Exhibit 3(a)
RESTATED CERTIFICATE OF INCORPORATION
OF
NATIONAL SERVICE INDUSTRIES, INC.
This Restated Certificate of Incorporation of National Service Industries,
Inc. (the "Corporation") was duly approved by the Board of Directors of the
Corporation and only restates and integrates but does not further amend the
provisions of the Corporation's Restated Certificate of Incorporation as
theretofore amended or supplemented; and there is no discrepancy between these
amended and supplemented provisions and the provisions of the Restated
Certificate of Incorporation set forth below except as permitted by Section 245
of the General Corporation Law. The Corporation was incorporated under the name
National Linen Service Corporation. The original Certificate of Incorporation of
the Corporation was filed with the Secretary of State of the State of Delaware
on August 20, 1928.
FIRST:
The name of the Corporation is and shall be
NATIONAL SERVICE INDUSTRIES, INC.
SECOND:
The registered office of the Corporation in the State of Delaware is and
shall be located at 2711 Centerville Road, Suite 400, Wilmington, New Castle
County, Delaware 19808. The Corporation's registered agent at that location is
Corporation Service Company.
THIRD:
The nature of the business, or objects, or purposes to be transacted,
promoted, or carried on, are:
To operate at wholesale or retail a linen supply and to provide the
rental service for users of towels, aprons, jackets, overalls, sheets,
napkins, table cloths, and linens of all kind; to carry on the business of
a steam and general laundry for the purpose of washing, cleaning,
purifying, scouring, bleaching, wringing, drying, ironing, dyeing,
coloring, disinfecting, renovating, and preparing for use linens of all
kinds and other articles to be rented to users; to buy, sell, hire,
manufacture, repair, let, alter, improve, treat, and deal in all
apparatus, machines, materials, and articles of all kinds which are
capable of being used for any such purpose.
To manufacture, purchase, or otherwise acquire, own, mortgage,
pledge, sell, assign, and transfer, or otherwise dispose of, and to
invest, trade, deal in, and deal with, goods, wares and merchandise, and
real and personal property of every class and description.
To acquire, and pay for in cash, stocks, or bonds of the
Corporation, or otherwise, the good-will, rights, assets, and property,
and to undertake to assume the whole or any part of the obligations or
liabilities of any person, firm, association, or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in
respect of, mortgage, or otherwise dispose of letters patent of the United
States or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and trade
names, relating to or useful in connection with any business of the
Corporation.
To guarantee, purchase, hold, sell, assign, transfer, mortgage,
pledge, or otherwise dispose of shares of the capital stock of, or any
bonds, securities, or evidence of indebtedness created by, any other
corporation or corporations organized under the laws of this state or any
other state, country, nation, or government, and while the owner thereof
to exercise all the rights, powers, and privileges of ownership.
To issue bonds, debentures, or obligations of the Corporation, from
time to time, for any of the objects or purposes of the Corporation, and
to secure the same by mortgage, pledge, deed of trust, or otherwise.
To purchase, hold, sell, and transfer the shares of its own capital
stock; provided it shall not use its funds or property for the purchase of
its own shares of capital stock when such use would cause any impairment
of its capital; and provided further that shares of its own capital stock
belonging to it shall not be voted upon, directly or indirectly.
To have one or more offices, to carry on all or any of its
operations and business without restriction or limit as to amount, and to
purchase or otherwise acquire, hold, own, mortgage, sell, convey, or
otherwise dispose of real and personal property of every class and
description in any of the States, Districts, Territories, or Colonies of
the United States and in any and all foreign countries, subject to the
laws of such State, District, Territory, Colony, or Country.
In general, to carry on any other business in connection with the
foregoing, whether manufacturing or otherwise, and to have and exercise
all the powers conferred by the laws of Delaware upon corporations formed
under the act hereinafter referred to, and to do any or all of the things
hereinbefore set forth to the same extent as natural persons might or
could do.
