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EXHIBIT 3(A)
RESTATED CERTIFICATE OF INCORPORATION
OF
THE B.F.GOODRICH COMPANY
UNDER SECTION 807 OF THE
BUSINESS CORPORATION LAW
We, the undersigned, Jon V. Heider and Nicholas J. Calise, being
respectively Senior Vice President and Secretary of THE B.F.GOODRICH COMPANY, do
hereby certify as follows:
1. The name of the corporation is THE B.F.GOODRICH COMPANY, hereinafter
referred to as the "Company".
2. The Certificate of Incorporation was filed by the Department of
State on the 2nd day of May, 1912.
3. The Certificate of Incorporation is hereby amended to modify
paragraph A of Article ELEVENTH relating to repurchases from an Interested
Shareholder (as defined) in three respects. First, it requires that any proposed
repurchase of shares from an Interested Shareholder requiring the approval of
shareholders also requires the approval of a majority of the non-officer
directors. Second, it requires the cost of any such shareholder solicitation to
be at the expense of the Interested Shareholder. Finally, the amendment further
limits the price at which a purchase of shares could be made from an Interested
Shareholder without shareholder approval to the higher of (i) the closing price
on the last trading day immediately preceding the earlier of public disclosure
of the repurchase or the signing of a definitive repurchase agreement and (ii)
the average closing price during the 20 trading days immediately preceding the
date of such disclosure or agreement.
4. The text of the Certificate of Incorporation, as amended heretofore,
and as further amended, hereby is restated to read as herein set forth in full:
CERTIFICATE OF INCORPORATION OF
THE B.F.GOODRICH COMPANY
We, the undersigned, all being persons of full age and at least
two-thirds being citizens of the United States and at least one of us a resident
of the State of New York, desiring to form a stock corporation (other than a
moneyed corporation, or a corporation provided for by the banking, the
insurance, the
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railroad and the transportation corporation laws, or an educational institution
or corporation which may be incorporated as provided in the education law)
pursuant to the provisions of the Business Corporation Law of the State of New
York, do hereby make, sign, acknowledge and file this certificate for that
purpose as follows:
FIRST - The name of the corporation shall be THE B.F.GOODRICH COMPANY,
hereinafter referred to as the "Company."
SECOND - The location of its principal office in the State of New York
shall be at the City of New York, in the Borough of Manhattan, in the County of
New York, and State of New York.
THIRD - The purpose for which the Company is formed is to engage in any
lawful act or activity for which corporations may be organized under the
Business Corporation Law of the State of New York, provided that the Company is
not formed to engage in any act or activity requiring the consent or approval of
any state official, department, board, agency or other body without such consent
or approval first being obtained.
FOURTH - The aggregate number of shares which the Company shall have
authority to issue is 110,000,000, divided into 10,000,000 shares of Series
Preferred Stock of the par value of $1 per share (hereafter called "Series
Preferred Stock"), and 100,000,000 shares of Common Stock of the par value of $5
per share (hereafter called "Common Stock").
A statement of the designations, preferences, privileges and voting
powers of the shares of each class and the restrictions and qualifications
thereof shall be as follows:
(a) Series Preferred Stock
(1) Board Authority: The Series Preferred Stock may be issued
from time to time by the Board of Directors as herein provided in one
or more series. The designations, relative rights, preferences and
limitations of the Series Preferred Stock, and particularly of the
shares of each series thereof, may be similar to or may differ from
those of any other series. The Board of Directors of the Company is
hereby expressly granted authority, subject to the provisions of this
Article FOURTH, to issue from time to time Series Preferred stock in
one or more series and to fix from time to time before issuance
thereof, by filing a certificate pursuant to the Business Corporation
Law, the number of shares in each such series of such class and all
designations, relative rights, (including the right to convert into
shares of any class or into shares of any series of any class),
preferences and limitations of the shares in each such series,
including, but without limiting the generality of the foregoing, the
following:
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(i) The number of shares to constitute such series (which
number may at any time, or from time to time, be increased or
decreased by the Board of Directors, notwithstanding that
shares of the series may be outstanding at the time of such
increase or decrease, unless the Board of Directors shall have
otherwise provided in creating such series) and the
distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether
or not dividends on the shares of such series shall be
cumulative, and the date or dates, if any, from which
dividends thereon shall be cumulative;
(iii) Whether or not the shares of such series shall be
redeemable, and, if redeemable, the date or dates upon or
after which they shall be redeemable, the amount per share
(which shall be, in the case of each share, not less than its
preference upon involuntary liquidation, plus an amount equal
to all dividends thereon accrued and unpaid, whether or not
earned or declared) payable thereon in the case of the
redemption thereof, which amount may vary at different
redemption dates or otherwise as permitted by law;
(iv) The right, if any, of holders of such series to convert
the same into, or exchange the same for Common Stock or other
stock as permitted by law, and the terms and conditions of
such conversion or exchange, as well as provisions for
adjustment of the conversion rate in such events as the Board
of Directors shall determine;
(v) The amount per share payable on the shares of such series
upon the voluntary and involuntary liquidation, dissolution or
winding up of the Company.
(vi) Whether the holders of shares of such series shall have
voting power, full or limited, in addition to the voting
powers provided by law, and in case additional voting powers
are accorded to fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and
privileges of such series, provided, however, that no such
rights, privileges, qualifications, limitations or
restrictions shall be in conflict with the Restated
Certificate of Incorporation of the Company or with the
resolution or resolutions adopted by the Board of Directors,
as
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hereinabove provided, providing for the issue of any series
for which there are shares then outstanding.
All shares of Series Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series issued
at different times may differ as to dates, if any, from which
dividends thereon may accumulate. All shares of Series Preferred Stock
of all series shall be of equal rank and shall be identical in all
respects except that to the extent not otherwise limited in this
Article FOURTH any series may differ from any other series with
respect to any one or more of the designations, relative rights,
preferences and limitations (including, without limitations, the
designations, relative rights, preferences and limitations described
or referred to in subparagraphs (i) to (vii) inclusive above) which
may be fixed by the Board of Directors pursuant to this paragraph 1.
2. Dividends: Dividends on the outstanding Series Preferred
Stock of each series shall be declared and paid or set apart for
payment before any dividends shall be declared and paid or set apart
for payment on the Common Stock with respect to the same quarterly
dividend period. Dividends on any shares of Series Preferred Stock
shall be cumulative only if and to the extent set forth in a
certificate filed pursuant to law. After dividends on all shares of
Series Preferred Stock (including cumulative dividends if and to the
extent any such shares shall be entitled thereto) shall have been
declared and paid or set apart for payment with respect to any
quarterly dividend period, then and not otherwise so long as any shares
of the Series Preferred Stock shall remain outstanding, dividends may
be declared and paid or set apart for payment with respect to the same
quarterly dividend period on the Common Stock out of the assets or
funds of the Company legally available therefor.
All shares of Series Preferred Stock of all series shall be of equal
rank, preference and priority as to dividends irrespective of whether
or not the rates of dividends to which the same shall be entitled shall
be the same and when the stated dividends are not paid in full, the
shares of all series of the Series Preferred Stock shall share ratable
in the payment thereof in accordance with the sums which would be
payable on such shares if all dividends were paid in full provided,
however, that any two or more series of the Series Preferred Stock may
differ from each other as to the existence and extent of the right to
cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided
herein or in the certificate filed pursuant to law with respect to any
series of the Series Preferred Stock, or as otherwise provided by law,
the Series Preferred Stock shall not have any right to vote for the
election of directors or for any other purpose and the Common Stock
shall have the exclusive right to vote for the election of directors
and for all other purposes;
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provided, however, that at any time when six (6) quarterly dividends
on any one or more series of Series Preferred Stock entitled to
receive cumulative dividends shall be in default, the holders of all
such cumulative series at the time or times outstanding as to which
such default shall exist shall be entitled, at the next annual meeting
of stockholders for the election of directors, voting as a class,
whether or not the holders thereof shall be entitled otherwise to vote
by certificate filed pursuant to law, to the exclusion of the holders
of Common Stock and the holders of any series of non-cumulative Series
Preferred Stock, to vote for and elect two members of the Board of
Directors of the Company, and provided, further that at any time when
six (6) quarterly dividends on any one or more series of
non-cumulative Series Preferred Stock shall be in default, the holders
of all such non-cumulative series at the time or times outstanding as
to which such default shall exist shall be entitled, at the next
annual meeting of stockholders for the election of directors, voting
as a class, whether or not the holders thereof shall be entitled
otherwise to vote by certificate filed pursuant to law, to the
exclusion of the holders of Common Stock and the holders of any series
of cumulative Series Preferred Stock, to vote for and elect two
members of the Board of Directors of the Company. All rights of all
series of Series Preferred Stock to participate in the election of
directors pursuant to this paragraph 3 shall continue in effect, in
the case of all series of Series Preferred Stock entitled to receive
cumulative dividends, until cumulative dividends have been paid in
full or set apart for payment on each cumulative series which shall
have been entitled to vote at the previous annual meeting of
stockholders, or in the case of all series of non-cumulative Series
Preferred Stock, until non-cumulative dividends have been paid in full
or set apart for payment for four consecutive quarterly dividend
periods on each non-cumulative series which shall have been entitled
to vote at the previous annual meeting of stockholders. Directors
elected by the holders of any one or more series of stock voting
separately as a class, may be removed only by a majority vote of such
series, voting separately as a class, so long as the voting power of
such series shall continue. Subject to the voting rights, if any, of
any other series of Series Preferred Stock, the holders of the Common
Stock, voting as a class, to the exclusion of the holders of such
series so entitled to vote for and elect members of the Board pursuant
to this paragraph 3, shall be entitled to vote for and elect the
balance of the Board of Directors.
