EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ABM INDUSTRIES INCORPORATED
A Delaware Corporation
ABM Industries Incorporated, a corporation organized and
existing under the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: The name of the Corporation is ABM Industries
Incorporated and the name under which the Corporation was originally
incorporated was American Building Maintenance Industries, Inc. The
Corporation's original Certificate of Incorporation was filed with the Secretary
of State of Delaware on March 19, 1985.
SECOND: The Restated Certificate of Incorporation of ABM
Industries Incorporated in the form attached hereto as Exhibit A restates and
integrates but does not further amend the Certificate of Incorporation of ABM
Industries Incorporated, and there is no discrepancy between the provisions of
the Corporation's Certificate of Incorporation as heretofore amended or
supplemented and the provisions of the Restated Certificate of Incorporation
attached hereto, which has been duly adopted in accordance with the provisions
of Sections 141(f) and 245 of the General Corporation Law of the State of
Delaware by unanimous written consent of the board directors of the Corporation
on October 28, 2003.
THIRD: The Restated Certificate of Incorporation so adopted
reads in full as set forth in Exhibit A attached hereto and incorporated herein
by this reference.
IN WITNESS WHEREOF, we have hereunto set our hands as
President and Chief Executive Officer and Secretary, respectively, of ABM
Industries Incorporated and hereby affirm under penalties of perjury that the
foregoing is our act and deed and the facts herein stated are true, and
accordingly have hereunto set forth our hands this 25th day of November, 2003.
/s/ Henrik C. Slipsager
----------------------------------------
Henrik C. Slipsager
President and Chief Executive Officer
ATTEST: /s/ Linda S. Auwers
--------------------------------------
Linda S. Auwers, Secretary
EXHIBIT 3.1
Exhibit A
RESTATED CERTIFICATE OF INCORPORATION
OF
ABM INDUSTRIES INCORPORATED
FIRST: The name of this corporation is: ABM Industries Incorporated.
SECOND: The address of the registered office of the corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, and the name of its registered agent at
that address is The Corporation Trust Company.
THIRD: (omitted)
FOURTH: 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 Delaware.
FIFTH: (a) The corporation is authorized to issue two classes of shares
to be designated, respectively, "Preferred Stock" and "Common Stock." The number
of shares of Preferred Stock authorized to be issued is Five Hundred Thousand
(500,000) and the number of shares of Common Stock authorized to be issued is
One Hundred Million (100,000,000). The stock, whether Preferred Stock or Common
Stock, shall have a par value of $0.01 per share.
(b) The shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors is authorized, by filing a
certificate pursuant to the applicable law of the State of Delaware, 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 rights of the shares
of each such series and the qualifications, limitations or restrictions thereof,
including but not limited to the fixing or alteration of the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preferences of any wholly unissued series of shares of Preferred
Stock; and to increase or decrease the number of shares of any series subsequent
to the issue of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any series shall
be so decreased, the shares constituting such decrease shall resume the status
which they had prior to the adoption of the resolution originally fixing the
number of shares of such series.
A Certificate of Designation heretofore adopted is attached as
Attachment 1.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind from time to time any or all of the by-laws of the
corporation; including by-law amendments increasing or reducing the authorized
number of directors. In addition, new by-laws may be adopted or the by-laws may
be amended or repealed by a vote of not less than seventy percent (70%) of the
outstanding stock of the corporation entitled to vote thereon.
EXHIBIT 3.1
SEVENTH: (a) The number of directors which shall constitute the whole
Board of Directors of this corporation shall be as specified in the by-laws of
this corporation, subject to the provisions of Article SIXTH hereof and this
Article SEVENTH.
(b) The Board of Directors shall be and is divided into three classes:
Class I, Class II and Class III, which shall be as nearly equal in number as
possible. Each director shall serve for a term ending on the date of the third
annual meeting of stockholders following the annual meeting at which the
director was elected; provided, however, that each initial director in Class I
shall hold office until the annual meeting of stockholders in 1986; each initial
director in Class II shall hold office until the annual meeting of stockholders
in 1987; and each initial director in Class III shall hold office until the
annual meeting of stockholders in 1988. Notwithstanding the foregoing provisions
of this Article, each director shall serve until his successor is duly elected
and qualified or until his death, resignation or removal.