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To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
The foregoing clauses shall be construed both as objects and powers; and
it is hereby expressly provided that the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the powers of the
Corporation.
FOURTH:
(A) The total number of shares of stock which the Corporation shall have
authority to issue is 121,000,000.
(B) Of such stock, 120,000,000 shares shall be Common Stock of the par
value of $1.00 each, amounting in the aggregate to $120,000,000.
(C) Of such stock, 1,000,000 shares shall be No Par Preferred Stock which
may be issued from time to time, by the Board of Directors, in one or more
series. All shares of a series shall be of equal rank and shall be identical,
but the shares of different series need not be of equal rank and need not be
identical. The Board of Directors hereby is authorized to cause shares of Serial
Preferred Stock to be issued in one or more series and with respect to each such
series prior to issuance to fix:
(1) Voting rights.
(2) The designation of the series, which may be distinguished by
number, letter, or title.
(3) The number of shares, which number the Board of Directors may
increase or decrease.
(4) The annual dividend rate.
(5) The dates at which dividends, if declared, shall be payable, and
the date from which such dividends shall be cumulative, if at all.
(6) The terms and amount of the sinking fund, if any, provided for the
purchase or redemption of shares.
(7) The redemption rights and price or prices, if any, for shares.
(8) The amounts payable and priorities of shares in the event of any
voluntary or involuntary liquidation, dissolution, or winding up of the
affairs of the Corporation.
(9) The number of shares of Common Stock into which such Preferred
Stock
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is convertible, if any, the conversion price or prices, and all other
terms and conditions upon which such conversion may be made, if at all.
Designation, Preferences, and Rights of Series A Participating Preferred Stock
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock," which shall have a
stated value of $0.05 per share, and the number of shares constituting such
series shall be 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 Participating Preferred Stock to a number less
than that of the shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series A Participating Preferred Stock with respect to dividends, the holders of
shares of Series A Participating Preferred Stock in preference to the holders of
shares of Common Stock, par value $1.00 per share (the "Common Stock"), of the
Corporation and any other junior stock, shall be entitled to receive, when, as
and if declared by the Board of Directors out of finds legally available for the
purpose, quarterly dividends payable in cash on the first day of October,
January, April and July 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 Participating Preferred Stock in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $10.00, or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 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 Participating
Preferred Stock. In the event the Corporation shall at any time after May 1,
1988 (the "Rights Declaration Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the amount to which holders of shares of Series A
Participating 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.
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(B) The Corporation shall declare a dividend or distribution on the Series
A Participating Preferred Stock as provided in paragraph (A) above 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 $10.00 per share on the Series A
Participating 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 Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Participating Preferred Stock 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 Participating 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 Participating 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 Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Participating Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote of the shareholders of the
Corporation; provided, however, that with regard to any election for the
Corporation's Board of Directors (except as provided for in paragraph (C) of
this Section 3), the maximum number of votes for the election of directors
exercised by shares of Preferred Stock (including the Series A Participating
Preferred Stock) shall not exceed the number of votes for the election of
directors represented by authorized and issued shares of Common Stock entitled
to vote less one, and the number of votes for the election of directors
exercised by shares of Preferred Stock (including the Series A Participating
Preferred Stock) shall be reduced as necessary on a pro-rata basis to effectuate
this result.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as
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one class on all matters submitted to a vote of shareholders of the Corporation.
(C) (i) If at any time dividends on any Series A Participating
Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall
mark the beginning of a period (herein called a "default period") which
shall extend until such time when all accrued and unpaid dividends for
all previous quarterly dividend periods and for the current quarterly
dividend period on all shares of Series A Participating Preferred Stock
then outstanding shall have been declared and paid or set apart for
payment. During each default period, all holders of Preferred Stock
(including holders of the Series A Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall have the
right to elect two (2) Directors.
