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EXHIBIT 3(i)
CERTIFICATE OF INCORPORATION
OF
ATLANTIC BEVERAGE COMPANY, INC.
1. NAME
The name of this corporation is Atlantic Beverage Company, Inc. (the
"Corporation").
2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at 1013
Centre Road, Wilmington, Delaware 19805 in the County of New Castle. The
registered agent of the Corporation at such address shall be Corporation Service
Company.
3. PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law"). The
Corporation shall have all power necessary or helpful to engage in such acts and
activities.
4. CAPITAL STOCK
4.1. AUTHORIZED SHARES
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is 35,000,000, of which
5,000,000 shares shall be Preferred Stock, having a par value of $.01 per share
("Preferred Stock") and 30,000,000 shares shall be Common Stock having a par
value of $.01 per share ("Common Stock"). The Board of Directors is expressly
authorized to provide for the classification and reclassification of any
unissued shares of Preferred Stock or Common Stock and the issuance thereof in
one or more classes or series without the approval of the stockholders of the
Corporation.
4.2. COMMON STOCK
4.2.1. RELATIVE RIGHTS
The Common Stock shall be subject to all of the rights, privileges,
preferences and priorities of the Preferred Stock as set forth in the
certificate of designations filed to establish the respective series of
Preferred Stock. Each share of Common Stock shall have the same relative rights
as and be identical in all respects to all the other shares of Common Stock.
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4.2.2. DIVIDENDS
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Stock as to the payment of dividends, the full amount of dividends
and of sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then dividends may be
paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and as declared by the Board of
Directors of the Corporation.
4.2.3. DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock
shall become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or set aside for
payment, to the holders of any class of stock having preference over the Common
Stock in the event of dissolution, liquidation or winding up the full
preferential amounts (if any) to which they are entitled.
4.2.4. VOTING RIGHTS
Each holder of shares of Common Stock shall be entitled to attend all
special and annual meetings of the stockholders of the Corporation and, share
for share and without regard to class, together with the holders of all other
classes of stock entitled to attend such meetings and to vote (except any class
or series of stock having special voting rights), to cast one vote for each
outstanding share of Common Stock so held upon any matter or thing (including,
without limitation, the election of one or more directors) properly considered
an act upon by the stockholders.
4.3. PREFERRED STOCK
4.3.1. ESTABLISHMENT OF SERIES
The Board of Directors is expressly authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Certificate of Incorporation, to provide, by resolution and by filing a
certificate of designations pursuant to the Delaware General Corporation Law,
for the issuance of the shares of Preferred Stock in series, to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and other rights of the shares of each such
series and to fix the qualifications, limitations and restrictions thereon. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
(i) the number of shares constituting that series and the
distinctive designation of that series;
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(ii) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and the relative rights of priority, if any, of payment of dividends
on shares of that series;
(iii) 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;
(iv) whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion, including
provisions for adjustment of the conversion rate in such events as the
Board of Directors shall determine;
(v) whether or not the shares of that series shall be redeemable,
and if so, the terms and conditions of such redemption, including the
dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(vi) 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;
(vii) 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; and
(viii) any other relative powers, preferences, and rights of that
series, and qualifications, limitations or restrictions on that
series.
4.3.2. ADJUSTMENTS IN NUMBER OF SHARES AUTHORIZED
Except as provided to the contrary in the provisions establishing a
series of Preferred Stock, the number of shares of any such series may be
increased (but not above the total number of authorized shares of Preferred
Stock) or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the directors.
5. INCORPORATOR
The name and mailing address of the incorporator (the "Incorporator")
is Ann E. Flowers, Hogan & Hartson, 555 Thirteenth Street, NW, Washington,
DC 20004.
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6. BOARD OF DIRECTORS
6.1. NUMBER AND ELECTION
The number of directors of the corporation shall be such number as
from time to time shall be fixed by, or in the manner provided in, the Bylaws of
the corporation. The directors shall be divided into three classes, as nearly
equal in number as possible, to be designated as Class I, Class II and Class
III. The initial term of office of the Class I directors shall expire at the
annual meeting of stockholders to be held in 1994; the initial term of office of
the Class II directors shall expire at the annual meeting of stockholders to be
held in 1995; and the initial term of office of the Class III directors shall
expire at the annual meeting of stockholders to be held in 1996. At each annual
meeting of stockholders, 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.
