitation the vote required for any action by the Board of Directors, and
that from time to time shall affect the directors' power to manage the
business and affairs of the Corporation and no Bylaw shall be adopted by
the stockholders which shall modify the foregoing.
Section 7.2. Advance notice of stockholder nominations for the election of
directors and of the proposal of business by stockholders shall be given in the
manner provided in the Bylaws of the Corporation, as amended and in effect from
time to time. Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
ARTICLE VIII
Bylaws
------
Section 8.1. The Bylaws may contain any provision for the regulation and
management of the affairs of the Corporation not inconsistent with law or the
provisions of the Charter. Without limiting the foregoing, to the maximum
extent permitted by the MGCL from time to time, the Corporation may in its
Bylaws confer upon the Board of Directors powers and authorities in addition to
those set forth in the Charter and in addition to those expressly conferred upon
the Board of Directors by statute as long as such powers and authorities are not
inconsistent with the provisions of the Charter.
Section 8.2. Except as provided in the Charter, the Bylaws may be altered or
repealed and new Bylaws may be adopted (a) subject to Section 7.1(e), at any
annual or special meeting of stockholders, by the affirmative vote of the
holders of a majority of the voting power of all shares of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock")
then outstanding, voting together as a single class; provided, however, that any
proposed alteration or repeal of, or the adoption of any Bylaw inconsistent
with, Sections 2, 8 or 11 of Article I of the Bylaws, with Section 1, 2 or 3 of
Article II of the Bylaws, or Article X of the Bylaws or this sentence, by the
stockholders shall require the affirmative vote of the holders of at least 80%
of the voting power of all Voting Stock then outstanding, voting together as a
single class; and provided, further, however, that in the case of any such
stockholder action at a special meeting of stockholders, notice of the proposed
alteration, repeal or adoption of the new Bylaw or Bylaws must be contained in
the notice of such special meeting, or (b) by the affirmative vote of a majority
of the total number of directors which the Corporation would have if there were
no vacancies on the Board.
ARTICLE IX
Amendment of Charter
--------------------
Section 9.1. The Corporation reserves the right to adopt, repeal, rescind,
alter or otherwise amend in any respect any provision contained in this Charter,
including but not limited to, any amendments changing the terms or contract
rights of any class of its stock by classification, reclassification or
otherwise, and all rights now or hereafter conferred on stockholders are granted
subject to this reservation. Any amendment of the Charter shall be valid and
effective if such amendment shall have been authorized by the affirmative vote
at a meeting of the stockholders duly called for such purpose of a majority of
the total number of shares outstanding and entitled to vote thereon, except that
the affirmative vote of the holders of at least 80% of the Voting Stock then
outstanding, voting together as a single class, at a meeting of the stockholders
duly called for such purpose shall be required to alter, amend, adopt any
provision inconsistent with or repeal Article V, Article VII, Section 8.2 of
Article VIII, or this Article IX of the Charter.
ARTICLE X
Limited Liability; Indemnification
----------------------------------
Section 10.1. To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no director or officer of the
Corporation shall be personally liable to the Corporation or its stockholders
for money damages. No amendment of the Charter of the Corporation or repeal of
any of its provisions shall limit or eliminate the benefits provided to
directors and officers under this provision with respect to any act or omission
which occurred prior to such amendment or repeal or with respect to any cause of
action, suit or claim that, but for this Section 10.1 of this Article X, would
accrue or arise, prior to such amendment or repeal.
Section 10.2. The Corporation shall indemnify (a) its directors and officers,
whether serving the Corporation or, at its request, any other entity, to the
fullest extent required or permitted by the General Laws of the State of
Maryland now or hereafter in force, including the advance of expenses under the
procedures and to the fullest extent permitted by law and (b) other employees
and agents to such extent as shall be authorized by the Board of Directors or
the Corporation's Bylaws and be permitted by law. The foregoing rights of
indemnification shall not be exclusive of any other rights to which those
seeking indemnification may be entitled. The Board of Directors may take such
action as is necessary to carry out these indemnification provisions and is
expressly empowered to adopt, approve and amend from time to time such bylaws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment of the
Charter, or of any such bylaw, resolution or contract, or repeal of any of their
provisions shall limit or eliminate the right to indemnification provided
hereunder or thereunder with respect to acts or omissions occurring prior to
such amendment or repeal.
ARTICLE XI
Duration
--------
Section 11.1. The duration of the Corporation shall be perpetual.
THIRD:
(i) As of immediately before the amendment the total number of shares of
stock of all classes which the Corporation had authority to issue was
285,000,000 shares, par value $5.00 per share, having an aggregate par
value of $1,425,000,000, of which 10,000,000 shares having an aggregate par
value of $50,000,000 are Cumulative Preferred Stock and 275,000,000 shares
having an aggregate par value of $1,375,000,000 are Common Stock.