(ii) During any default period, such voting right of the
holders of Series A Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of
this Section 3(C) or at any annual meeting of shareholders, and
thereafter at annual meetings of shareholders, provided that neither
such voting right nor the right of the holders of any other series of
Preferred Stock, if, any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the holders of ten
percent (10%) in number of shares of Preferred Stock outstanding shall
be present in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the holders of
Preferred Stock of such voting right. At any meeting at which the
holders of Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the right, voting as
a class, to elect Directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two (2) Directors or, if
such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting
does not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of the
required number. After the holders of the Preferred Stock shall have
exercised their right to elect Directors in any default period and
during the continuance of such period, the number of Directors shall
not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A
Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any shareholder or
shareholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of a special meeting of the holders
of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice-President or the
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Corporate Secretary of the Corporation. Notice of such meeting and of
any annual meeting at which holders of Preferred Stock are entitled to
vote pursuant to this paragraph (C)(iii) shall be given to each holder
of record of Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Corporation.
Such meeting shall be called for a time not earlier than 10 days and
not later than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the
shareholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue
to be entitled to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to elect two (2)
Directors voting as a class, after the exercise of which right (x) the
Directors so elected by the holders of Preferred Stock shall continue
in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y) any
vacancy in the Board of Directors may (except as provided in paragraph
(C)(ii) of this Section 3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have become vacant.
References in this paragraph (C) to Directors elected by the holders of
a particular class of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing
sentence.
(v) In any default period, the total number of Directors on
the Board of Directors shall not be less than five (5) Directors.
(vi) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the
number of Directors shall be such number as may be provided for in, or
pursuant to, the Restated Certificate of Incorporation or By-Laws
irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject, however
to change thereafter in any manner provided by law or in the Restated
Certificate of Incorporation or By-Laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining
Directors, even though less than a quorum.
(D) Except as set forth herein, holders of Series A Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are
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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 Participating 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 Participating
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred Stock;
(ii) declare or pay dividends on 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 Participating
Preferred Stock except dividends paid ratably on the Series A
Participating 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 on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in exchange
for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series A
Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Participating Preferred Stock or any shares of stock ranking on a
parity with the Series A Participating 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
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time and in such manner.
Section 5. Conversion Rights.
(A) Subject to the provision for adjustment hereinafter set forth, each
one one-thousandth of a share of Series A Participating Preferred Stock shall,
for a period of 90 days after issuance, be convertible at the option of the
respective holders thereof, at the office of the Corporation and at such other
place or places, if any, as the Board of Directors may determine, without the
payment of further consideration, into one (1) share of Common Stock of the
Corporation.
(B) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the one (1) share of Common Stock into which each one one-thousandth of a share
of Series A Participating Preferred Stock shall be convertible shall be adjusted
by multiplying such share 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.
(C) At such times as the conversion rights are exercised for Series A
Participating Preferred Stock, the Corporation shall, to the extent that
unreserved authorized and unissued or treasury shares of Common Stock are
available, reserve sufficient shares of Common Stock to permit the conversion of
such Series A Participating Preferred Stock into Common Stock. In the event that
sufficient unreserved authorized and unissued or treasury shares of Common Stock
are not available to permit such reservation and conversion, the Corporation
shall use reasonable efforts to obtain shareholder approval of an increase in
the number of authorized shares of Common Stock to permit the aforementioned
reservation and conversion of Series A Participating Preferred Stock into Common
Stock.
Section 6. Reacquired Shares. Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled 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 to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 7. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or winding
up of the Corporation, no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior thereto,
the holders of shares of Series A Participating Preferred
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Stock shall have received, per share, the greater of 1,000 times the exercise
price per Right or 1,000 times the payment made per share of Common Stock, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series A Participating Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth in
subparagraph (C) below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock) (such number in clause
(ii), the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Participating Preferred Stock and Common Stock,
respectively, holders of Series A Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of the Adjustment Number to
1 with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any, which rank on a
parity with the Series A Participating Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are
not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment 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.
