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EXHIBIT 3.1
DELL COMPUTER CORPORATION
RESTATED CERTIFICATE OF INCORPORATION
This Restated Certificate of Incorporation was duly adopted by the
corporation's Board of Directors on March 1, 2000 in accordance with Section 245
of the General Corporation Law of the State of Delaware. It only restates and
integrates, and does not further amend, the provisions of the corporation's
original Certificate of Incorporation (which was filed with the Secretary of
State of the State of Delaware on October 22, 1987), as such original
Certificate of Incorporation had theretofore been amended or supplemented. There
is no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
FIRST: The name of the corporation is DELL COMPUTER CORPORATION.
SECOND: The address of the registered office of the corporation in the
State of Delaware is 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
corporation at such address is Corporation Service Company.
THIRD: The nature of the business or purposes to be conducted or
promoted by the corporation is to engage in any lawful business, act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The total number of shares of capital stock of the Corporation
shall be seven billion and five million (7,005,000,000), which shall consist of
five million (5,000,000) shares of Preferred Stock, of the par value of $.01 per
share, and seven billion (7,000,000,000) shares of Common Stock, of the par
value of $.01 per share.
The following is a statement fixing certain of the designations and
powers, voting powers, preferences, and relative, participating, optional or
other rights of the Preferred Stock and the Common Stock of the corporation, and
the qualifications, limitations or restrictions thereof, and the authority with
respect thereto expressly granted to the Board of Directors of the corporation
to fix any such provisions not fixed by this Certificate:
I. Preferred Stock
The Board of Directors is hereby expressly vested with the authority to
adopt a resolution or resolutions providing for the issue of authorized but
unissued shares of Preferred Stock, which shares may be issued from time to time
in one or more series and in such amounts as may be determined by the Board of
Directors in such resolution or resolutions. The powers, voting powers,
designations, preferences, and relative, participating, optional or other
rights, if any, of each series of Preferred Stock and the qualifications,
limitations or restrictions, if any, of such preferences and/or rights
(collectively the "Series Terms"), shall be such as are stated and expressed in
a resolution or resolutions providing for the creation or revision of such
Series Terms (a "Preferred Stock Series Resolution") adopted by the Board of
Directors or a committee of the Board of Directors to which such responsibility
is specifically and lawfully delegated. The powers of the Board with respect to
the Series Terms of a particular series (any of which powers, other than voting
powers, may by resolution of the Board of Directors be
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specifically delegated to one or more of its committees, except as prohibited by
law) shall include, but not be limited to, determination of the following:
(1) The number of shares constituting that series and the
distinctive designation of that series, or any increase or decrease
(but not below the number of shares thereof then outstanding) in such
number;
(2) The dividend rate on the shares of that series, whether
such dividends, if any, shall be cumulative, and, if so, the date or
dates from which dividends payable on such shares shall accumulate, and
the relative rights of priority, if any, of payment of dividends on
shares of that series;
(3) Whether that series shall have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of such
voting rights;
(4) Whether that series shall have conversion privileges with
respect to shares of any other class or classes of stock or of any
other series of any class of stock, and, if so, the terms and
conditions of such conversion, including provision for adjustment of
the conversion rate upon occurrence of such events as the Board of
Directors shall determine;
(5) Whether the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including
their relative rights of priority, if any, of redemption, the date or
dates upon or after which they shall be redeemable, provisions
regarding redemption notices, and the amount per share payable in case
of redemption, which amount may vary under different conditions and at
different redemption dates;
(6) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms
and amount of such sinking fund;
(7) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution, or winding up of the
corporation, and the relative rights of priority, if any, of payment of
shares of that series;
(8) The conditions or restrictions upon the creation of
indebtedness of the corporation or upon the issuance of additional
Preferred Stock or other capital stock ranking on a parity therewith,
or senior thereto, with respect to dividends or distribution of assets
upon liquidation;
(9) The conditions or restrictions with respect to the
issuance of, payment of dividends upon, or the making of other
distributions to, or the acquisition or redemption of, shares ranking
junior to the Preferred Stock or to any series thereof with respect to
dividends or distribution of assets upon liquidation; and
(10) Any other designations, powers, preferences, and rights,
including, without limitation any qualifications, limitations, or
restrictions thereof.
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Any of the Series Terms, including voting rights, of any series may be
made dependent upon facts ascertainable outside the Certificate of Incorporation
and the Preferred Stock Series Resolution, provided that the manner in which
such facts shall operate upon such Series Terms is clearly and expressly set
forth in the Certificate of Incorporation or in the Preferred Stock Series
Resolution.
Subject to the provisions of this Article Fourth, shares of one or more
series of Preferred Stock may be authorized or issued from time to time as shall
be determined by and for such consideration as shall be fixed by the Board of
Directors or a designated committee thereof, in an aggregate amount not
exceeding the total number of shares of Preferred Stock authorized by this
Certificate of Incorporation. Except in respect of series particulars fixed by
the Board of Directors or its committee as permitted hereby, all shares of
Preferred Stock shall be of equal rank and shall be identical. All shares of any
one series of Preferred Stock so designated by the Board of Directors shall be
alike in every particular, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon shall be
cumulative.