6.2. INITIAL DIRECTORS
The powers of the Incorporator shall terminate upon the filing of this
Certificate of Incorporation, and the following persons, having the indicated
mailing address, shall serve as the directors of the Corporation until their
successor or successors are elected and qualify, as set forth in the
Section 6.1. above:
Name Mailing Address
- ---- ---------------
CLASS I DIRECTORS
Eric D. Becker One South Street, Suite 800
Baltimore, Maryland 21202
William E. O'Leary 1587 Sulphur Spring Road
Baltimore, Maryland 21227
CLASS II DIRECTORS
Merrick M. Elfman 111 North Canal Street, Suite 933
Chicago, Illinois 60606
Steven M. Taslitz 111 North Canal Street, Suite 933
Chicago, Illinois 60606
CLASS III DIRECTORS
Rudolph C. Hoehn-Saric 9135 Guilford Road
Columbia, Maryland 21046
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6.3. REMOVAL
(a) Except as otherwise provided pursuant to the provisions of this
Certificate of Incorporation or a certificate of designations relating to the
rights of the holders of any class or series of Preferred Stock, voting
separately by class or series, to elect directors under specified circumstances,
any director or directors may be removed from office at any time, but only for
cause (as defined in Section 6.3(b) hereof) and only by the affirmative vote, at
a special meeting of the stockholders called for such a purpose, of not less
than a majority of the total number of votes of the then outstanding shares of
stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, but only if notice of such
proposal was contained in the notice of such meeting. At least 30 days prior to
such special meeting of stockholders, written notice shall be sent to the
director or directors whose removal will be considered at such meeting. Any
vacancy in the Board of Directors resulting from any such removal or otherwise
shall be filled only by vote of a majority of the directors then in office,
although less than a quorum, and any director so chosen shall hold office until
the next election of the class for which such director shall have been chosen
and until such director's successor shall be elected and qualified or until any
such director's earlier death, resignation or removal.
(b) For the purposes of this Section 6.8, "cause" shall mean only (i)
conduct as a director of the Corporation or any subsidiary involving dishonest
of a material nature that relates to the performance of the director's duties as
a director of the Corporation or any subsidiary or (ii) criminal conduct (other
than minor infractions and traffic violations) that relates to the performance
of the director's duties as a director of the Corporation or any subsidiary.
6.4. CHANGE OF AUTHORIZED NUMBER
In the event of any increase or decrease in the authorized number of
directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
6.5. DIRECTORS ELECTED BY HOLDERS OF PREFERRED STOCK
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or a certificate of designations
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Section 6 unless expressly provided by the certificate
of designations.
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6.6. LIMITATION OF LIABILITY
No director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this provisions shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of loyalty to
the Corporation or its stockholders; (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (c) for
the types of liability set forth in Section 174 of the Delaware General
Corporation Law; or (d) for any transaction from which the director received any
improper personal benefit.
7. INDEMNIFICATION
To the extent permitted by law, the Corporation shall fully indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) by reason of the fact that such
person is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees and all related costs
and expenses of such threatened, pending or completed action, suit or
proceeding), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
To the extent permitted by law, the Corporation shall fully indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) by reason of the fact that such
person is or was an employee or agent of the Corporation, or is or was serving
at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees and all related costs
and expenses of such threatened, pending or completed action, suit or
proceeding), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
The Corporation shall advance expenses (including attorneys' fees and
all related costs and expenses of such threatened, pending or completed action,
suit or proceeding) incurred by a director or officer in advance of the final
disposition of such action, suit or proceeding upon the receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that such director or officer is not entitled
to indemnification. The Corporation may advance expenses (including attorneys'
fees and all related costs and expenses of such threatened, pending or completed
action, suit or proceeding) incurred by an employee or agent in advance of the
final disposition of such action, suit or proceeding upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
Notwithstanding anything in this Article to the contrary, the
Corporation will not have the obligation of indemnifying any person with respect
to proceedings, claims, suits or actions initiated or brought voluntarily by
such person and not by way of defense.