(c) In the event of any increase or decrease in the authorized number
of directors, (1) each director then serving as such shall nevertheless continue
as a director of the class of which he is a member until the expiration of his
current term, or his earlier resignation, removal from office or death, and (2)
the newly created or eliminated directorship 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.
EIGHTH: No action shall be taken by the stockholders except at an
annual or special meeting of stockholders. No action shall be taken by
stockholders by written consent.
NINTH: Special meetings of the stockholders of this corporation for any
purpose or purposes may be called at any time by the Board of Directors, or by a
committee of the Board of Directors which has been duly designated by the Board
of Directors and whose powers and authority, as provided in a resolution of the
Board of Directors or in the by-laws of this corporation, include the power to
call such meetings, but such special meetings may not be called by any other
person or persons.
TENTH: 1. The affirmative vote of the holders of not less than seventy
percent (70% ) of the outstanding shares of "Voting Stock" (as hereinafter
defined) shall be required for the approval or authorization of any "Business
Combination" (as hereinafter defined) of this corporation or any subsidiary of
this corporation with any "Related Person" (as hereinafter defined),
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law, in any agreement with any national
securities exchange or otherwise; provided, however, that the seventy percent
(70% ) voting requirement shall not be applicable and such Business Combination
shall require only such affirmative vote as is required by law, any agreement
with any national securities exchange or otherwise if:
(a) The "Continuing Directors" (as hereinafter defined) of this
corporation by at least a majority vote have expressly approved such Business
Combination either in advance of or subsequent to such Related Person becoming a
Related Person; or
(b) All of the following conditions are met:
2
EXHIBIT 3.1
(i) The cash or "Fair Market Value" (as hereinafter defined) as of the
date of the consummation of the Business Combination (the "Combination Date") of
the property, securities or other consideration to be received per share by
holders of a particular class or series of capital stock, as the case may be, of
this corporation in the Business Combination is not less than the highest of:
(A) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Related Person in acquiring beneficial
ownership of any of its holdings of such class or series of
capital stock of this corporation (i) within the two-year
period immediately prior to the Combination Date or (ii) in
the transaction or series of transactions in which the Related
Person became a Related Person, whichever is higher; or
(B) the Fair Market Value per share of the shares of
capital stock being acquired in the Business Combination (i)
as the Combination Date or (ii) the date on which the Related
Person became a Related Person, whichever is higher; or
(C) in the case of Common Stock, the per share book
value of the Common Stock as reported at the end of the fiscal
quarter immediately prior to the Combination Date, and in the
case of Preferred Stock, the highest preferential amount per
share to which the holders of shares of such class or series
of Preferred Stock would be entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation, regardless of whether
the Business Combination to be consummated constitutes such an
event.
The provision of this paragraph 1(b)(i) shall be required to
be met with respect to every class or series of outstanding capital
stock, whether or not the Related Person has previously acquired any
shares of a particular class or series of capital stock. In all of the
above instances, appropriate adjustments shall be made for
recapitalizations and for stock dividends, stock splits and like
distributions; and
(ii) The consideration to be received by holders of a
particular class or series of capital stock shall be in cash or in the
same form as previously has been paid by or on behalf of the Related
Person in connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of stock. If the
consideration so paid for any such share varied as to form, the form of
consideration for such shares shall be either cash or the form used to
acquire beneficial ownership of the largest number of shares of such
class or series of capital stock previously acquired by the Related
Person; and
(iii) After such Related Person has become a Related Person
and prior to the consummation of such Business Combination: (a) except
as approved by a majority of the Continuing 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 the outstanding
Preferred Stock; (b) there shall have been (1) no reduction in the
annual rate of dividends paid on the Common Stock (except as necessary
to reflect any subdivision
3
EXHIBIT 3.1
of the Common Stock), except as approved by a majority of the
Continuing Directors, and (2) 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, unless the failure so to increase such
annual rate is approved by a majority of the Continuing Directors; and
(c) such Related Person shall have not become the beneficial owner of
any additional shares of Voting Stock except as part of the transaction
which results in such Related Person becoming a Related Person; and
(iv) After such Related Person has become a Related Person,
such Related Person shall not have received the benefit, directly or
indirectly (except as proportionately as a stockholder), 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; and
(v) 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 public 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).