Attached hereto as Exhibit A is a Certificate of Designations of Series
A Junior Participating Preferred Stock, which was filed on December 4, 1995 and
sets forth the Series Terms of the only series of Preferred Stock that is
currently effective.
II. Common Stock
1. Dividends. Subject to the provisions of any Preferred Stock Series
Resolution, the Board of Directors may, in its discretion, out of funds legally
available for the payment of dividends and at such times and in such manner as
determined by the Board of Directors, declare and pay dividends on the Common
Stock of the corporation.
No dividend (other than a dividend in capital stock ranking on a parity
with the Common Stock or cash in lieu of fractional shares with respect to such
stock dividend) shall be declared or paid on any share or shares of any class of
stock or series thereof ranking on a parity with the Common Stock in respect of
payment of dividends for any dividend period unless there shall have been
declared, for the same dividend period, like proportionate dividends on all
shares of Common Stock then outstanding.
2. Liquidation. In the event of any liquidation, dissolution or winding
up of the corporation, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the corporation and
payment or setting aside for payment of any preferential amount due to the
holders of any other class or series of stock, the holders of the Common Stock
shall be entitled to receive ratably any or all assets remaining to be paid or
distributed.
3. Voting Rights. Subject to any special voting rights set forth in any
Preferred Stock Series Resolution, the holders of the Common Stock of the
corporation shall be entitled at all meetings of stockholders to one vote for
each share of such stock held by them.
III. Senior, Parity or Junior Stock
Whenever reference is made in this Article Fourth to shares "ranking
senior to" another class of stock or "on a parity with" another class of stock,
such reference shall mean and
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include all other shares of the corporation in respect of which the rights of
the holders thereof as to the payment of dividends or as to distributions in the
event of a voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the corporation are given preference over, or rank on an equality
with, as the case may be, the rights of the holders of such other class of
stock. Whenever reference is made to shares "ranking junior to" another class of
stock, such reference shall mean and include all shares of the corporation in
respect of which the rights of the holders thereof as to the payment of
dividends and as to distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the corporation are
junior and subordinate to the rights of the holders of such class of stock.
Except as otherwise provided herein or in any Preferred Stock Series
Resolution, each series of Preferred Stock ranks on a parity with each other and
each ranks senior to the Common Stock. Common Stock ranks junior to the
Preferred Stock.
IV. Liquidation Notices
Written notice of any voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the corporation, stating a payment date and the
place where the distributable amounts shall be payable, shall be given by mail,
postage prepaid, not less than thirty (30) days prior to the payment date stated
therein, to the holders of record of the Preferred Stock, if any, at their
respective addresses as the same shall appear on the books of the corporation.
V. Reservation and Retirement of Shares
The corporation shall at all times reserve and keep available, out of
its authorized but unissued shares of Common Stock or out of shares of Common
Stock held in its treasury, the full number of shares of Common Stock into which
all shares of any series of Preferred Stock having conversion privileges from
time to time outstanding are convertible.
Unless otherwise provided in a Preferred Stock Series Resolution with
respect to a particular series of Preferred Stock, all shares of Preferred Stock
redeemed or acquired (as a result of conversion or otherwise) shall be retired
and restored to the status of authorized but unissued shares.
VI. No Preemptive Rights
Subject to the provisions of any Preferred Stock Series Resolution, no
holder of shares of stock of the corporation shall have any preemptive or other
rights, except as such rights are expressly provided by contract, to purchase or
subscribe for or receive any shares of any class, or series thereof, of stock of
the corporation, whether now or hereafter authorized, or any warrants, options,
bonds, debentures or other securities convertible into, exchangeable for or
carrying any right to purchase any shares of any class, or series thereof, of
stock; but subject to the provisions of any Preferred Stock Series Resolution,
such additional shares of stock and such warrants, options, bonds, debentures or
other securities convertible into, exchangeable for or carrying any right to
purchase any shares of any class, or series thereof, of stock may be issued or
disposed of by the Board of Directors to such persons, and on such terms and for
such lawful consideration, as in its discretion it shall deem advisable or as to
which the corporation shall have by binding contract agreed.
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FIFTH: OMITTED
SIXTH: The number of directors of the corporation shall be fixed as
specified or provided for in the by-laws of the corporation. Election of
directors need not be by written ballot unless the bylaws shall so provide. No
holders of Preferred Stock or Common Stock of the corporation shall have any
right to cumulate votes in the election of directors.