Each stockholder entitled to vote at any particular time in accordance
with the foregoing provisions shall not have more than one vote for
each share of stock held of record by him at the time entitled to
voting rights.
4. Liquidation: In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, each
series of Series Preferred Stock shall have preference and priority
over the Common Stock for payment of the amount to which such series
of Series
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Preferred Stock shall be entitled in accordance with the provisions
thereof and each holder of Series Preferred Stock shall be entitled to
be paid in full his share of such amount, or have a sum sufficient for
the payment in full set aside, before any payments shall be made to
the holders of the Common Stock. If, upon liquidation, dissolution or
winding up of the Company, the assets of the Company or proceeds
thereof, distributable among the holders of the shares of all series
of the Series Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid, then such assets, or the proceeds
thereof, shall be distributed among such holders ratably in accordance
with the respective amounts which would be payable if all amounts
payable thereon were paid in full. After the payment to the holders of
Series Preferred Stock of all such amounts to which they are entitled,
as above provided, the remaining assets and funds of the Company shall
be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of
any one or more series shall be made redeemable as provided in clause
(iii) of paragraph 1 of section (a) of Article FOURTH herein, the
Company, at the option of the Board of Directors, may redeem, at the
time or times specified in the certificate filed pursuant to law with
respect to any such series, all or any part of any such series of
Series Preferred Stock outstanding upon notice duly given as
hereinafter specified, by paying for each share the then applicable
redemption price fixed by the Board of Directors as provided herein,
plus an amount equal to accrued and unpaid dividends to the date fixed
for redemption, provided, however, that a notice specifying the shares
to be redeemed, and the time and place of redemption (and, if less
than the total outstanding shares are to be redeemed, specifying the
certificate numbers and number of shares to be redeemed) shall be
published once in a daily newspaper printed in the English language
and published and of general circulation in the Borough of Manhattan,
the City of New York, and shall be mailed, addressed to the holders of
record of the Series Preferred Stock to be redeemed at their
respective addresses as the same shall appear upon the books of the
Company, not less than thirty (30) days nor more than ninety (90) days
previous to the date fixed for redemption. If less than the whole
amount of any outstanding series of Series Preferred Stock is to be
redeemed, the shares of such series to be redeemed shall be selected
by lot or pro rata in any manner determined by resolution of the Board
of Directors to be fair and proper. From and after the date fixed in
any such notice as the date of redemption (unless default shall be
made by the Company in providing moneys at the time and place of
redemption for the payment of the redemption price) all dividends upon
the Series Preferred Stock so called for redemption shall cease to
accrue, and all rights of the holders of said Series Preferred Stock
as stockholders in the Company, except the right to receive the
redemption price upon surrender of the certificate
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representing the Series Preferred Stock so called for redemption, duly
endorsed for transfer, if required, shall cease and determine. With
respect to any shares of Series Preferred Stock so called for
redemption, if, before the redemption date, the Company shall deposit
with a bank or trust company in the Borough of Manhattan, City of New
York, having a capital and surplus of at least $25,000,000, funds
necessary for such redemption, in trust, to be applied to the
redemption of the shares of Series Preferred Stock so called for
redemption, then from and after the date of such deposit, all rights
of the holders of such shares of Series Preferred Stock, so called for
redemption, shall cease and determine, except the right to receive, on
and after the date of such deposit, the redemption price upon
surrender of the certificates representing such shares of Series
Preferred Stock, so called for redemption, duly endorsed for transfer,
if required, and except as might otherwise be provided in the
certificate filed pursuant to law with respect to any such shares of
Series Preferred Stock, so called for redemption. Any interest accrued
on such funds shall be paid to the Company from time to time. Any
funds so deposited and unclaimed at the end of six (6) years from such
redemption date shall be released or repaid to the Company, after
which the holders of such shares of Series Preferred Stock so called
for redemption shall look only to the Company for payment of the
redemption price. Notwithstanding the foregoing, no redemption of any
shares of any series of Series Preferred Stock shall be made by the
Company (1) which as of the date of mailing of the notice of such
redemption would, if such date were the date fixed for redemption,
reduce the net assets of the Company remaining after such redemption
below the aggregate amount payable upon voluntary or involuntary
liquidation, dissolution or winding up to the holders of shares having
rights senior or equal to the Series Preferred Stock in the assets of
the Company upon liquidation, dissolution or winding up; or (2) unless
all cumulative dividends for the current and all prior dividend
periods have been declared and paid or declared and set apart for
payment on all shares of the Company having a right to cumulative
dividends.
6. $7.85 Cumulative Preferred Stock, Series A.
(i) The distinctive serial designation of the first series
of Series Preferred Stock, which shall be a closed series,
shall be "$7.85 Cumulative Preferred Stock, Series A ($1 par
value)" (hereinafter called "Series A Stock").
(ii) The number of shares of Series A Stock shall be
250,000.
(iii) The annual rate of dividends payable on shares of
Series A Stock shall be $7.85 per year and no more, payable
quarterly on the last days of March, June, September and
December, respectively, in each year with respect to the
quarterly dividend
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period (or portion thereof) ending on such dividend payment
date; provided, however, that in the case of any shares of
Series A Stock issued prior to October 1, 1972, the first
dividend payment, of dividends accrued since the date of
issue, shall be made on December 31, 1972.
(iv) Dividends on the shares of Series A Stock shall be
cumulative from the date or dates of issue thereof. The
holders of Series A Stock, in preference to the holders of any
junior stock, shall be entitled to receive, as and when
declared by the Board of Directors out of any funds legally
available therefor, cash dividends at the rate fixed in
subdivision (iii) hereof. The term "junior stock" as used
herein means Common Stock or any other stock of the Company
which by its terms is junior to Series Preferred Stock in
respect of dividends or payments in liquidation.
In no event, so long as any Shares of Series A Stock shall be
outstanding, shall any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on any junior stock, nor shall any shares of
any capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless (A) all dividends on Series
A Stock for all past quarterly dividend periods and in the
case of a dividend or distribution, for the then current
quarterly period, shall have been paid or declared and a sum
sufficient for the payment thereof set apart and (B) the
Company shall have set aside all funds required for the
Sinking Fund for Series A Stock provided for in clause (vii)
of this paragraph 6 through the date of such payment,
declaration, distribution, purchase, redemption or other
acquisition. The provisions of this paragraph shall not,
however, apply to a dividend payable in any junior stock, to
the acquisition of shares of any junior stock in exchange for
shares of any other junior stock or to the acquisition of
shares of capital stock other than junior stock pursuant to a
tender offer made on a pro rata basis for all shares of
capital stock of the Company other than junior stock.
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series A Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 6, together with accrued dividends to such
distribution or payment date whether or not earned or
declared. In the event of any involuntary liquidation,
dissolution or winding up of the affairs of the
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Company, then, before any distribution or payment shall be
made to the holders of any junior stock, the holders of Series
A Stock shall be entitled to be paid in full an amount equal
to $100 per share, together with accrued dividends to such
distribution or payment date whether or not earned or
declared.
(vi) Series A Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, at the redemption price in
effect at the redemption date as provided in this clause (vi),
together with accrued dividends to the redemption date;
provided however, that no such redemption may be made prior to
August 15, 1982 directly or indirectly from the proceeds of,
or as a part of, or in anticipation of, any refunding
operation involving the incurring of indebtedness, or issuance
of stock ranking prior to or on a parity with Series A Stock
in respect of dividends or upon liquidation, at an interest
cost on indebtedness or dividend yield on capital stock of
less than 7.85% both calculated in accordance with accepted
financial practice. The redemption prices per share for shares
of Series A Stock redeemed at any time during the twelve
months' periods indicated shall be as follows:
12 MONTHS
BEGINNING 12 MONTHS BEGINNING
AUGUST 15 PRICE AUGUST 15 PRICE
1972 $107.85 1982 $103.92
1973 107.46 1983 103.53
1974 107.06 1984 103.14
1975 106.67 1985 102.75
1976 106.28 1986 102.36
1977 105.89 1987 101.96
1978 105.50 1988 101.57
1979 105.10 1989 101.18
1980 104.71 1990 100.78
1981 104.32 1991 100.39
and $100 per share thereafter.