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8. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly authorized
and empowered to adopt, amend and repeal the Bylaws of the Corporation, subject
to the right of the stockholders entitled to vote with respect thereto to amend
or repeal Bylaws adopted by the Board of Directors as provided for in this
Certificate of Incorporation or in the Bylaws of the Corporation.
9. ACTION BY STOCKHOLDERS
Any action required or permitted to be taken by the stockholders of
the Corporation may be effected at a duly called annual or special meeting of
stockholders, and, except as provided below, may be effected without a meeting,
without prior notice and without a vote, by a consent in writing in accordance
with the Bylaws of the Corporation. At any time that a class of the equity
securities of the Corporation is registered pursuant to Section 12(g) or 15(d)
of the Securities Exchange Act of 1934, as amended, action shall be taken by the
stockholders only at a duly called annual or special meeting, and action without
a meeting shall be prohibited.
10. SPECIAL MEETINGS
Special meetings of the stockholders may be called at any time but
only by (a) the chairman of the board of the Corporation, (b) a majority of the
directors in office, although less than a quorum, or (c) the holders of not less
than 20% of the total number of votes of the then outstanding shares of stock of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class.
11. SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
The Corporation elects not to be governed by the provisions of Section
203 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned, being the Incorporator
hereinabove named, for the purpose of forming a corporation pursuant to the
Delaware General Corporation Law, hereby certifies that the facts hereinabove
stated are truly set forth, and accordingly executes this Certificate of
Incorporation this 13th day of September, 1993.
/s/ ANN E. FLOWERS
----------------------------------
Ann E. Flowers
Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Atlantic Beverage Company, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting duly
held, adopted a resolution proposing and declaring advisable the following
amendment to the Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of Atlantic Beverage
Company, Inc. be amended by changing Article I thereof so that, as amended,
said Article shall be and read as follows:
"The name of the corporation is Atlantic Premium Brands, Ltd."
SECOND: That the majority of the stockholders voted in favor of the
amendment at a meeting duly held.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Section 242 of the General Corporation Law of the
State of Delaware.
FOURTH: That this Certificate of Amendment of the Certificate of
Incorporation shall be effective on June 1, 1997.
IN WITNESS WHEREOF, said Atlantic Beverage Company, Inc. has caused this
certificate to be signed by Merrick M. Elfman, its Chairman of the Board of
Directors, and attested by Tom D. Wippman, its Secretary this 29th day of May
1997.
ATLANTIC BEVERAGE COMPANY, INC.
By: /S/ MERRICK M. ELFMAN
---------------------------
Merrick M. Elfman, Chairman
ATTEST:
By: /s/ TOM D. WIPPMAN
-------------------------
Tom D. Wippman, Secretary
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CERTIFICATE OF ELIMINATION
OF
ATLANTIC PREMIUM BRANDS, LTD.
(DELAWARE FILE NO. 2350747)
ATLANTIC PREMIUM BRANDS, LTD., a corporation organized and existing under
the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors by unanimous written consent of its
members, filed with the minutes of the Board, duly adopted resolutions setting
forth the proposed elimination of the Series A Non-Voting Convertible Preferred
Stock as set forth herein:
RESOLVED that no shares of the Series A Non-Voting Convertible Preferred
Stock are outstanding and none will be issued.
RESOLVED that a Certificate of Elimination be executed, which shall have
the effect when filed in Delaware of eliminating from the Certificate of
Incorporation all reference to the Series A Non-Voting Convertible
Preferred Stock.
SECOND: None of the authorized shares of the Series A Non-Voting
Convertible Preferred Stock are outstanding and none will be issued.
THIRD: In accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, the Certificate of Incorporation is
hereby amended to eliminate all reference to the Series A Non-Voting Convertible
Preferred Stock.
IN WITNESS WHEREOF, said ATLANTIC PREMIUM BRANDS, LTD. has caused this
Certificate of Elimination to be signed by Tom D. Wippman, its Secretary, this
Second day of April, 1998.
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ TOM D. WIPPMAN
-------------------------------------
Tom D. Wippman, its Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
Atlantic Premium Brands, Ltd. (the "Corporation), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation adopted a resolution
setting forth an amendment to the Corporation's Certificate of Incorporation
changing Article 4 so that, as amended, Article 4 shall read in its entirety as
set forth on Exhibit A, declaring its adoption advisable and directing that it
be considered at the next annual meeting of stockholders.