2. For purposes of this Article Tenth:
(a) The term "Business Combination" shall mean any (i) merger or
consolidation of this corporation or a Subsidiary (as hereinafter defined) of
this corporation with a Related Person or any other corporation which is or
after such merger or consolidation would be an "Affiliate" or "Associate" (as
hereafter defined) of a Related Person, (ii) sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one transaction or a series of
transactions) with any Related Person or any Affiliate or Associate of any
Related Person, of all or any "Substantial Part" (as hereinafter defined) of the
assets of this corporation or of a Subsidiary of this corporation to a Related
Person or any Affiliate or Associate of any Related Person, (iii) adoption of
any plan or proposal for the liquidation or dissolution of this corporation
proposed by or on behalf of a Related Person or any Affiliate or Associate of
any Related Person, (iv) sale, lease, exchange or other disposition, including
without limitation a mortgage or other security device, of all or any
Substantial Part of the assets of a Related Person or any Affiliate or Associate
of any Related Person to this corporation or a Subsidiary of this corporation,
(v) issuance or pledge of securities of this corporation or a Subsidiary of this
corporation to or with a Related Person or any Affiliate or Associate of any
Related Person, (vi) reclassification of securities (including any reverse stock
split) or recapitalization of this corporation or any other transaction that
would have the effect, either directly or indirectly, of increasing the
proportionate share of any class of equity or convertible securities of this
corporation or any subsidiary of this corporation which is directly or
indirectly beneficially owned by any Related Person or any Affiliate or
Associate of any Related Person, and (vii) agreement, contract or other
arrangement providing for any of the transactions described in this definition
of Business Combination.
4
EXHIBIT 3.1
(b) The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any other
person with whom such person or any Affiliate or Associate of such person has
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Voting Stock of this
corporation.
(c) The term "Related Person" shall mean any person (other than this
corporation, or any Subsidiary and other than any profit-sharing, employee stock
ownership or other employee benefit plan of this corporation or any Subsidiary
or any trustee of or fiduciary with respect to any such plan when acting in such
capacity) who or which:
(i) is the beneficial owner (as hereinafter defined) of ten
percent (10 %) or more of the Voting Stock;
(ii) is an Affiliate or Associate of this corporation and at
any time within the two-year period immediately prior to the date in
question was the beneficial owner of ten percent (10%) or more of the
Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock which were at any
time within the two-year period immediately prior to such time
beneficially owned by any Related Person, 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.
(d) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly;
(ii) which such person or any of its Affiliates or Associates
has, directly or indirectly, (a) 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 (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) 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.
(e) For the purposes of determining whether a person is a Related
Person pursuant to sub-paragraph (c) of this paragraph 2, the number of shares
of Voting Stock deemed to be outstanding shall include shares deemed owned
through application of sub-paragraph (d) of this paragraph 2 but shall not
include any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or option, or otherwise.
5
EXHIBIT 3.1
(f) The terms "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, 1985.
(g) The term "Subsidiary" means any corporation of which a majority of
any class of equity securities is owned, directly or indirectly, by this
corporation; provided, however, that for the purposes of the definition of
Related Person set forth in sub-paragraph (c) of this paragraph 2, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity securities is owned, directly or indirectly, by this corporation.