The provisions of paragraph 5 of this section (a) of Article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series A Stock, provided that, in addition, in
the case of any redemption of Series A Stock the Company shall
deposit, before the redemption date, with a bank or trust
company in the Borough of Manhattan, City of New York, having
a capital and surplus of at least $25,000,000, funds necessary
for such redemption, in trust, to
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be applied to such redemption, and the amounts shall be made
payable at the office of such bank or trust company.
(vii) There shall be a sinking fund (hereinafter called the
"Sinking Fund") for the benefit of the shares of Series A
Stock. For the purposes of the Sinking Fund, out of any net
assets of the Company legally available therefor, before any
dividends, in cash or property, shall be paid or declared, or
any distribution ordered or made on any junior stock, and
before any shares of any capital stock of the Company shall be
purchased, redeemed, or otherwise acquired for value by the
Company or any subsidiary, the Company shall set aside in cash
annually on July 16 in each year commencing with July 16,
1979, so long as there shall be outstanding any shares of
Series A Stock, an amount sufficient to redeem 12,500 shares
of Series A Stock (or such lesser number as remains
outstanding), at a price (the `Sinking Fund Redemption Price")
of $100 per share plus an amount equal to dividends accrued
thereon to the date fixed for redemption; provided, however,
that there shall be allowed to the Company as a credit
thereagainst any shares of Series A Stock which the Company
may have acquired or redeemed (otherwise than through the
operation of the Sinking Fund) which have not theretofore been
used for the purpose of any such credit and which shares shall
have been set aside by the Company for the purpose of the
Sinking Fund. The Sinking Fund shall be cumulative so that if
on any such July 16 the net assets of the Company legally
available therefor shall be insufficient to permit any such
amount to be set aside in full, or if for any other reason
such amount shall not have been set aside in full, the amount
of the deficiency shall be set aside, but without interest,
before any dividend, in cash or property, shall be paid or
declared, or any other distribution ordered or made, on any
junior stock and before any shares of any capital stock of the
Company shall be purchased, redeemed or otherwise acquired for
value by the Company or by any subsidiary of the Company,
subject to the exceptions provided in the last sentence of
clause (iv) of this paragraph 6. Moneys in the Sinking Fund
shall be applied within thirty days after having been set
aside to the redemption of shares of Series A Stock as above
provided. The Company may elect to redeem, on any Sinking Fund
redemption date, up to an additional 12,500 shares of Series A
Stock at the Sinking Fund Redemption Price. Such optional
redemption privilege shall not be cumulative from year to
year.
The provisions of paragraph 5 of this section (a) of Article
FOURTH shall apply to all Sinking Fund redemptions of Series A
Stock
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provided that, in addition, in the case of Sinking Fund
redemptions of Series A Stock the Company shall deposit,
before the redemption date, with a bank or trust company
meeting the requirements of clause (vi) of this paragraph 6,
funds necessary for such redemption, and the amounts shall be
made payable at the office of such bank or trust company.
(viii) The holders of Series A Stock shall be entitled to vote
only as hereinafter and in paragraph 3 of this section (a) of
Article FOURTH provided. Each stockholder of Series A Stock
entitled to vote at any particular time shall have one vote
for each share of Series A Stock held of record by him and
entitled to voting rights.
So long as any shares of Series A Stock are outstanding, in
addition to any other vote or consent of shareholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series A Stock at the time outstanding, shall be
necessary for effecting or validating:
(a) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the Company, which affects adversely
the voting powers of any other rights or preferences
of the holders of Series A Stock;
(b) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
(c) issuance of any shares of any other series of
Series Preferred Stock unless, after giving pro forma
effect to the issuance of such shares and any
concurrent stock or debt retirement, net income of
the Company for any period of twelve consecutive
months within the preceding eighteen calendar months
exceeds two times the aggregate of all annual
dividend requirements of Series A Stock and all
shares (outstanding pro forma) ranking prior to or on
a parity with Series A Stock with respect to
dividends; or
(d) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series B Stock
under this clause (viii).
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7. $.975 Cumulative Preferred Stock, Series B.
(i) The distinctive serial designation of the second series of
Series Preferred Stock, which shall be a closed series, shall
be "$.975 Cumulative Preferred Stock, Series B ($1 par value)"
(hereinafter called "Series B Stock").
(ii) The number of shares of Series B Stock shall be 450,000.
(iii) The annual rate of dividends payable on shares of Series
B Stock shall be $.975 per year and no more, payable quarterly
on the last day of March, June, September and December,
respectively, in each year with respect to the quarterly
dividend period (or portion thereof) ending on such dividend
payment date; provided, however, that in the case of any
shares of Series B Stock issued prior to October 1, 1978, the
first dividend payment, which shall be of dividends accrued
since the date of issue, shall be made on December 31, 1978.
(iv) Dividends on the shares of Series B Stock shall be
cumulative from the date or dates of issue thereof. The
holders of Series B Stock, in preference to the holders of any
junior stock, shall be entitled to receive, as and when
declared by the Board of Directors out of any funds legally
available therefor, cash dividends at the rate fixed in
subdivision (iii) hereof. The term "junior stock" as used
herein means Common Stock or any other stock of the Company
which by its terms is junior to Series Preferred Stock in
respect of dividends or payments in liquidation.
In no event, so long as any shares of Series B Stock shall be
outstanding, shall any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on any junior stock, nor shall any shares of
any capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless (A) all dividends on Series
B Stock for all past quarterly dividend periods and, in the
case of a dividend or distribution, for the then current
quarterly period, shall have been paid or declared and a sum
sufficient for the payment thereof set apart, and (B) the
Company shall have set aside all funds required for the
Sinking Fund for Series B Stock provided for in clause (vii)
of this paragraph 7 through the date of such payment,
declaration, distribution, purchase, redemption or other
acquisition. The provisions of this paragraph shall not,
however, apply to a dividend payable in any junior
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stock, to the acquisition of shares of any junior stock in
exchange for shares of any other junior stock or to the
acquisition of shares of capital stock other than junior stock
pursuant to a tender offer made on a pro rata basis for all
shares of capital stock of the Company other than junior
stock.
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series B Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 7 (or at the redemption price for the 12
months beginning July 15, 1983 in the event of a distribution
or payment date prior to July 15, 1983), together with accrued
dividends to such distribution or payment date whether or not
earned or declared. In the event of any involuntary
liquidation, dissolution or winding up of the affairs of the
Company, then, before any distribution or payment shall be
made to the holders of any junior stock, the holders of Series
B Stock shall be entitled to be paid in full an amount equal
to $10 per share, together with accrued dividends to such
distribution or payment date whether or not earned or
declared.
(vi) Series B Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, at the redemption price in
effect at the redemption date as provided in this clause (vi),
together with accrued dividends to the redemption date;
provided, however, that no such redemption may be made prior
to July 15, 1983 or the date five years from the original
issue date of the Series B Stock, whichever is later. The
redemption prices per share for shares of Series B Stock
redeemed at any time during the twelve month periods indicated
shall be as follows:
12 MONTHS 12 MONTHS
BEGINNING BEGINNING
JULY 15 PRICE JULY 15 PRICE
1983 $10.49 1988 $10.24
1984 10.44 1989 10.20
1985 10.39 1990 10.15
1986 10.34 1991 10.10
1987 10.29 1992 10.05
and $10 per share thereafter.
The provisions of paragraph 5 of this section (a) of Article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series B Stock, provided that, in addition, in
the case of any
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redemption of Series B Stock the Company shall deposit, before
the redemption date, with a bank or trust company in the
Borough of Manhattan, City of New York, having a capital and
surplus of at least $25,000,000, funds necessary for such
redemption, in trust, to be applied to such redemption and the
amounts shall be made payable at the office of such bank or
trust company.