Section 8. 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 the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 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
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Common Stock is changed or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
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 Participating 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 are outstanding immediately prior to such event.
Section 9. Redemption. The shares of Series A Participating Preferred
Stock shall not be redeemable.
Section 10. Ranking. The Series A Participating Preferred Stock shall
rank junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 11. Amendment. The Restated Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds (66-2/3%) of the
outstanding shares of Series A Participating Preferred Stock voting separately
as a class.
Section 12. Fractional Shares. Series A Participating Preferred Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Participating Preferred Stock.
FIFTH:
The amount of capital with which the Corporation will commence business is
ten (10) shares of common stock which shares are without nominal or par value.
SIXTH:
The Corporation is to have perpetual existence.
SEVENTH:
The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
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EIGHTH:
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
To make and alter the by-laws of the Corporation, to fix the amount
to be reserved as working capital over and above its capital stock paid
in, to authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
From time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the Corporation, (other than the stock ledger) or
any of them, shall be open to inspection of stockholders; and no
stockholder shall have any right of inspecting any account, book, or
document of the Corporation except as conferred by statute, unless
authorized by a resolution of the stockholders or Directors.
By resolution or resolutions, passed by a majority of the whole
Board, to designate one or more committees, each committee to consist of
two or more of the Directors of the Corporation, which, to the extent
provided in said resolution or resolutions or in the by-laws of the
Corporation, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may have power to authorize the seal of the Corporation
to be affixed to all papers which may require it. Such Committee or
Committees shall have such name or names as may be stated in the by-laws
of the Corporation or as may be determined from time to time by resolution
adopted by the Board of Directors.
Pursuant to the affirmative vote of the holders of at least a
majority of the stock issued and outstanding, having voting power, given
at a stockholders' meeting duly called for that purpose, the Board of
Directors shall have power and authority at any meeting to sell, lease, or
exchange all of the property and assets of the Corporation, including its
good will and its corporate franchises, upon such terms and conditions as
its Board of Directors deem expedient and for the best interest of the
Corporation.
The Corporation may in its by-laws confer powers upon its Directors in
addition to the foregoing, and in addition to the powers and authorities
expressly conferred upon them by statute. Both stockholders and Directors shall
have power, if the by-laws so provide, to hold their meetings, and to have one
or more offices within or without the State of Delaware, and to keep the books
of the Corporation (subject to the provisions of the statutes) outside of the
State of Delaware, at such places as may be, from time to time, designated by
the Board of Directors. Except as otherwise provided in this Restated
Certificate of Incorporation, no action may be taken by the stockholders,
including, without limitation, amendment of this Restated Certificate or of the
by-laws, except at a meeting duly called in accordance with the by-laws.
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NINTH:
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Certificate of Incorporation, in any manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
TENTH:
This Restated Certificate of Incorporation only restates and integrates
but does not further amend the provisions of the Corporation's Restated
Certificate of Incorporation, as heretofore amended, and there are no
discrepancies between the provisions of the Certificate of Incorporation as
heretofore amended and the provisions hereof:
ELEVENTH:
This Restated Certificate of Incorporation was duly adopted by the Board
of Directors of the Corporation on October 16, 2001, pursuant to the provisions
of Chapter I, Subchapter VIII, Section 245, of the General Corporation Law of
Delaware, as amended.
TWELFTH:
(A) In addition to any approval of the Board of Directors or any
stockholder vote or consent required by the laws of the State of Delaware or any
other provision of this Restated Certificate of Incorporation or otherwise, the
affirmative vote or consent of the holders of two-thirds of the shares of the
stock of the Corporation entitled to vote in elections of directors shall be
required to authorize, adopt, or approve a Covered Transaction; however, the
provisions of this Article Twelfth shall not apply to any Covered Transaction
referred to in this Article Twelfth with any Interested Person if (1) the Board
of Directors of the Corporation has approved a memorandum of understanding with
such other Interested Person with respect to such transaction prior to the time
that such Interested Person shall have become a beneficial owner of five percent
(5%) or more of the shares of stock entitled to vote in elections of directors,
or thereafter (2) if such Covered Transaction is otherwise approved by the Board
of Directors of the Corporation, provided that a majority of the members of the
Board of Directors voting for the approval of such transaction were duly elected
and acting members of the Board of Directors prior to the time that such
Interested Person shall have become a beneficial owner of five percent (5%) or
more of the shares of stock of the Corporation entitled to vote in elections of
directors.