(ii) As amended the total number of shares of stock of all classes which
the Corporation has authority to issue is 600,000,000 shares, of which
100,000,000 shares are Preferred Stock, with a par value of $.01 per share,
and 500,000,000 shares are Common Stock, with a par value of $.01 share,
for an aggregate par value of $6,000,000.
(iii) The shares of stock of the Corporation are divided into classes, and
the description, as amended, of each class, including the preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, and terms and conditions of redemption are
contained in Article IV of these Articles of Amendment and Restatement.
FOURTH: The amendment to and restatement of the Charter of the Corporation as
hereinabove set forth have been declared advisable by the Board of Directors of
the Corporation and approved by the sole stockholder of the Corporation as
required by law.
FIFTH: The current address of the principal office of the Corporation in
Maryland and the name and address of the Corporation's current resident agent
are as set forth in Article II of the amended and restated Charter of the
Corporation. There are three directors currently in office, whose names are as
follows:
Lars Nyberg
John L. Giering
Jonathan S. Hoak
IN WITNESS WHEREOF, the Corporation has caused these presents to be signed in
its name and on its behalf by its President and witnessed by its Secretary on
this 20th day of December, 1996.
NCR CORPORATION
By: /s/ Lars Nyberg
------------------------
Name: Lars Nyberg
Title: President
ATTEST:
/s/ Laura K. Nyquist
- --------------------------
Name: Laura K. Nyquist
Title: Secretary
THE UNDERSIGNED, the President of NCR Corporation who executed on behalf of the
Corporation the foregoing Articles of Amendment and Restatement of which this
certificate is made a part, hereby acknowledges in the name and on behalf of the
Corporation the foregoing Articles of Amendment and Restatement to be the
corporate act of the Corporation and hereby certifies to the best of his
knowledge, information and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
/s/ Lars Nyberg
------------------------
Name: Lars Nyberg
Title: President
ARTICLES SUPPLEMENTARY
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
NCR CORPORATION
(Pursuant to Section 2-208 of the
Maryland General Corporation Law)
-----------------------------
NCR Corporation, a Maryland corporation having its principal business office in
Dayton, Ohio, and its principal office in the City of Rockville, State of
Maryland (hereinafter called the "Corporation"), hereby certifies to the State
Department of Assessments and Taxation of Maryland that the following resolution
was adopted by the Board of Directors of the Corporation by unanimous written
consent on December 20, 1996 and that these Articles do not increase the
authorized capital stock of the Corporation:
RESOLVED, that pursuant to the authority granted to and vested in the Board of
Directors of this Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of the Articles of Amendment and
Restatement of the Charter of the Corporation, the Board of Directors hereby
creates a series of Preferred Stock, par value $.01 per share (the "Preferred
Stock"), of the Corporation and hereby states the designation and number of
shares, and fixes the relative rights, preferences, and limitations thereof as
follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series 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 1,500,000. 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.
Section 2. Dividends and Distributions.
(A) 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,
par value $.01 per share (the "Common Stock"), of the Corporation, and of
any other junior stock, 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 first 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 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 a subdivision of the outstanding 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 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.
(B) The Corporation shall declare a dividend or distribution on the Series
A 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, in the
event 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 per share
on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) 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.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) 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 stockholders 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.
(B) Except as otherwise provided herein, in any other Articles
Supplementary 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 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 stockholders of the Corporation.
(C) 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 as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 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:
(i) 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;
(ii) 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;
(iii) 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
(iv) 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.
(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.
Section 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 Charter of
the Corporation, or in any other Articles Supplementary creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
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 (2) 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 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 aggregate amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the proviso in clause
(1) 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.
Section 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.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
Section 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.
Section 10. Amendment. The Charter of the Corporation shall not be amended in
any manner which would materially alter or change the powers, preferences or
special 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.
IN WITNESS WHEREOF, NCR Corporation has caused these presents to be signed in
its name and on its behalf by its Senior Vice President and witnessed by its
Assistant Secretary this 26th day of December, 1996.
NCR CORPORATION
By: /s/ Jonathan S. Hoak
-------------------------
Jonathan S. Hoak
Senior Vice President
Witness:
/s/ Julie D. Gallagher
- -----------------------
Name: Julie D. Gallagher
Title: Assistant Secretary
THE UNDERSIGNED, Senior Vice President of NCR Corporation, who executed on
behalf of the Corporation Articles Supplementary of which this Certificate is
made a part, hereby acknowledges in the name and on behalf of said Corporation
the foregoing Articles Supplementary to be the corporate act of said Corporation
and hereby certifies that the matters and facts set forth herein with respect to
the authorization and approval thereof are true in all material respects under
the penalties of perjury.
/s/ Jonathan S. Hoak
--------------------------
Jonathan S. Hoak
Senior Vice President