(h) The term "Continuing Director" means any member of the Board of
Directors, while such person is a member of the Board of Directors, who is not
an Affiliate, Associate or a representative of the Related Person involved in a
proposed Business Combination and was a member of the Board of Directors prior
to the time that the Related Person became a Related Person, and any successor
of a Continuing Director, while such successor is a member of the Board of
Directors, who is not an Affiliate, Associate or a representative of the Related
Person and is recommended or elected to succeed a Continuing Director by a
majority of Continuing Directors. Each initial director of this corporation
elected by the incorporator of this corporation shall be a Continuing Director
for purposes of this Article Tenth.
(i) The term "Substantial Part" shall mean more than twenty percent
(20%) of the Fair Market Value, as determined by a majority of the Continuing
Directors, of the total consolidated assets of this corporation and its
Subsidiaries taken as a whole as of the end of its most recent fiscal year ended
prior to the time the determination is being made.
(j) For the purposes of paragraph 1(b) (i) of this Article Tenth, the
term "other consideration to be received" shall include, without limitation,
capital stock retained by the shareholders.
(k) The term "Voting Stock" shall mean all of the outstanding shares of
Common Stock and the outstanding shares of Preferred Stock entitled to vote on
each matter on which the holders of record of Common Stock shall be entitled to
vote, and each reference to a proportion of shares of Voting Stock shall refer
to such proportion of the votes entitled to be cast by such shares voting as one
class.
(l) The term "Fair Market Value" means: (i) in case of capital 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 the 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 stock exchange, 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 successor 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 in good faith by a majority of
the Continuing Directors; and (ii) in the case of
6
EXHIBIT 3.1
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Continuing
Directors.
(m) A Related Person shall be deemed to have acquired a share of the
Voting Stock of this corporation at the time when such Related Person became the
beneficial owner thereof. If a majority of the Continuing Directors is not able
to determine the price at which a Related Person has acquired a share of Voting
Stock of this corporation, such price shall be deemed to be the Fair Market
Value of the shares in question at the time when the Related Person becomes the
beneficial owner thereof. With respect to shares owned by Affiliates, Associates
or other persons whose ownership is attributed to a Related Person under the
foregoing definition of Related Person, the price deemed to be paid therefor by
such Related Person shall be the price paid upon the acquisition thereof by such
Affiliate, Associate or other person, or, if such price is not determinable by a
majority of the Continuing Directors, the Fair Market Value of the shares in
question at the time when the Affiliate, Associate, or other such person became
the beneficial owner thereof.
3. The fact that any Business Combination complies with the provisions
of paragraph 1(b) of this Article Tenth shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of Directors, or any
member thereof, to approve such Business Combination or recommend its adoption
or approval to the shareholders of this corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
4. A majority of the Continuing Directors of the corporation shall have
the power and duty to determine for the purposes of this Article Tenth, on the
basis of information known to them after reasonable inquiry, (A) whether a
person is a Related Party, (B) the number of shares of Voting Stock beneficially
owned by any person, and (C) whether a person is an Affiliate or Associate of
another. A majority of the Continuing Directors of the corporation shall have
the further power to interpret all of the terms and provisions of this Article
Tenth.
ELEVENTH: Advance notice of stockholder nominations for the election of
directors shall be given in the manner provided in the by-laws of this
corporation.
TWELFTH: (a) Newly created directorships resulting from any increase in
the number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in
office (and not by Stockholders), even though less than a quorum of the Board of
Directors. Any Director elected in accordance with the preceding sentence shall
hold office until the next election of directors by the stockholders and until
such director's successor shall have been elected and qualified. No decrease in
the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent director.
(b) Any director may be removed from office by the affirmative vote of
the holders of 70% of the outstanding stock of the corporation entitled to vote
generally in the election of directors, provided that such removal is for cause.
7
EXHIBIT 3.1
THIRTEENTH: The corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in Articles SIXTH, SEVENTH, EIGHTH, NINTH,
TENTH, ELEVENTH, TWELFTH and this Article THIRTEENTH may not be repealed or
amended in any respect unless such repeal or amendment is approved by the
affirmative vote of not less than seventy percent (70 %) of the total voting
power of all outstanding shares of stock in this corporation entitled to vote
thereon.