SEVENTH: The directors shall be classified, with respect to the time
for which they severally hold office, into three classes, as nearly equal in
number a possible, as shall be provided in the manner specified in the by-laws
of the Corporation, one class to be originally elected for a term expiring on
the annual meeting of stockholders to be held in 1992, another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 1993, and another class to be originally elected for a term expiring
at the annual meeting of stock holders to be held in 1994, with each class to
hold office until its successor is elected and qualified. At each annual meeting
of the stockholders of the Corporation, the successors of the class of directors
whose term expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
Any director may be removed from office, but only for cause, by a vote
of the holders of a majority of the shares then issued and outstanding. Cause
shall mean willful and gross misconduct by the director that is materially
adverse to the best interests of the Corporation, as determined conclusively by
a majority of the disinterested directors of the Corporation.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors may be filled by a majority of the
directors then in office, although less than a quorum, or the sole remaining
director, and shall not be filled by the stockholders; any director so chosen
shall hold office until the next election of the class for which such director
shall have been chosen, and until his successor shall be duly elected and shall
qualify, unless sooner displaced.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 66 2/3% of the
shares of the Corporation's voting stock issued and outstanding shall be
required to alter, amend, adopt any provision inconsistent with or repeal this
Article Seventh.
EIGHTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing by such holders. Notwithstanding anything contained in this Certificate
of Incorporation to the contrary, the affirmative vote of the holders of at
least 66 2/3% of the shares of the Corporation's stock issued and outstanding
shall be required to alter, amend, adopt any provision inconsistent with or
repeal this Article Eighth.
NINTH: The Board of Directors is hereby expressly authorized to adopt,
amend or repeal the by-laws of the Corporation or adopt new by-laws, without any
action on the part of the stockholders, by the vote of a majority of the
directors; provided, however, that no such adoption, amendment, or repeal shall
be valid with respect to by-law provisions which have been adopted, amended, or
repealed by the stockholders; and further provided, that by-laws adopted or
amended by the Directors and any powers thereby conferred may be amended,
altered, or repealed by the stockholders. Notwithstanding the foregoing and
anything in this Certificate of Incorporation to the contrary, Article II
Section 1, Article II Section 4, Article II
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Section 12, Article III Section 6, Article III Section 7, Article III Section 12
and Article IX of the by-laws shall not be amended, repealed, altered or added
to by the stockholders, and no provision inconsistent therewith shall be adopted
by the stockholders without the affirmative vote of the holders of at least 66
2/3% of the Corporation's voting stock issued and outstanding. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 66 2/3% of the Corporation's voting
stock issued and outstanding shall be required to alter, amend, adopt any
provision inconsistent with or repeal this Article Ninth.
TENTH: A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for such liability as is expressly not subject to
limitation under the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended to further limit or eliminate such
liability. Moreover, the corporation shall, to the fullest extent permitted by
law, indemnify any and all officers and directors of the corporation, and may,
to the fullest extent permitted by law or to such lesser extent as is determined
in the discretion of the Board of Directors, indemnify any and all other persons
whom it shall have power to indemnify, from and against all expenses,
liabilities or other matters arising out of their status as such or their acts,
omissions or services rendered in such capacities. The corporation shall have
the power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against 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.
ELEVENTH: The corporation shall have the right, subject to any express
provisions or restrictions contained in the Certificate of Incorporation or
by-laws of the corporation, from time to time, to amend the Certificate of
incorporation or any provision thereof in any manner now or hereafter provided
by law, and all rights and powers of any kind conferred upon a director or
stockholder of the corporation by this Certificate of Incorporation or any
amendment thereof are conferred subject to such right.
I, the undersigned, being Secretary of the Corporation, do execute and
file this Restated Certificate of Incorporation, having been so authorized by
resolution of the corporation's Board of Directors dated March 1, 2001.
/s/ THOMAS B. GREEN
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Thomas B. Green
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EXHIBIT A
The attached Certificate of Designations of Series A Junior Participating
Preferred Stock, which was filed on December 4, 19995, is not affected by the
filing of this Restated Certificate of Incorporation, and will remain in full
force and affect.
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CERTIFICATE OF DESIGNATIONS
Of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Of
DELL COMPUTER CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
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Dell Computer Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called the
"Corporation", hereby certifies that the following resolution was adopted by the
Board of Directors of the Corporation as required by Section 151 of the General
Corporation Law at a meeting duly called and held on November 29, 1995:
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 Certificate
of Incorporation, 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 I. 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 200,000. 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 II. 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
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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, 1000 times the aggregate per share amount of all cash dividends,
and 1000 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
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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 III. 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 1000 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
Certificate of Designations 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 IV. 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:
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1. 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;
2. 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;
3. 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
4. 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 V. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section VI. 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
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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 $1000 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 1000 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 VII. 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 1000 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 VIII. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
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Section IX. 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 X. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special 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, this Certificate of Designations is executed on
behalf of the Corporation by its Chairman of the Board and attested by its
Secretary this 29th day of November, 1995.
/s/ MICHAEL S. DELL
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Chairman of the Board
Attest:
/s/ THOMAS B. GREEN
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Secretary