SECOND: That the holders of a majority of the outstanding stock entitled to
vote thereon, and the holders of a majority of the outstanding stock of each
class entitled to vote thereon as a class, voted in favor of the adoption of the
amendment set forth on Exhibit A at a meeting duly held.
THIRD: That the amendment set forth on Exhibit A was duly adopted and
approved in accordance with Section 242 of the General Corporation Law of the
State of Delaware.
FOURTH: That this Certificate of Amendment of the Certificate of
Incorporation shall be effective on May 31, 1999.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by Alan F. Sussna, its President and Chief Executive
Officer, as of May 20, 1999.
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ ALAN F. SUSSNA
-------------------------------------
Alan F. Sussna
President and Chief
Executive Officer
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EXHIBIT A
AMENDMENT TO CERTIFICATE OF INCORPORATION OF
ATLANTIC PREMIUM BRANDS, LTD.
Article 4 of the Certificate of Incorporation of Atlantic Premium Brands,
Ltd. is amended to read in its entirety as follows:
4. CAPITAL STOCK
4.1 AUTHORIZED SHARES
The total number of shares of all classes of stock that the
Corporation shall have the authority to issue is 35,000,000, of which
5,000,000 shares shall be Preferred Stock, having a par value of $.01 per share
("Preferred Stock"); 28,900,000 shares shall be Common Stock, having a par value
of $.01 per share ("Common Stock"), and 1,100,000 shares shall be Non-Voting
Common Stock, having a par value of $.01 per share ("Non-Voting Common Stock").
The Common Stock and the Non-Voting Common Stock are hereafter collectively
referred to as the "Common Securities." The Board of Directors is expressly
authorized to provide for the classification and reclassification of any
unissued shares of Preferred Stock or Common Stock and the issuance thereof in
one or more classes or series without the approval of the stockholders of
the Corporation.
4.2 COMMON STOCK
Except as otherwise provided herein, all shares of Common Stock and
Non-Voting Common Stock will be identical and will entitle the holders thereof
to the same rights and privileges.
4.2.1 RELATIVE RIGHTS
The Common Securities shall be subject to all of the rights,
privileges, preferences and priorities of the Preferred Stock as set forth in
the certificate of designations filed to establish the respective series of
Preferred Stock.
4.2.2 DIVIDENDS
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Securities as to the payment of dividends, the full amount of
dividends and of sinking fund or retirement payments, if any, to which such
holders are respectively entitled in preference to the Common Securities, then
dividends may be paid on the Common Securities and on any class or series
of stock entitled to participate therewith as to dividends, out of any assets
legally available for the payment of dividends thereon, but only when and
as declared by the Board of Directors of the Corporation.
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When and as dividends are declared thereon, whether payable in cash, property or
securities of the Company, the holders of Common Stock and the holders of
Non-Voting Common Stock will be entitled to share equally, share for share, in
such dividends; provided that if dividends are declared which are payable in
shares of Common Stock or Non-Voting Common Stock, dividends will be declared
which are payable at the same rate on both classes of stock, and the dividends
payable in shares of Common Stock will be payable to holders of Common Stock and
the dividends payable in shares of Non-Voting Common Stock will be payable to
holders of Non-Voting Common Stock.
4.2.3 DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common
Securities shall become entitled to participate in the distribution of any
assets of the Corporation remaining after the Corporation shall have paid, or
set aside for payment, to the holders of any class of stock having preference
over the Common Securities in the event of dissolution, liquidation or winding
up the full preferential amounts (if any) to which they are entitled.
4.2.4 VOTING RIGHTS
Except as otherwise required by law, the holders of Common Stock will
be entitled to one vote per share on all matters to be voted on by the Company's
stockholders, and the holders of Non-Voting Common Stock will have no right to
vote on any matters to be voted on by the Company's stockholders.