FOURTEENTH: No director of the corporation shall be personally liable
to the corporation or any stockholder for monetary damages for breach of
fiduciary duty as a director, except for any matter in respect of which such
director shall be liable under Section 174 of the General Corporation Law of the
State of Delaware or any amendment thereto or shall be liable by reason that, in
addition to any and all other requirements for such liability, such director (i)
shall have breached the duty of loyalty to the corporation or its stockholders,
(ii) shall not have acted in good faith, or, in failing to act, shall not have
acted in good faith, (iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of law or
(iv) shall have derived an improper personal benefit. Neither the amendment nor
repeal of this Article Fourteenth, nor the adoption of any provision of this
certificate of incorporation inconsistent with this Article Fourteenth, shall
eliminate or reduce the effect of this Article Fourteenth in respect of any
matter occurring, or any cause of action, suit or claim that, but for this
Article Fourteenth would accrue or arise, prior to such amendment repeal or
adoption of an inconsistent provision.
8
EXHIBIT 3.1
CERTIFICATE OF DESIGNATION AND TERMS
OF PARTICIPATING PREFERRED STOCK
OF
ABM INDUSTRIES INCORPORATED
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, William W. Steele and Harry H. Kahn, the
President and Secretary, respectively, of ABM Industries Incorporated, a
Delaware corporation (the "Corporation"), do hereby certify as follows:
Pursuant to authority granted by Article Fifth of the
Certificate of Incorporation, as amended, of the Corporation and in accordance
with the provisions of Section 151 of the General Corporation Law of the State
of Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value
$.01 per share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series
of Preferred Stock, par value $.01 per share, of the Corporation, and
the designation and certain terms, powers, preferences and other rights
of the shares of such series, and certain qualifications, limitations
and restrictions thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series
shall be "Participating Preferred Stock" (hereinafter called
"this Series"). Each share of this Series shall be identical
in all respects with the other shares of this Series except as
to the dates from and after which dividends thereon shall be
cumulative.
(ii) The number of shares in this Series shall
initially be 50,000, which number may from time to time be
increased or decreased (but not below the number then
outstanding) by the Board of Directors. Shares of this Series
purchased by the Corporation shall be cancelled and shall
revert to authorized but unissued shares of Preferred Stock
undesignated as to series. Shares of this Series may be issued
in fractional shares, which fractional shares shall entitle
the holder, in proportion to such holder's fractional share,
to all rights of a holder of a whole share of this Series.
(iii) The holders of full or fractional shares of
this Series shall be entitled to receive, when and as declared
by the Board of Directors, but only out of funds legally
available therefor, dividends, (A) on each date that dividends
or other distributions (other than dividends or distributions
payable in Common Stock of the Corporation) are payable on or
in respect of Common Stock comprising part of the Reference
Package (as defined below), in an amount per whole share of
this Series equal to the aggregate amount of dividends or
other
9
EXHIBIT 3.1
distributions (other than dividends or distributions payable
in Common Stock of the Corporation) that would be payable on
such date to a holder of the Reference Package (as hereinafter
defined) and (B) on the last day of March, June, September and
December in each year, in an amount per whole share of this
Series equal to the excess (if any) of $2.50 over the
aggregate dividends paid per whole share of this Series during
the three month period ending on such last day. Each such
dividend shall be paid to the holders of record of shares of
this Series on the date, not exceeding sixty days preceding
such dividend or distribution payment date, fixed for the
purpose by the Board of Directors in advance of payment of
each particular dividend or distribution. Dividends on each
full and each fractional share of this Series shall be
cumulative from the date such full or fractional share is
originally issued; provided that any such full or fractional
share originally issued after a dividend record date and on or
prior to the dividend payment date to which such record date
relates shall not be entitled to receive the dividend payable
on such dividend payment date or any amount in respect of the
period from such original issuance to such dividend payment
date.