(vii) There shall be a sinking fund (hereinafter called the
"Series B Sinking Fund") for the benefit of the shares of
Series B Stock. For the purposes of the Series B Sinking Fund,
out of any net assets of the company legally available
therefor, before any dividends, in cash or property, shall be
paid or declared, or any distribution ordered or made on any
junior stock, and before any shares of any capital stock of
the Company shall be purchased, redeemed, or otherwise
acquired for value by the Company or any subsidiary, the
Company shall set aside in cash annually on June 15 in each
year commencing with June 15, 1983 (provided the first such
date shall be on the fifth anniversary of the original issue
date of the Series B Stock if such original issue date is
later than June 15, 1978), so long as there shall be
outstanding any shares of Series B Stock, an amount sufficient
to redeem 30,000 shares of Series B Stock (or such lesser
number as remains outstanding), at a price (the "Series B
Sinking Fund Redemption Price") of $10 per share plus an
amount equal to dividends accrued thereon to the date fixed
for redemption; provided, however, that there shall be allowed
to the Company as a credit thereagainst any shares of Series B
Stock which the Company may have acquired or redeemed
(otherwise than through the operation of the Series B Sinking
Fund) which have not theretofore been used for the purpose of
any such credit and which shares shall have been set aside by
the Company for the purpose of the Series B Sinking Fund. The
Series B Sinking Fund shall be cumulative so that if on any
such June 15 or the fifth anniversary date referred to above,
in the case of June 15, 1983, the net assets of the Company
legally available therefor shall be insufficient to permit any
such amount to be set aside in full, or if for any other
reason such amount shall not have been set aside in full, the
amount of the deficiency shall be set aside, but without
interest, before any dividend, in cash or property shall be
paid or declared, or any other distribution ordered or made,
on any junior stock and before any shares of any capital stock
of the Company shall be purchased, redeemed or otherwise
acquired for value by the Company or by an subsidiary of the
Company, subject to the exceptions provided in the last
sentence of clause (iv) of this paragraph 7. Moneys in the
Series B Sinking Fund shall be applied within thirty days
after having been set aside to the redemption of shares of
Series B Stock as above provided. The
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Company may elect to redeem, on any Series B Sinking Fund
Redemption Date, up to an additional 30,000 shares of Series B
Stock at the Series B Sinking Fund Redemption Price. Such
optional redemption privilege shall not be cumulative from
year to year.
The provisions of paragraph 5 of this section (a) of Article
FOURTH shall apply to all Sinking Fund redemption of Series B
Stock provided that, in addition, in the case of Series B
Sinking Fund redemption of Series B Stock the Company shall
deposit, before the redemption date, with a bank or trust
company meeting the requirements of clause (vi) of this
paragraph 7, funds necessary for such redemption, and the
amounts shall be made payable at the office of such bank or
trust company.
(viii) The holders of Series B Stock shall be entitled to vote
only as hereinafter provided and as provided in paragraph 3 of
this section (a) of Article FOURTH. Each stockholder of Series
B Stock entitled to vote at any particular time shall have one
vote for each share of Series B Stock held of record by him
and entitled to voting rights.
So long as any shares of Series B Stock are outstanding, in
addition to any other vote or consent of shareholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series B Stock at the time outstanding shall be
necessary for effecting or validating:
(a) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the company, which affects adversely
the voting powers or any other rights or preferences
of the holders of Series B Stock;
(b) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
(c) issuance of any shares of any other series of
Series Preferred Stock unless, after giving pro forma
effect to the issuance of such shares and any
concurrent stock or debt retirement, net income of
the Company for any period of twelve consecutive
months within the preceding eighteen
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calendar months exceeds two times the aggregate of
all annual dividend requirements of Series B Stock
and all shares (outstanding pro forma) ranking prior
to or on a parity with Series B Stock with respect to
dividends; or
(d) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series B Stock
under this clause (viii).
8. $3.125 Cumulative Convertible Preferred Stock, Series C.
(i) The distinctive serial designation of the third series of
Series Preferred Stock, which shall be a closed series, shall
be "$3.125 Cumulative Convertible Preferred Stock, Series C
($1 par value)" (hereinafter called "Series C Stock").
(ii) The number of shares of Series C Stock shall be
3,538,936.
(iii) The annual rate of dividends payable on shares of Series
C Stock shall be $3.125 per year and no more, payable
quarterly on the last day of march, June, September and
December in each year with respect to the quarterly dividend
period (or portion thereof) ending on such dividend payment
date; provided, however, that in the case of any shares of
Series C Stock issued prior to June 30, 1981, the first
dividend payment, which shall be of dividends accrued since
February 15, 1981, shall be made on June 30, 1981.
(iv) Dividends on the shares of Series C Stock shall be
cumulative from February 15, 1981. The holders of Series C
Stock, in preference to the holders of any junior stock, shall
be entitled to receive, as and when declared by the Board of
Directors out of any funds legally available therefor, cash
dividends at the rate fixed in clause (iii) of this paragraph
8. The term "junior stock" as used herein means Common Stock
or any other stock of the Company which by its terms is junior
to Series Preferred Stock in respect of dividends or payments
in liquidation.
In no event, so long as any shares of Series C Stock shall be
outstanding, shall, any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on any junior stock, nor shall any shares of
any capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless all dividends on Series C
Stock for all past quarterly dividend
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periods and, in the case of a dividend or distribution, for
the then current quarterly period, shall have been paid or
declared and a sum sufficient for the payment thereof set
apart. The provisions of this clause (iv) shall not however,
apply to a dividend payable in any junior stock, to the
acquisition of shares of any junior stock in exchange for
shares of any other junior stock or to the acquisition of
shares of capital stock other than junior stock pursuant to a
tender offer made on a pro rata basis for all shares of
capital stock of the Company other than junior stock (based on
the aggregate involuntary liquidation value of each series of
such capital stock outstanding).
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series C Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 8, together with accrued dividends to such
distribution or payment date, whether or not earned or
declared. In the event of any involuntary liquidation,
dissolution or winding up of the affairs of the Company, then,
before any distribution or payment shall be made to the
holders of any junior stock, the holders of Series C Stock
shall be entitled to be paid in full an amount equal to $25
per share, together with accrued dividends to such
distribution or payment date, whether or not earned or
declared.
(vi) Series C Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, at the redemption price in
effect at the redemption date as provided in this clause (vi),
together with accrued dividends to the redemption date,
whether or not earned or declared. The redemption prices per
share for shares of Series C Stock redeemed at any time during
the twelve-month periods indicated shall be as follows:
12 MONTHS 12 MONTHS
BEGINNING BEGINNING
FEBRUARY 15 PRICE FEBRUARY 15 PRICE
1981 $28.125 1986 $26.563
1982 27.813 1987 26.250
1983 27,500 1988 25.938
1984 27.188 1989 25.625
1985 26.875 1990 25.313
and $25 per share thereafter.
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The provisions of paragraph 5 of this section (a) of article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series C Stock, provided that, in addition, in
the case of any redemption of Series C Stock the Company shall
deposit, before the redemption date, with a bank or trust
company in the Borough of Manhattan, City of New York, having
a capital and surplus of at least $25,000,000, funds necessary
for such redemption, in trust, to be applied to such
redemption and the amounts shall be made payable at the office
of such bank or trust company.
(vii) The holders of Series C Stock shall be entitled to vote
only as hereinafter provided and as provided in paragraph 3 of
this section (a) of Article FOURTH. Each stockholder of Series
C Stock entitled to vote at any particular time shall have one
vote for each share of Series C Stock held of record by him
and entitled to voting rights.
So long as any shares of Series C Stock are outstanding, in
addition to any other vote or consent of stockholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series C Stock at the time outstanding shall be
necessary for effecting or validating:
(a) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the Company, which affects adversely
the voting powers or any other rights or preferences
of the holders of Series C Stock;
(b) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
(c) issuance of any shares of any other series of
Series Preferred Stock unless, after giving pro forma
effect to the issuance of such shares and any
concurrent stock or debt retirement, net income of
the Company for any period of twelve consecutive
months within the preceding eighteen calendar months
exceeds two times the aggregate of all annual
dividend requirements of Series C Stock and all
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shares (outstanding pro forma) ranking prior to or on
a parity with Series C Stock with respect to
dividends; or
(d) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series C Stock
under this clause (vii).
(viii) (A) Subject to the provisions for adjustment
hereinafter set forth, each share of Series C Stock
shall be convertible at the option of the holder
thereof, upon surrender at the principal office of
the Company and at such other office or offices as
the Board of Directors may designate, of the
certificate for the share so to be converted, duly
endorsed or assigned to the Company in blank, into
.833 fully paid and nonassessable shares of Common
Stock of the Company. The right to convert shares of
Series C Stock called for redemption shall terminate
at the close of business on the date fixed for
redemption. Upon conversion, no allowance or
adjustment shall be made for dividends on either
class of stock.