(B) For the purposes of this Article Twelfth:
(1) "Affiliate" and "associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, as in effect on November
1, 1977.
(2) A person shall be the "beneficial owner" and "beneficially owns"
shares of
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stock of the Corporation (other than shares of the Corporation's stock
held in its treasury) (a) which such person and its affiliates and
associates beneficially own, directly or indirectly, whether of record or
not, (b) which such person or any of its affiliates or associates has the
right to acquire, pursuant to any agreement upon the exercise of
conversion rights, warrants or options, or otherwise, (c) which such
person or any of its affiliates or associates has the right to sell or
vote pursuant to any agreement, or (d) which are beneficially owned,
directly or indirectly, by any other person with which such first
mentioned person or any of its affiliates or associates has any agreement,
arrangement, or understanding for the purposes of acquiring, holding,
voting, or disposing of securities of the Corporation.
(3) "Covered Transaction" is
(a) any merger or consolidation of the Corporation or any
subsidiary of the Corporation with or into any Interested Person
(regardless of the identity of the surviving corporation);
(b) any sale, lease, or other disposition of all or any
substantial part of the assets of the Corporation or any subsidiary
of the Corporation to any Interested Person for cash or securities
or both;
(c) any issuance or delivery of securities of the Corporation
or a subsidiary of the Corporation (which the beneficial owner shall
have the right to vote, or to vote upon exercise, conversion, or by
contract) to an Interested Person in consideration for or in
exchange of any securities or other property (including cash); or
(d) the liquidation of the Corporation.
(4) "Interested Person" is any person which, as of the record date
for the determination of stockholders entitled to notice of any Covered
Transaction and to vote thereon or consent thereon, or as of the date of
any such vote or consent, or immediately prior to the consummation of any
Covered Transaction, beneficially owns, directly or indirectly, five
percent (5%) or more of the shares of stock of the Corporation entitled to
vote in elections of directors.
(5) "Person" is any individual, partnership, or corporation or other
entity.
(6) "Subsidiary of the Corporation" is any corporation of which
fifty percent (50%) or more of any class of stock is beneficially owned,
directly or indirectly, by the Corporation.
(C) No amendment to this Restated Certificate of Incorporation shall
amend, alter,
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change, or repeal any of the provisions of this Article Twelfth unless such
amendment, in addition to receiving any stockholder vote or consent required by
the laws of the State of Delaware in effect at the time, shall receive the
affirmative vote or consent of the holders of two-thirds of the shares of stock
of the Corporation entitled to vote in elections of directors.