The term "Reference Package" shall initially mean
1,000 shares of Common Stock, $.01 par value per share
("Common Stock"), of the Corporation. In the event the
Corporation shall at any time after the close of business on
April 22, 1998 (A) declare of pay a dividend on any Common
Stock payable in Common Stock, (B) subdivide any Common Stock
or (C) combine any Common Stock into a smaller number of
shares, then and in each such case the Reference Package after
such event shall be the Common Stock that a holder of the
Reference Package immediately prior to such event would hold
thereafter as a result thereof.
Holders of shares of this Series shall not be
entitled to any dividends, whether payable in cash, property
or stock, in excess of full cumulative dividends, as herein
provided on this Series.
So long as any shares of this series are outstanding,
no dividends (other than a dividend in Common Stock or in any
other stock ranking junior to this Series as to dividends and
upon liquidation) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to this Series as
to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or on
a parity with this Series as to dividends or upon liquidation
be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for
a sinking fund for the redemption of any shares of any such
stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation), unless, in each
case, the full cumulative dividends (including the dividend to
be due upon payment of such dividend, distribution,
redemption, purchase or other acquisition) on all outstanding
shares of this Series shall have been, or shall
contemporaneously be, paid.
10
EXHIBIT 3.1
(iv) In the event of any merger, consolidation,
reclassification 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 this Series shall at the same time be
similarly exchanged or changed in an amount per whole share
equal to the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may
be, that a holder of the Reference Package would be entitled
to receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether
voluntary or involuntary, the holders of full and fractional
shares of this Series shall be entitled, before any
distribution or payment is made on any date to the holders of
the Common Stock or any other stock of the Corporation ranking
junior to this Series upon liquidation, to be paid in full an
amount per whole share of this Series equal to the greater of
(A) $100 or (B) the aggregate amount distributed or to be
distributed prior to such date in connection with such
liquidation, dissolution or winding up to a holder of the
Reference Package (such greater amount being hereinafter
referred to as the "Liquidation Preference"), together with
accrued dividends to such distribution or payment date,
whether or not earned or declared. If such payment shall have
been made in full to all holders of shares of this Series, the
holders of shares of this Series as such shall have no right
or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available
for distribution to the holders of shares of this Series upon
any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, shall be insufficient to pay
in full all amounts to which such holders are entitled
pursuant to the first paragraph of this Section (v), no such
distribution shall be made on account of any shares of any
other class or series of Preferred Stock ranking on a parity
with the shares of this Series upon such liquidation,
dissolution or winding up unless proportionate distributive
amounts shall be paid on account of the shares of this Series,
ratably in proportion to the full distributable amounts for
which holders of all such parity shares are respectively
entitled upon such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of
the Corporation, the holders of shares of this Series then
outstanding shall be entitled to be paid out of assets of the
Corporation available for distribution to its Stockholders all
amounts to which such holders are entitled pursuant to the
first paragraph of this Section (v) before any payment shall
be made to the holders of Common Stock or any other stock of
the Corporation ranking junior upon liquidation to this
Series.
For the purposes of this Section (v), the
consolidation or merger of, or binding share exchange by, the
Corporation with any other corporation shall not
11
EXHIBIT 3.1
be deemed to constitute a liquidation, dissolution or winding
up of the Corporation.
(vi) The shares of this Series shall not be
redeemable.
(vii) In addition to any other vote or consent of
Stockholders required by law or by the Restated Certificate of
Incorporation, as amended, of the Corporation, each whole
share of this Series shall, on any matter, vote as a class
with any other capital stock comprising part of the Reference
Package and voting on such matter and shall have the number of
votes thereon that a holder of the Reference Package would
have.
IN WITNESS WHEREOF, the undersigned have signed and attested
this certificate on the 17th day of March, 1998.
/s/ William W. Steele
----------------------------------------
President
William W. Steele
Attest:
/s/ Harry H. Kahn
- --------------------------------
Secretary
Harry H. Kahn
12