(B) The number of shares of Common Stock and the
number of any other shares of the Company, if any,
into which each share of Series C Stock is
convertible shall be adjusted from time to time as
follows:
(1) In case the Company shall (x) pay a
dividend on its Common Stock in other
shares, (y) subdivide its outstanding Common
Stock or (z) combine its outstanding Common
Stock into a smaller number of shares of
Common Stock, or issue by reclassification
of its shares of Common Stock (whether
pursuant to a merger or consolidation or
otherwise) any other shares of the Company,
then the holder of each share of Series C
Stock shall be entitled to receive, upon the
conversion of such share, the number of
shares of the Company which he would have
owned or have been entitled to receive after
the happening of any of the events described
above had such share been converted
immediately prior to the happening of such
event. Such adjustment shall be made
whenever any of the events listed above
shall occur. An adjustment made pursuant to
this subclause (B)(1) shall become effective
retroactively with respect to conversions
made subsequent to the record date in the
case of a
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dividend and shall become effective
immediately after the effective date in the
case of a subdivision, combination or
reclassification;
(2) In case the Company shall issue rights
or warrants to the holders of its Common
Stock as such entitling them to subscribe
for a purchase Common Stock at a price per
share less than the current market price per
share (as defined in subclause (C) below) on
such record date, then in each such case the
number of shares of Common Stock into which
each share of Series C Stock shall
thereafter be convertible shall be
determined by multiplying the number of
shares of Common Stock into which such share
of Series C Stock was theretofore
convertible by a fraction, of which the
numerator shall be the number of shares of
Common Stock outstanding on the date of
issuance of such rights or warrants plus the
number of additional shares of Common Stock
offered for subscription or purchase, and of
which the denominator shall be the number of
shares of Common Stock outstanding on the
date of issuance of such rights or warrants
plus the number of shares of Common Stock
which the aggregate offering price of the
total number of shares so offered would
purchase at such current market price. For
the purposes of this subclause (B)(2), the
issuance of rights or warrants to subscribe
for or purchase securities convertible into
shares of Common Stock shall be deemed to be
the issuance of rights or warrants to
purchase the shares of Common Stock into
which such securities are convertible at an
aggregate offering price equal to the
aggregate offering price of such securities
plus the minimum aggregate amount (if any)
payable upon conversion of such securities
into shares of Common Stock. Such adjustment
shall be made whenever any such rights or
warrants are issued and shall become
effective retroactively with respect to
conversions made subsequent to the record
date for the determination of shareholders
entitled to receive such rights or warrants.
For purposes of this subclause (B)(2) the
granting of the right to purchase shares of
Common Stock (whether from treasury shares
or otherwise) pursuant to any dividend or
interest reinvestment plan and/or any Common
Stock purchase plan providing
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for the reinvestment of dividends or
interest payable on securities of the
Company and/or the investment of periodic
optional payments at a price per share of
not less than 95 percent of the current
market price per share (determined as
provided in such plans) of the Common Stock
(so long as such right to purchase is in no
case evidenced by the delivery of rights and
warrants) shall not be deemed to constitute
an issue of rights or warrants by the
Company within the meaning of this subclause
(B)(2); and
(3) In case the Company shall distribute to
holders of its shares of Common Stock
(whether pursuant to a merger or
consolidation or otherwise) evidences of its
indebtedness or assets (excluding cash
distributions after December 31, 1979 not
exceeding (x) $100,000,000 plus (y) the
aggregate net income of the Company and its
subsidiaries on a consolidated basis after
such date determined in accordance with
generally accepted accounting principals,
less (z) dividends paid after such date on
shares other than shares of Common Stock) or
rights to subscribe (excluding those
referred to in subclause (B)(2) above) then
in each such case the number of shares of
Common Stock into which each share of Series
C Stock shall thereafter be convertible
shall be determined by multiplying the
number of shares of Common Stock into which
such share of Series C Stock was theretofore
convertible by a fraction, of which the
numerator shall be the current market price
per share of Common Stock (as defined in
subclause (C) below) on the record date for
determination of shareholders entitled to
receive such distribution, and of which the
denominator shall be such current market
price per share of Common Stock less the
fair value (as determined by a resolution of
the Board of Directors of the Company filed
with each transfer agent for the Series C
Stock, which determination shall be
conclusive) of the portion of the evidences
of indebtedness or assets or rights to
subscribe applicable to one share of Common
Stock. Such adjustment shall be made
whenever any such distribution is made and
shall become effective retroactively with
respect to conversions made subsequent to
the record date for the determination of
stockholders entitled to receive such
distribution.
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(C) For the purpose of any computation under
subclause (B) above, the current market price per
share of Common Stock on any date shall be deemed to
be the average of the daily Closing Prices for 30
consecutive Trading Days selected by the Company
commencing not more than 45 Trading Days before the
date in question. The term "Closing Price" on any day
shall mean the reported last sale price per share of
Common Stock regular way on such day or, in case no
such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in
each case on the New York Stock Exchange or, if the
shares of Common Stock are not listed or admitted to
trading on such Exchange, on the American Stock
Exchange or, if the shares of Common Stock are not
listed or admitted to trading on such Exchange, the
principal national securities exchange on which the
shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock are not
listed or admitted to trading on any national
securities exchange, the average of the closing bid
and asked prices in the over-the-counter market as
reported by the National Association of Securities
Dealers' Automated Quotation System, or, if not so
reported, as reported by the National Quotation
Bureau, Incorporated, or any successor thereof, or,
if not so reported, the average of the closing bid
and asked prices as furnished by any member of the
National Association of Securities Dealers, Inc.
selected from time to time by the Company for that
purpose; and the term "Trading Day" shall mean a day
on which the principal national securities exchange
on which the shares of Common Stock are listed or
admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not
listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday,
Thursday or Friday on which banking institutions in
the Borough of Manhattan, City and State of New York,
are not authorized or obligated by law or executive
order to close.
(D) No adjustment in the conversion rate shall be
required unless such adjustment (plus any adjustments
not previously made by reason of this subclause (D))
would require an increase or decrease of at least 1%
in the number of shares of Common Stock into which
each share of Series C Stock is then convertible;
provided, however, that any adjustments which by
reason of this subclause (D) are not required to be
made shall be carried forward and taken into account
in any
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subsequent adjustment. All calculations under this
clause (viii) of paragraph 8 shall be made to the
nearest one hundred thousandth of a share.
(E) The Board of Directors may make such increases in
the conversion rate, in addition to those required by
this clause (viii) of paragraph 8, as shall be
determined by the Board, as evidenced by a Board
resolution, to be advisable in order to avoid
taxation so far as practicable of any dividend of
stock or stock rights or any event treated as such
for Federal income tax purposes to the recipients.
The Board shall have the power to resolve any
ambiguity or correct any error in this clause (viii)
of paragraph 8 and its actions in so doing, as
evidenced by a Board resolution, shall be final and
conclusive.
(F) In the event that at any time, as a result of an
adjustment made pursuant to subclause (B)(1) above,
the holder of any shares of Series C Stock thereafter
surrendered for conversion shall become entitled to
receive any shares of capital stock of the Company
other than shares of Common Stock, thereafter the
number of shares so receivable upon conversion of
such shares of Series C Stock shall be subject to
adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions
with respect to the shares of Common Stock contained
in subclauses (B)(1) to (B)(3), inclusive, above, and
the other provisions of this clause (viii) of
paragraph 8 with respect to the shares of Common
Stock shall apply on like terms to any such other
shares.
(G) Whenever the conversion rate is adjusted as
herein provided:
(1) The Company shall compute the adjusted
conversion rate and shall cause to be
prepared a certificate signed by the
Company's treasurer setting forth the
adjusted conversion rate and a brief
statement of the facts requiring such
adjustment and the computation thereof; such
certificate shall forthwith be filed with
each transfer agent for the Series C Stock;
and
(2) A notice stating that the conversion
rate has been adjusted and setting forth the
adjusted conversion rate shall, as soon as
practicable, be
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mailed to the holders of record of
outstanding shares of the Series C Stock.
(H) In case:
(1) The Company shall declare a dividend or
other distribution on its Common Stock,
other than in cash;
(2) The Company shall authorize the issuance
to all holders of its Common Stock of rights
or warrants entitling them to subscribe for
or purchase any Common Stock or any other
subscription rights or warrants; or
(3) Of any reclassification of the capital
stock of the Company (other than a
subdivision or combination of its
outstanding Common Stock), or of any
consolidation or merger to which the Company
is a party and for which approval of any
shareholders of the Company is required, or
of the sale, lease, exchange or other
disposition of all or substantially all the
property and assets of the Company; or
(4) Of the voluntary or involuntary
liquidation, dissolution or winding up of
the Company; then the Company shall cause to
be mailed to each transfer agent for the
Series C Stock and to the holders of record
of the outstanding shares of Series C Stock,
at least 20 days (or 10 days in any case
specified in subclauses (H)(1) or (H)(2)
above) prior to the applicable record or
effective date hereinafter specified, a
notice stating (x) the date as of which the
holders of record of Common Stock to be
entitled to such dividend, distribution
rights or warrants are to be determined, or
(y) the date on which such reclassification,
consolidation, merger, sale, lease,
exchange, disposition, liquidation,
dissolution or winding up is expected to
become effective, and the date as of which
it is expected that holders of record of
Common Stock shall be entitled to exchange
their shares for securities or other
property, if any, deliverable upon such
reclassification, consolidation, merger,
sale, lease, exchange, disposition,
liquidation, dissolution or winding up. The
failure to give the notice required by this
subclause (H), or any defect therein, shall
not affect the legality or validity of
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any such dividend, distribution, right,
warrant, reclassification, consolidation,
merger, sale, lease, exchange, disposition,
liquidation, dissolution or winding up, or
the vote on any action authorizing such.
(I) The Company shall at all times reserve and keep
available out of its authorized but unissued Common
Stock, for the purpose of issuance upon conversion of
the Series C Stock, the full number of shares of
Common Stock then deliverable upon the conversion of
all shares of Series C Stock then outstanding.