THIRTEENTH:
(A) In addition to any approval of the Board of Directors or any
stockholder vote or consent required by the laws of the State of Delaware or any
other provision of this Restated Certificate of Incorporation or otherwise,
there shall be required for the approval, adoption, or authorization of a
Business Combination with an Interested Person the affirmative vote or consent
of the holders of a majority of the shares of stock of the Corporation entitled
to vote in elections of directors considered separately for the purposes of this
Article Thirteenth, which are not beneficially owned, directly or indirectly, by
such Interested Person; provided, however, that said majority voting
requirements shall not be applicable if all of the conditions specified in
subparagraphs (1) and (2) below are met or if all of the conditions specified in
subparagraph (3) are met:
(1) The consideration to be received per share in such Business
Combination by holders of the stock of the Corporation is payable in cash
or Acceptable Securities, or a combination of both, and the Acceptable
Securities (plus the cash, if any) have a fair market value per share of
the Corporation's stock of not less than either:
(a) the highest price (including the highest per share
brokerage commissions, transfer tax, and soliciting dealers fees)
paid by said Interested Person in acquiring any of the Corporation's
stock; or
(b) a price per share obtained by multiplying the aggregate
earnings per share of stock of the Corporation (appropriately
adjusted for any subdivision of shares, stock dividend, or
combination of shares during the period) for the four full
consecutive fiscal quarters immediately preceding the record date
for solicitation of votes or consents on such Business Combination
by the figure obtained by dividing the highest per share price
(including the highest per share brokerage commissions, transfer
tax, and soliciting dealers fees) paid by such Interested Person
acquiring any of the Corporation's stock by the aggregate earnings
per share of the Corporation for the four full consecutive fiscal
quarters immediately preceding the time when the Interested Person
shall have become the beneficial owner of five percent (5%) or more
of the stock of the Corporation entitled to vote in elections of
directors.
If any securities were issued by an Interested Person in exchange
for stock of the Corporation prior to the proposed Business Combination,
the fair market value of said securities at the time of issue shall be
used in determining the per share price paid for said
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stock.
(2) After the Interested Person has become the beneficial owner of
five percent (5%) or more of the stock of the Corporation entitled to vote
in the election of directors and prior to the consummation of such
Business Combination, there shall have been no reduction in the rate of
dividends payable on the Corporation's stock which would result in a
quarterly dividend rate per share which is less than the average quarterly
dividend rate per share for the four full consecutive fiscal quarters
immediately preceding the time when the Interested Person shall have
become the beneficial owner of five percent (5%) or more of the stock of
the Corporation unless such reduction in the rate of dividends has been
approved by the Board of Directors of the Corporation and a majority of
the members of the Board of Directors approving such reduction were duly
elected and acting members of the Board of Directors prior to the time
that such Interested Person shall have become a beneficial owner of five
percent (5%) or more of the shares of the Corporation. For the purposes of
this paragraph, "quarterly dividend rate per share" for any quarterly
dividend shall be equal to the percentage said quarterly dividend per
share bears to the earnings per share for the four full fiscal quarters
immediately preceding the declaration of said quarterly dividend.
(3) The Board of Directors of the Corporation has approved a
memorandum of understanding with such other Interested Person with respect
to such Business Combination prior to the time that such Interested Person
shall have become a beneficial owner of five percent (5%) or more of the
shares of stock entitled to vote in elections of directors, or thereafter
if such Business Combination is otherwise approved by the Board of
Directors of the Corporation, provided that a majority of the members of
the Board of Directors voting for the approval of such transaction were
duly elected and acting members of the Board of Directors prior to the
time that such Interested Person shall have become a beneficial owner of
five percent (5%) or more of the shares of stock of the Corporation
entitled to vote in elections of directors.
(B) For the purposes of this Article Thirteenth:
(1) "Affiliate" and "associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, as in effect on November
1, 1977.
(2) A person shall be the "beneficial owner" and "beneficially owns"
shares of stock of the Corporation (other than shares of the Corporation's
stock held in its treasury) (a) which such person and its affiliates and
associates beneficially own, directly or indirectly, whether of record or
not, (b) which such person or any of its affiliates or associates has the
right to acquire, pursuant to any agreement upon the exercise of
conversion rights, warrants, or options, or otherwise, (c) which such
person or any of its
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affiliates or associates has the right to sell or vote pursuant to any
agreement, or (d) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or any of its
affiliates or associates has any agreement, arrangement, or understanding
for the purpose of acquiring, holding, voting, or disposing of securities
of the Corporation.
