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Exhibit (3)(i)a
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
COMMERCIAL METALS COMPANY
COMMERCIAL METALS COMPANY, a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Corporation"), DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, at a meeting
duly held, adopted resolutions setting forth the following amendment to the
Corporation's Restated Certificate of Incorporation, declaring this amendment
to be advisable and designating the next annual meeting of the stockholders of
the Corporation for consideration thereof:
The present Article Seventeenth of the Corporation's Restated
Certificate of Incorporation shall be replaced in its entirety by the
following:
SEVENTEENTH: The stockholder vote required to approve any Business
Combination (as hereinafter defined) shall be as set forth in this Article
Seventeenth.
(a)(1) Except as otherwise expressly provided in paragraph (b) of this
Article Seventeenth:
(A) Any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
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(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the corporation or any
Subsidiary having an aggregate Fair Market Value (as hereinafter
defined) of $25,000,000 or more; or
(C) the issuance or transfer by the corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in exchange
for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $25,000,000 or more; or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on behalf
of any Interested Stockholder or any Affiliate of any Interested
Stockholder; or
(E) any reclassification of securities (including any
reverse stock split) or recapitalization of the corporation, or any
merger or consolidation of the corporation with any of its
Subsidiaries or any other transaction (whether or not with or into or
otherwise involving any Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of
the corporation or any subsidiary which is directly or indirectly
owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 70% of the voting
power of all of the then-outstanding shares of the Voting Stock, voting
together as a single class (it being understood that for purposes of this
Article Seventeenth, each share of the Voting Stock shall have the number of
votes granted to it pursuant to Article Fourth of this Restated Certificate of
Incorporation). Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that a lesser percentage may be
specified, by law or in any agreement with any national securities exchange or
otherwise, and shall be required in addition to any affirmative vote of the
holders of any particular class or series of Voting Stock required by law or
this Restated Certificate of Incorporation.
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(2) The term "Business Combination" as used in this Article
Seventeenth shall mean any transaction which is referred to in any one or more
of subsections (A) through (E) of subparagraph (1) of this section (a).
(b) The provisions of section (a) of this Article Seventeenth
shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as is required by
law, by any other provision of this Restated Certificate of Incorporation or by
any agreement with any national securities exchange, if, in the case of a
Business Combination that does not involve any cash or other consideration
being received by the stockholders of the corporation, solely in their
respective capacities as stockholders of the corporation, the condition
specified in the following subparagraph (1) is met, or, in the case of any
other Business Combination, the conditions specified in either of the following
subparagraphs (1) or (2) are met:
(1) The Business Combination shall have been approved by
a majority of the Disinterested Directors (as hereinafter defined), it
being understood that this condition shall not be capable of
satisfaction unless there is at least one Disinterested Director.
(2) All of the following conditions shall have been met:
(A) The consideration to be received by holders
of shares of a particular class of outstanding Voting Stock
shall be in cash or in the same form as the Interested
Stockholder has paid for shares of such class of Voting Stock
within the two-year period ending on and including the date on
which the Interested Stockholder became an Interested
Stockholder (the "Determination Date"). If, within such
two-year period, the Interested Stockholder has paid for
shares of any class of Voting Stock with varying forms of
consideration, the form of consideration to be received per
share by holders of shares of such class of Voting Stock shall
be either cash or the form used to acquire the largest number
of shares of such class of Voting Stock acquired by the
Interested Stockholder within such two-year period.
(B) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the date (the "Consummation
Date") of the consummation of the Business Combination, of the
consideration other than
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cash to be received per share by holders of Common Stock in
such Business Combination shall be at least equal to the
higher of the following (it being intended that the
requirements of this subparagraph (2)(B) shall be required to
be met with respect to all shares of Common Stock outstanding
whether or not the Interested Stockholder has previously
acquired any shares of Common Stock):
(i) (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of Common
Stock acquired by it within the two-year period
immediately prior to the date of the first public
announcement of the proposal of the Business
Combination (the "Announcement Date") or in the
transaction in which it became an Interested
Stockholder, whichever is higher, plus interest
compounded annually from the Determination Date
through the Consummation Date at the prime rate of
interest of Citibank, N.A. (or such other bank as may
be selected by the Disinterested Directors), in
effect from time to time, less the aggregate amount
of any cash dividends paid, and the Fair Market Value
of any dividends paid in other than cash, on each
share of Common Stock from the Determination Date
through the Consummation Date, in an amount up to but
not exceeding the amount of interest so payable per
share of Common Stock; or
(ii) The Fair Market Value per share of
Common Stock on the Announcement Date.
(C) The aggregate amount of (x) the cash and (y)
the Fair Market Value, as of the Consummation Date, of the
consideration other than cash to be received per share by
holders of shares of any class, other than Common Stock, of
outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the
requirements of this subparagraph (2)(C) shall be required to
be met with respect to every such class of outstanding Voting
Stock, whether or not the Interested Stockholder has
previously acquired any shares of a particular class of Voting
Stock):
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(i) (if applicable) the highest per
share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of such
class of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement
Date or in the transaction in which it became an
Interested Stockholder, whichever is higher, plus
interest compounded annually from the Determination
Date through the Consummation Date at the prime rate
of interest of Citibank, N.A. (or such other bank as
may be selected by the Disinterested Directors), in
effect from time to time, less the aggregate amount
of any cash dividends paid, and the Fair Market Value
of any dividends paid in other than cash, on each
share of such class of Voting Stock from the
Determination Date through the Consummation Date in
an amount up to but not exceeding the amount of
interest so payable per share of such class of Voting
Stock; or
(ii) the Fair Market Value per share of
such class of Voting Stock on the Announcement Date;
or
(iii) the highest preferential amount per
share to which the holders of shares of such class of
Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the corporation.