(J) The Company will pay any and all taxes that may
be payable in respect of the issuance or delivery of
shares of Common Stock on conversion of shares of
Series C Stock. The Company shall not, however, be
required to pay any tax which may be payable in
respect of any transfer involved in the issuance and
delivery of shares of Common Stock in a name other
than that in which the shares of Series C Stock so
converted were registered, and no such issuance or
delivery shall be made unless and until the person
requesting such issuance has paid to the Company the
amount of any such tax or has established to the
satisfaction of the Company that such tax has been
paid.
(K) For the purpose of this clause (viii) of
paragraph 8, the term "Common Stock" shall include
any shares of the Company of any class or series
which has no preference or priority in the payment of
dividends or in the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to
redemption by the Company. However, shares of Common
Stock issuable upon conversion of Series C Stock
shall include only shares of the class designated as
Common Stock as of the original date of issuance of
the Series C Stock, or shares of the Company of any
classes or series resulting from any reclassification
or reclassifications thereof and which have no
preference or priority in the payment of dividends or
in the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption
by the company, provided that if at any time there
shall be more than one such resulting class or
series, the shares of such class and series then so
issuable shall be substantially in the proportion
which the total number of
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shares of such class and series resulting from all
such reclassifications bears to the total number of
shares of all such classes and series resulting from
all such reclassifications.
(L) No fractional shares or scrip representing
fractional shares shall be issued upon the conversion
of Series C Stock. If any such conversion would
otherwise require the issuance of a fractional share,
an amount equal to such fraction multiplied by the
Closing Price (determined as provided in subclause
(C) above) of the Common Stock on the day of
conversion shall be paid to the holder in cash by the
Company.
(M) The certificate of any independent firm of public
accountants of recognized standing selected by the
Board of Directors shall be presumptive evidence of
the correctness of any computation made under this
clause (viii) of paragraph 8.
9. $3.50 Cumulative Convertible Preferred Stock, Series
D.
(i) The distinctive serial designation of the fourth series of
Series Preferred Stock, which shall be a closed series, shall
be "$3.50 Cumulative Convertible Preferred Stock, Series D ($1
par value)" (hereinafter called "Series D Stock").
(ii) The number of shares of Series D Stock shall be
2,200,000.
(iii) The annual rate of dividends payable on shares of Series
D Stock shall be $3.50 per year and no more, payable quarterly
on the last day of March, June, September and December in each
year with respect to the quarterly dividend period (or portion
thereof) ending on such dividend payment date; provided,
however, that in the case of any shares of Series D Stock
issued prior to December 31, 1986, the first dividend payment,
which shall be of dividends accrued since November 21, 1986
shall be made on March 31, 1987.
(iv) Dividends on the shares of Series D Stock shall be
cumulative from November 21, 1986. The holders of Series D
Stock, in preference to the holders of any junior stock, shall
be entitled to receive, as and when declared by the Board of
Directors out of any funds legally available therefor, cash
dividends at the rate fixed in clause (iii) of this paragraph
9. The term "junior stock" as used herein means Common Stock
or any other stock of the
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Company which by its terms is junior to Series Preferred Stock
in respect of dividends or payments in liquidation.
In no event, so long as any shares of Series D Stock shall be
outstanding, shall any dividend, whether in cash or property,
be paid or declared, nor shall any other distribution be
ordered or made, on junior stock, nor shall any shares of any
capital stock of the Company be purchased, redeemed or
otherwise acquired for value by the Company or by any
subsidiary of the Company, unless all dividends on Series D
Stock for all past quarterly dividend periods and, in the case
of a dividend or distribution, for the then current quarterly
period, shall have been paid or declared and a sum sufficient
for the payment thereof set apart. The provisions of this
clause (iv) shall not however, apply to a dividend payable in
any junior stock, to the acquisition of shares of any junior
stock in exchange for shares of any other junior stock or to
the acquisition of shares of capital stock other than junior
stock pursuant to a tender offer made on a pro rata basis for
all shares of capital stock of the Company other than junior
stock (based on the aggregate involuntary liquidation value of
each series of such capital stock outstanding).
(v) In the event of any voluntary liquidation, dissolution or
winding up of the affairs of the Company, then before any
distribution or payment shall be made to the holders of any
junior stock, the holders of Series D Stock shall be entitled
to be paid in full the redemption price in effect at the time
of the distribution or payment date as provided in clause (vi)
of this paragraph 9 (and if prior to January 2, 1990, then at
the redemption price in effect on January 2, 1990), together
with accrued dividends to such distribution or payment date,
whether or not earned or declared. In the event of any
involuntary liquidation, dissolution or winding up of the
affairs of the Company, then, before any distribution or
payment shall be made to the holders of any junior stock, the
holders of Series D Stock shall be entitled to be paid in full
an amount equal to $50 per share, together with accrued
dividends to such distribution or payment date, whether or not
earned or declared.
(vi) Series D Stock may be redeemed, as a whole or in part, at
the option of the Company by vote of its Board of Directors,
at any time or from time to time, on or after January 2, 1990,
at the redemption price in effect at the redemption date as
provided in this clause (vi), together with accrued dividends
to the redemption date, whether or not earned or declared. The
redemption prices per share for shares of Series D Stock
redeemed at any time during the twelve month periods indicated
shall be as follows:
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12 MONTHS 12 MONTHS
BEGINNING BEGINNING
JANUARY 1 PRICE JANUARY 1 PRICE
1990 $52.45 1994 $51.05
1991 52.10 1995 50.70
1992 51.75 1996 50.35
1993 51.40
and $50 per share thereafter.
The provisions of paragraph 5 of this section (a) of Article
FOURTH applicable to redemption of all Series Preferred Stock
shall apply to Series D Stock, provided that, in addition, in
the case of any redemption of Series D Stock the Company shall
deposit, before the redemption date, with a bank or trust
company in the Borough of Manhattan, City of New York, having
a capital and surplus of at least $25,000,000, funds necessary
for such redemption, in trust, to be applied to such
redemption and the amounts shall be made payable at the office
of such bank or trust company.
(vii) The holders of Series D Stock shall be entitled to vote
only as hereinafter provided and as provided in paragraph 3 of
this section (a) of Article FOURTH. Each stockholder of Series
D Stock entitled to vote at any particular time shall have one
vote for each share of Series D Stock held of record by him
and entitled to voting rights.
So long as any shares of Series D Stock are outstanding, in
addition to any other vote or consent of stockholders required
in this Certificate of Incorporation or by law, the approval
of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of Series D Stock at the time outstanding shall be
necessary for effecting or validating:
(A) any amendment, alteration or repeal of any of the
provisions of the Certificate of Incorporation, or of
the By-Laws, of the Company, which affects adversely
the voting powers or any other rights or preferences
of the holders of Series D Stock;
(B) authorization or creation of any class of stock
of the Company ranking prior to or on a parity with
Series Preferred Stock in respect of dividends or
payments in liquidation, or any increase in the
number of authorized shares of Series Preferred
Stock;
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(C) any merger, consolidation, sale of assets or
other transaction the effect of which, in any such
case, is to accomplish an event otherwise requiring
approval by holders of 66-2/3% of Series D Stock
under this clause (vii).
(viii) (A) Subject to the provisions for adjustment
hereinafter set forth, each share of Series D Stock
shall be convertible at the option of the holder
thereof, upon surrender at the principal office of
the Company and at such other office or offices as
the Board of Directors may designate, of the
certificate for the share so to be converted, duly
endorsed or assigned to the Company in blank, into
0.909 fully paid and nonassessable shares of Common
Stock of the Company. The right to convert shares of
Series D Stock called for redemption shall terminate
at the close of business on the date fixed for
redemption. Upon conversion, no allowance or
adjustment shall be made for dividends on either
class of stock, except to the extent set forth in the
next paragraph.
Any holder of shares of Series D Stock desiring to
convert such shares into shares of Common Stock shall
surrender the certificate or certificates for the
shares of Series D Stock being converted, duly
endorsed or assigned to the Company or in blank, at
the principal office of the Company or at a bank or
trust company appointed by the Company for that
purpose, accompanied by a written notice of
conversion specifying the number (in whole shares) of
shares of Series D Stock to be converted and the name
or names in which such holder wishes the certificate
or certificates for shares of Common Stock to be
issued; in case such notice shall specify a name or
names other than that of such holder, such notice
shall be accompanied by payment of all transfer taxes
payable upon the issue of shares of Common Stock in
such name or names. In case less than all of the
shares of Series D Stock represented by a certificate
are to be converted by a holder, upon such conversion
the Company shall issue and deliver or cause to be
issued and delivered to such holder a certificate or
certificates for the shares of Series D Stock not so
converted. A holder of Series D Stock on a dividend
record date who (or whose transferee) converts Series
D Stock on a dividend payment date will be entitled
to receive and retain the dividend payable on such
Series D Stock. A holder of Series D Stock at the
close of business on a dividend record date will be
entitled to receive the dividend payable on such
Series D Stock on the corresponding dividend payment
date notwithstanding the
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conversion thereof or the Company's default in
payment of the dividend due on the dividend payment
date, but Series D Stock surrendered for conversion
during the period from the close of business on any
dividend record date to the opening of business on
the corresponding dividend payment date (except
Series D Stock called for redemption on a redemption
date during such period) must be accompanied by
payment to the Company of an amount equal to the
dividend payable on such dividend payment date. A
holder of Series D Stock called for redemption on a
redemption date between a dividend record date and
the corresponding dividend payment date who (or whose
transferee) convert such Series D Stock will be
entitled to receive such dividend and need not repay
the dividend upon surrender of such Series D Stock
for conversion.