4.2.5 CONVERSION
(i) Conversion of Non-Voting Common Stock. Each record holder
of Non-Voting Common Stock is entitled to convert any or all of the
shares of such holder's Non-Voting Common Stock into the same number
of shares of Common Stock to the extent that the holder:
(A) sells such Common Stock pursuant to registration
statement under the Securities Act, provided that such offering
is underwritten on a firm commitment basis or otherwise provides
for a widely dispersed distribution of the shares;
(B) sells such Common Stock in a private placement pursuant
to Rule 144 or Rule 144A promulgated under the Securities Act of
1933, as amended, provided that no purchaser or related group of
purchasers acquires more than 2% of the outstanding shares of
Common Stock.
(C) sells such Common Stock as part of a direct sale,
together with other shareholders of the Company, to a third party
that is not related to or affiliated with the holder, provided
that pursuant to such sale the
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purchaser acquires at least a majority of the outstanding
Common Stock without regard to any shares purchased from the
holder; or
(D) does not own or have the right to acquire more than 4.9%
of the Common Stock that would be outstanding after such
conversion.
(ii) Conversion Procedure.
(A) Each conversion of shares of Non-Voting Common Stock
into shares of Common Stock will be effected by the surrender of
the certificate or certificates, if any, representing the shares
to be converted at the principal office of the Company at any
time during normal business hours, together with a written notice
by the holder of such Non-Voting Common Stock stating that such
holder desires to convert the shares, or a stated number of the
shares, of Non-Voting Common Stock represented by such
certificate or certificates into Common Stock and that the
conversion complies with the provisions of Section 4.2.5(i) of
the Corporation's Certificate of Incorporation. Such conversion
will be deemed to have been effected as of the close of business
on the date on which such certificate or certificates, if any,
have been surrendered and such notice has been received, and at
such time the rights of the holder of the converted Non-Voting
Common Stock as such holder will cease and the person or persons
in whose name or names the certificate or certificates for shares
of Common Stock are to be issued upon such conversion will be
deemed to have become the holder or holders of record of the
shares of Common Stock represented thereby.
(B) Promptly after such surrender and the receipt of such
written notice, the Company will issue and deliver in accordance
with the surrendering holder's instructions (a) the certificate
or certificates for the Common Stock issuable upon such
conversion and (b) a certificate representing any Non-Voting
Common Stock which was represented by the certificate or
certificates, if any, delivered to the Company in connection with
such conversion but which are not converted.
(C) If the Company in any manner subdivides or combines the
outstanding shares of one class of Common Securities, the
outstanding shares of the other class of Common Securities will
be proportionately subdivided or combined.
(D) The issuance of certificates for Common Stock upon
conversion of Non-Voting Common Stock will be made without charge
to the holders of such shares for any issuance tax in respect
thereof or other cost incurred by the Company in connection with
such conversion and the related issuance of Common Stock.
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(E) The Company will not close its books against the
transfer of Non-Voting Common Stock or of Common Stock issued or
issuable upon conversion of Non-Voting Common Stock in any manner
which would interfere with the timely conversion of Non-Voting
Common Stock.
4.3 PREFERRED STOCK
4.3.1 ESTABLISHMENT OF SERIES
The Board of Directors is expressly authorized, subject to limitations
prescribed by the Delaware General Corporation Law and the provisions of this
Certificate of Incorporation, to provide, by resolution and by filing a
certificate of designations pursuant to the Delaware General Corporation Law,
for the issuance of the shares of Preferred Stock in series, to establish from
time to time the number of shares to be included in each such series, and to fix
the designation, powers, preferences and other rights of the shares of each such
series and to fix the qualifications, limitations and restrictions thereon. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
(i) the number of shares constituting that series and the
distinctive designation of that series;
(ii) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and the relative rights of priority, if any, of payment of dividends
on shares of that series;
(iii) 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;
(iv) whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion, including
provisions for adjustment of the conversion rate in such events as the
Board of Directors shall determine;
(v) whether or not the shares of that series shall be
redeemable, and if so, the terms and conditions of such redemption,
including the dates upon or after which they shall be redeemable, and
the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates;
(vi) 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;
(vii) 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; and
(viii) any other relative powers, preferences, and rights of that
series, and qualifications, limitations or restrictions on that
series.
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4.3.2 ADJUSTMENTS IN NUMBER OF SHARES AUTHORIZED
Except as provided to the contrary in the provisions establishing a
series of Preferred Stock, the number of shares of any such series may be
increased (but not above the total number of authorized shares of Preferred
Stock) or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the directors.