(3) "Business Combination" is
(a) any merger or consolidation of the Corporation or any
subsidiary of the Corporation with or into any Interested Person
(regardless of the identity of the surviving corporation);
(b) any sale, lease, or other disposition of all or any
substantial part of the assets of the Corporation or any subsidiary
of the Corporation to any Interested Person for cash or securities
or both;
(c) any issuance or delivery of securities of the Corporation
or a subsidiary of the Corporation (which the beneficial owner shall
have the right to vote, or to vote upon exercise, conversion, or by
contract) to an Interested Person in consideration for or in
exchange of any securities or other property (including cash);
(4) "Acceptable Securities" shall mean (a) securities of the same
class or series, with the same rights, powers, and benefits and of the
same denomination, term, and interest, or dividend, if any, as the
securities issued and delivered by the Interested Person in exchange for
the majority of the stock of the Corporation acquired by the Interested
Person or (b) the class of common stock of the Interested Person which is
beneficially owned by the most persons.
(5) "Interested Person" is any person which, as of the record date
for the determination of stockholders entitled to notice of any Business
Combination and to vote thereon or consent thereto, or as of the date of
any such vote or consent, or immediately prior to the consummation of any
Business Combination, beneficially owns, directly or indirectly, five
percent (5%) or more of the shares of stock of the Corporation entitled to
vote in elections of directors.
(6) "Person" is an individual, partnership, corporation, or other
entity.
(7) "Subsidiary of the Corporation" is any corporation of which
fifty percent (50%) or more of any class of stock is beneficially owned,
directly or indirectly, by the Corporation.
(C) No amendment to this Restated Certificate of Incorporation shall
amend, alter,
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change, or repeal any of the provisions of this Article Thirteenth unless such
amendment, in addition to receiving any stockholder vote or consent required by
the laws of the State of Delaware in effect at the time, shall receive the
affirmative vote or consent of the holders of a majority of the shares of stock
of the Corporation entitled to vote in elections of directors which are not
beneficially owned, directly or indirectly, by any person which would be an
Interested Person if the vote or consent on such amendment were a vote or
consent on a Business Combination.
FOURTEENTH:
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 liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this Article to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
FIFTEENTH:
(A) Each person who was or is made a party to or is threatened to be made
a party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee, or
agent of another corporation or of a partnership, joint venture, trust, or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee, or agent or in any other capacity while serving as
a director, officer, employee, or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability, and loss (including attorneys' fees, judgments, fees, ERISA excise
taxes, or penalties and amounts to be paid in settlement) reasonably incurred or
suffered by such person in
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connection therewith, and such indemnification shall continue as to a person who
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of his or her heirs, executors, and administrators; provided, however,
that except as provided in paragraph (B) hereof with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article or otherwise. The
right to indemnification conferred in this Article shall arise only with respect
to conduct subsequent to the date this Article becomes effective.
(B) If a claim under paragraph (A) of this Article is not paid in full by
the Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for expenses incurred in defending a
proceeding in advance of its final disposition, in which case the applicable
period shall be twenty days, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall also be entitled to be paid
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(C) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of
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the Restated Certificate of Incorporation, by-law, agreement, vote of
stockholders, or disinterested directors, or otherwise.
(D) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee, or agent of the Corporation or
another corporation, Partnership, joint venture, trust, or other enterprise
against any expense, liability, or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability, or loss
under the Delaware General Corporation Law.
(E) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to be paid by the
Corporation the expenses incurred in defending any proceeding in advance of its
final disposition, to any employee or agent of the Corporation to the fullest
extent of the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which
restates, integrates but does not further amend the provisions of the
Corporation's Restated Certificate of Incorporation, as theretofore amended or
supplemented, having been duly adopted by the Board of Directors of the
Corporation in accordance with the provisions of Section 245 of the General
Corporation Law of the State Of Delaware, has been executed this 16th day of
October, 2001.
NATIONAL SERVICE INDUSTRIES, INC.
By: /s/ James S. Balloun
----------------------------------------
Name: James S. Balloun
Title: Chairman of the Board, President and
Chief Executive Officer
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