(B) The number of shares of Common Stock and the
number of any other shares of the Company, if any,
into which each share of Series D Stock is
convertible shall be adjusted from time to time as
follows:
(1) In case the Company shall (x) pay a
dividend on its Common Stock in other
shares, (y) subdivide its outstanding Common
Stock or (z) combine its outstanding Common
Stock into a smaller number of shares of
Common Stock, or issue by reclassification
of its shares of Common Stock (whether
pursuant to a merger or consolidation or
otherwise) any other shares of the Company,
then the holder of each share of Series D
Stock shall be entitled to receive, upon the
conversion of such share, the number of
shares of the Company which he would have
owned or have been entitled to receive after
the happening of any of the events described
above had such share been converted
immediately prior to the happening of such
event. Such adjustment shall be made
whenever any of the events listed above
shall occur. An adjustment made pursuant to
this subclause (B)(1) shall become effective
retroactively with respect to conversions
made subsequent to the record date in the
case of a dividend and shall become
effective immediately after the effective
date in the case of a subdivision,
combination or reclassification;
(2) In case the Company shall issue rights
or warrants to the holders of its Common
Stock as such
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entitling them to subscribe for or purchase
Common Stock at a price per share less than
the current market price per share (as
defined in subclause (c) below) on such
record date, then in each such case the
number of shares of Common Stock into which
each share of Series D Stock shall
thereafter be convertible shall be
determined by multiplying the number of
shares of Common Stock into which such share
of Series D Stock was theretofore
convertible by a fraction, of which the
numerator shall be the number of shares of
Common Stock outstanding on the date of
issuance of such rights or warrants plus the
number of additional shares of Common Stock
offered for subscription or purchase, and of
which the denominator shall be the number of
shares of Common Stock outstanding on the
date of issuance of such rights or warrants
plus the number of shares of Common Stock
which the aggregate offering price of the
total number of shares so offered would
purchase at such current market price. For
the purposes of this subclause (B)(2), the
issuance of rights or warrants to subscribe
for or purchase securities convertible into
shares of Common Stock shall be deemed to be
the issuance of rights or warrants to
purchase the shares of Common Stock into
which such securities are convertible at an
aggregate offering price equal to the
aggregate offering price of such securities
plus the minimum aggregate amount (if any)
payable upon conversion of such securities
into shares of Common Stock. Such adjustment
shall be made whenever any such rights or
warrants are issued and shall become
effective retroactively with respect to
conversions made subsequent to the record
date for the determination of shareholders
entitled to receive such rights or warrants.
For purposes of this subclause (B)(2) the
granting of the right to purchase shares of
Common Stock (whether from treasury shares
or otherwise) pursuant to any dividend or
interest reinvestment plan and/or any Common
Stock purchase plan providing for the
reinvestment of dividends or interest
payable on securities of the Company and/or
the investment of periodic optional payments
at a price per share of not less than 95
percent of the current market price per
share (determined as provided in such plans)
of the Common Stock (so long as such right
to purchase is
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in no case evidenced by the delivery of
rights and warrants) shall not be deemed to
constitute an issue of rights or warrants by
the Company within the meaning of this
subclause (B)(2); and
(3) In case the Company shall distribute to
holders of its shares of Common Stock
(whether pursuant to a merger or
consolidation or otherwise) evidences of its
indebtedness or assets (excluding cash
distributions) or rights to subscribe
(excluding those referred to in subclause
(B)(2) above) then in each such case the
number of shares of Common Stock into which
each share of Series D Stock shall
thereafter be convertible shall be
determined by multiplying the number of
shares of Common Stock into which such share
of Series D Stock was theretofore
convertible by a fraction, of which the
numerator shall be the current market price
per share of Common Stock (as defined in
subclause (C) below) on the record date for
determination of shareholders entitled to
receive such distribution, and of which the
denominator shall be such current market
price per share of Common Stock on the date
fixed for such determination less the fair
value (as determined by a resolution of the
Board of Directors of the Company filed with
each transfer agent for the Series D Stock,
which determination shall be conclusive) of
the portion of the evidences of indebtedness
or assets or rights to subscribe applicable
to one share of Common Stock. Such
adjustment shall be made whenever any such
distribution is made and shall become
effective retroactively with respect to
conversions made subsequent to the record
date for the determination of stockholders
entitled to receive such distribution.
(C) For the purpose of any computation under
subclause (B) above, the current market price per
share of Common Stock on any date shall be deemed to
be the average of the daily Closing Prices for 30
consecutive Trading Days selected by the Company
commencing not more than 45 Trading Days before the
date in question. The term "Closing Price" on any day
shall mean the reported last sale price per share of
Common Stock regular way on such day or, in case no
such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in
each case as reported on the New York Stock Exchange
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Composite Transactions or, if the shares of Common
Stock are not listed or admitted to trading on such
Exchange, on the American Stock Exchange or, if the
shares of Common Stock are not listed or admitted to
trading on such Exchange, the principal national
securities exchange on which the shares of Common
Stock are listed or admitted to trading or, if the
shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the
average of the closing bid and asked prices in the
over-the-counter market as reported by the National
Association of Securities Dealers' Automated
Quotation System, or, if not so reported, as reported
by the National Quotation Bureau, Incorporated, or
any successor thereof, or, if not so reported, the
average of the closing bid and asked prices as
furnished by any member of the National Association
of Securities Dealers, Inc. selected from time to
time by the Company for that purpose; and the term
"Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of
Common Stock are listed or admitted to trading is
open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to
trading on any national securities exchange, a
Monday, Tuesday, Wednesday, Thursday or Friday on
which banking institutions in the Borough of
Manhattan, City and State of New York, are not
authorized or obligated by law or executive order to
close.
(D) No adjustment in the conversion rate shall be
required unless such adjustment (plus any adjustments
not previously made by reason of this subclause (D))
would require an increase or decrease of at least 1%
in the number of shares of Common Stock into which
each share of Series D Stock is then convertible;
provided, however, that any adjustments which by
reason of this subclause (D) are not required to be
made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under
this clause (viii) of paragraph 9 shall be made to
the nearest one-hundred thousandth of a share.
(E) In the event that at any time, as a result of an
adjustment made pursuant to subclause (B)(1) above,
the holder of any shares of Series D Stock thereafter
surrendered for conversion shall become entitled to
receive any shares of capital stock of the Company
other than shares of Common Stock, thereafter the
number of shares so receivable upon conversion of
such shares of Series D
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Stock shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the
shares of Common Stock contained in subclauses (B)(1)
to (B)(3), inclusive, above, and the other provisions
of this clause (viii) of paragraph 9 with respect to
the shares of Common Stock shall apply on like terms
to any such other shares.
(F) The Company may, but shall not be required to,
make such increases in the conversion rate, in
addition to those required by this clause (viii) of
paragraph 9 as it considers to be advisable in order
to avoid or diminish any income tax to any holder of
shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or
for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error
in this clause (viii) of paragraph 9 and its actions
in so doing shall be final and conclusive.
(G) In case the Company shall effect any capital
reorganization of the Common Stock (other than a
subdivision, combination, capital reorganization or
reclassification provided for in paragraph (B)) or
shall consolidate, merge or engage in a statutory
share exchange with or into any other corporation
(other than a consolidation, merger or share exchange
in which the Company is the surviving corporation and
each share of Common Stock outstanding immediately
prior to such consolidation or merger is to remain
outstanding immediately after such consolidation or
merger) or shall sell or transfer all or
substantially all its assets to any other
corporation, lawful provision shall be made as a part
of the terms of such transaction whereby the holders
of shares of Series D Stock shall receive upon
conversion thereof, in lieu of each share of Common
Stock which would have been issuable upon conversion
of such shares if converted immediately prior to the
consummation of such transaction, the same kind and
amount of stock (or other securities, cash or
property, if any) as may be issuable or distributable
in connection with such transaction with respect to
each share of Common Stock outstanding at the
effective time of such transaction, subject to
subsequent adjustments for subsequent stock dividends
and distributions, subdivisions or combinations of
shares, capital reorganizations, reclassifications,
consolidations,
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mergers or share exchanges, as nearly equivalent as
possible to the adjustments provided for in this
clause (viii) of paragraph 9.