(D) After such Interested Stockholder has become
an Interested Stockholder and prior to the consummation of
such Business Combination: (x) except as approved by a
majority of the Disinterested Directors, there shall have been
no failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on any
outstanding Preferred Stock; (y) there shall have been (i) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the
Disinterested Directors, and (ii) an increase in such annual
rate of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common
Stock,
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unless the failure so to increase such annual rate is approved
by a majority of the Disinterested Directors; and (z) such
Interested Stockholder shall have not become the beneficial
owner of any additional shares of Voting Stock except as part
of the transaction which results in such Interested
Stockholder's becoming an Interested Stockholder.
(E) After such Interested Stockholder has become
an Interested Stockholder, such interested Stockholder shall
not have received the benefit, directly or indirectly (except
proportionately as a stockholder of the corporation), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided
by the corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(F) A proxy or information statement describing
the proposed Business combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
all stockholders of the corporation at least 30 days prior to
the consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions).
(c) For the purposes of this Article Seventeenth:
(1) A "person" shall mean any individual, firm,
corporation or other entity.
(2) "Interested Stockholder" shall mean any person (other
than the corporation or any Subsidiary) who or which:
(A) is the beneficial owner, directly or
indirectly, of more than 10% of the voting power of the
outstanding Voting Stock; or
(B) is an Affiliate of the corporation and at any
time within the two-year period immediately prior to the date
in question was the beneficial owner, directly or indirectly,
of 10% or more of the voting power of the then-outstanding
Voting Stock; or
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(C) is an assignee of or has otherwise succeeded
to any shares of Voting Stock which were at any time within
the two-year period immediately prior to the date in question
beneficially owned by an Interested Stockholder, if such
assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933;
provided that the Trust shall not be an Interested Stockholder until such time
as the Trust shall become the beneficial owner of any shares of Voting Stock in
addition to the shares of Voting Stock of which it was the beneficial owner on
January 27, 1994; provided further that the Trust shall not become an
Interested Stockholder solely as a result of action taken solely by the
corporation that benefits all holders of Voting Stock pro rata based on their
ownership of Voting Stock.
(3) A person shall be a "beneficial owner" of any Voting
Stock:
(A) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
(B) which such person or any of its Affiliates or
Associates has (x) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (y) the right to vote
pursuant to any agreement, arrangement or understanding; or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
(4) For the purposes of determining whether a person is
an Interested Stockholder pursuant to subparagraph (2) of this
paragraph (c), the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application of
subparagraph (3) of this paragraph (c), but shall not include any
other shares of Voting Stock which may be issuable pursuant to any
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agreement, arrangement, or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1994.
(6) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the corporation; provided, however, that for the
purposes of the definition of Interested Stockholder set forth in
subparagraph (2) of this paragraph (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the corporation.
(7) "Disinterested Director" means any member of the
board of directors of the corporation (the "Board") who is
unaffiliated with the Interested Stockholder and was a member of the
Board prior to the time that the Interested Stockholder became an
Interested Stockholder, and any successor of a Disinterested Director
who is unaffiliated with the Interested Stockholder and is recommended
to succeed a Disinterested Director by a majority of Disinterested
Directors then on the Board.
(8) "Fair Market Value" means: (x) in the case of stock,
the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange-Listed Stocks, or, if such
stock is not quoted on the Composite Tape, on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, on the National Market
System of the National Association of Securities Dealers, Inc.
Automated Quotations System, or if such stock is not quoted on the
National Market System, the highest closing bid quotation with respect
to a share of such stock during the 30-day period preceding the date
in question on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or, if no such
quotations are available, the fair market value on the date in
question of a share of such stock as determined by the Board in good
faith; and (y) in the case
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of property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board in good
faith.
(9) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be
received" as used in subparagraphs (2)(A) and (2)(C) of paragraph (b)
of this Article Seventeenth shall include the shares of Common Stock
and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(d) A majority of the total number of Disinterested Directors
(whether or not there exist any vacancies in previously authorized
directorships at the time any such determination as is hereinafter in this
paragraph (d) specified is to be made by the Board) shall have the power and
duty to determine, on the basis of information known to them after reasonable
inquiry, all facts necessary to determine compliance with this Article
Seventeenth, including, without limitation, (1) whether a person is an
Interested Stockholder, (2) the number of shares of Voting Stock beneficially
owned by any person, (3) whether a person is an Affiliate or Associate of
another, (4) whether the applicable conditions set forth in subparagraph (2) of
paragraph (b) have been met with respect to any Business Combination, and (5)
whether the assets which are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
the corporation or any subsidiary in any Business Combination has, an aggregate
Fair Market Value of $25,000,000 or more.
(e) Nothing contained in this Article Seventeenth shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(f) Unless extended pursuant to Article Twelfth of this Restated
Certificate of Incorporation, the provisions of this Article Seventeenth shall
expire and no longer be of any effect after 12 noon, Central time, on January
28, 1999.
SECOND: That thereafter, pursuant to a resolution of the Board of
Directors of the Corporation, an annual meeting of stockholders of the
Corporation was duly called and held, upon notice in accordance with Section
222 of the General Corporation Law of the State of Delaware, at which meeting
the
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necessary number of shares as required by statute were voted in favor of the
amendment.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of section 242 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by Stanley A. Rabin, its President, and attested by David M. Sudbury,
its Secretary this 1st day of February, 1994.
COMMERCIAL METALS COMPANY
By: /s/ STANLEY A. RABIN
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Stanley A.Rabin
President
ATTEST:
By: /s/ DAVID M. SUDBURY
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David M. Sudbury
Secretary
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