(H) Whenever the conversion rate is adjusted as
herein provided:
(1) The Company shall compute the adjusted
conversion rate and shall cause to be
prepared a certificate signed by the
Company's treasurer setting forth the
adjusted conversion rate and a brief
statement of the facts requiring such
adjustment and the computation thereof; such
certificate shall forthwith be filed with
each transfer agent for the Series D Stock;
and
(2) A notice stating that the conversion
rate has been adjusted and setting forth the
adjusted conversion rate shall, as soon as
practicable, be mailed to the holders of
record of outstanding shares of the Series D
Stock.
(I) In case:
(1) The Company shall declare a dividend or
other distribution on its Common Stock,
other than in cash;
(2) The Company shall authorize the issuance
to all holders of its Common Stock of rights
or warrants entitling them to subscribe for
or purchase any Common Stock or any other
subscription rights or warrants; or
(3) Of any reclassification of the capital
stock of the Company (other than a
subdivision or combination of its
outstanding Common Stock), or of any
consolidation or merger to which the Company
is a party and for which approval of any
shareholders of the Company is required, or
of the sale, lease, exchange or other
disposition of all or substantially all the
property and assets of the Company; or
(4) Of the voluntary or involuntary
liquidation, dissolution or winding up of
the Company;
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then the Company shall cause to be mailed to each
transfer agent or for the Series D Stock and to the
holders of record of the outstanding shares of Series
D Stock, at least 20 days (or 10 days in any case
specified in subclauses (I)(1) or (I)(2) above) prior
to the applicable record or effective date
hereinafter specified, a notice stating (x) the date
as of which the holders of record of Common Stock to
be entitled to such dividend, distribution, rights or
warrants are to be determined, or (y) the date on
which such reclassification, consolidation, merger,
sale, lease, exchange, disposition, liquidation,
dissolution or winding up is expected to become
effective, and the date as of which it is expected
that holders of record of Common Stock shall be
entitled to exchange their shares for securities or
other property, if any, deliverable upon such
reclassification, consolidation, merger, sale, lease,
exchange, disposition, liquidation, dissolution or
winding up. The failure to give the notice required
by this subclause (I), or any defect therein, shall
not affect the legality or validity of any such
dividend, distribution, right, warrant,
reclassification, consolidation, merger, sale, lease,
exchange, disposition, liquidation, dissolution or
winding up, or the vote on any action authorizing
such.
(J) The Company shall at all times reserve and keep
available out of its authorized but unissued Common
Stock, or Common Stock held as treasury shares, or a
combination of both, for the purpose or issuance upon
conversion of the Series D Stock, the full number of
shares of Common Stock then deliverable upon the
conversion of all shares of Series D Stock then
outstanding.
(K) For the purpose of this clause (viii) of
paragraph 9, the term "Common Stock" shall include
any shares of the Company of any class or series
which has no preference or priority in the payment of
dividends or in the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to
redemption by the Company. However, shares of Common
Stock issuable upon conversion of Series D Stock
shall include only shares of the class designated as
Common Stock as of the original date of issuance of
the Series D Stock, or shares of the Company of any
classes or series resulting from any reclassification
or reclassifications thereof and which have no
preference or priority in the payment of dividends or
in the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or
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winding up of the Company and which are not subject
to redemption by the Company, provided that if at any
time there shall be more than one such resulting
class or series, the shares of such class and series
then so issuable shall be substantially in the
proportion which the total number of shares of such
class and series, resulting from all such
reclassifications bears to the total number of shares
of all such classes and series resulting from all
such reclassifications.
(L) No fractional shares or scrip representing
fractional shares shall be issued upon the conversion
of Series D Stock. If any such conversion would
otherwise require the issuance of a fractional share,
an amount equal to such fraction multiplied by the
Closing Price (determined as provided in subclause
(C) above) of the Common Stock on the day of
conversion shall be paid to the holder in cash by the
Company.
(M) The certificate of any independent firm of public
accountants of recognized standing selected by the
Board of Directors shall be presumptive evidence of
the correctness of any computation made under this
clause (viii) of paragraph 9.
(ix) Shares of Series D Preferred Stock which are called for
redemption as hereinabove provided, but which shall be
converted into Common Stock as hereinabove provided prior to
their actual redemption, shall not be deemed to have been
redeemed for the purposes of this Article FOURTH.
10. Cumulative Participating Preferred Stock, Series E.
Section 1. Designation and Amount. There shall be a series of the Series
Preferred Stock of the Company which shall be designated as the "Cumulative
Participating Preferred Stock, Series E ($1 par value)" ("Series E Stock"), and
the number of shares constituting such series shall be 350,000. 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 E 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 Company
Section 2. Dividends and Distributions.
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(A) The holders of shares of Series E Stock, in preference to the
holders of shares of Common Stock, $5.00 par value (the "Common Stock"), of the
Company, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the last day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series E Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00, or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 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 Payable 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 E Stock. In the event the Company 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 to which holders of shares of Series E Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series
E 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 $1.00 per share on the Series E 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 E Stock from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares of Series E 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 E Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date in either of which events such
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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 E 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.
Section 3. Voting Rights. The holders of shares of Series E Stock shall have the
following voting rights:
(A) Each share of Series E Stock shall entitle the holder thereof to
one hundred votes, subject to adjustment as provided in paragraph B below, on
all matters submitted to a vote of the shareholders of the Company.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series E Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of shareholders of the
Company. In the event the Company 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 number
of votes to which holders of shares of Series E Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(C) Notwithstanding paragraph A above, each holder of Series E Stock
when voting as a class with the holders of all cumulative series of Series
Preferred Stock for the election of two members of the Board of Directors when
six (6) quarterly dividends on any one or more series of Series Preferred Stock
entitled to receive cumulative dividends shall be in default as provided in
paragraph 3 of Article FOURTH shall have one vote for each share of Series E
Stock held of record.
(D) Except as set forth herein, holders of Series E Stock shall have no
special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series E Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not
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declared, on shares of Series E Stock outstanding shall have been paid in full,
the Company 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 E 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 E Stock, except dividends paid
ratably on the Series E 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; or
(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 E Stock, provided that the Company may at
any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series E Stock;
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series E Stock purchased or
otherwise acquired by the Company in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. The Company shall cause all
such shares upon their cancellation to become authorized but unissued shares of
Preferred Stock which may be reissued as part of a new series of Preferred
Stock, subject to the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Company, 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 E Stock unless, prior thereto, the
holders of shares of Series E Stock shall have received $20,000 per share, plus
an amount equal to
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accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series E Liquidation Preference"). Following
the payment of the full amount of the Series E Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series E
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 E Liquidation Preference by (ii) 100 (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 E Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of Series E Stock
and Common Stock, respectively, holders of Series E 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 E Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if any, which rank on a
parity with the Series E 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 Company 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 7. Consolidation, Merger, etc. In case the Company 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 E 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 100
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Company shall at any time
after the Rights Declaration Date (i) declare any dividend on Common Stock
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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 E 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 8. Redemption. The shares of Series E Stock shall not be redeemable.
Section 9. Amendment. The Certificate of Incorporation of the Company shall not
be further amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series E Stock so as to affect them
adversely without the affirmative vote of the holders of a majority of the
outstanding shares of Series E Stock, voting separately as a class.
Section 10. Fractional Shares. Series E Stock may be issued in fractions of a
share which shall entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series
E. Stock.
(b) Common Stock
1. Issuance: From time to time Common Stock may be issued in
such amounts and for such purposes as shall be determined by
the Board of Directors.
2. Dividends: Subject to all the rights of the Series
Preferred Stock, such dividends as may be determined by the
Board of Directors may be declared and paid on the Common
Stock from time to time out of the surplus of the Company
legally available for the payment of dividends. The Board of
Directors shall, however, have power from time to time to fix
and determine and to vary the amount of the working capital of
the Company, and to direct and determine the use and
disposition of any surplus of the Company.
3. Voting Rights: Except as otherwise expressly provided with
respect to the Series Preferred Stock or with respect to any
series of the Series Preferred Stock, the Common Stock shall
have the exclusive right to vote for the election of directors
and for all other purposes, each holder of the Common Stock
being entitled to one vote for each share thereof held.
4. Liquidation: Upon any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, and after
the
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holders of the Series Preferred Stock of each series shall
have been paid in full the amounts to which they respectively
shall be entitled, or an amount sufficient to pay the
aggregate amount to which the holders of the Series Preferred
Stock of each series shall be entitled shall have been
deposited with a bank or trust company having its principal
office in the Borough of Manhattan, the City of New York, and
having a capital, surplus and undivided profits of at least
Twenty-Five Million Dollars ($25,000,000) as a trust fund for
the benefit of the holders of such Series Preferred Stock, the
remaining net assets of the Company shall be distributed pro
rata to the holders of the Common Stock in accordance with
their respective rights and interests, to the exclusion of the
holders of the Series Preferred Stock.
(c) General Provisions
1. Shares of Series Preferred Stock of the Company redeemed as
hereinabove provided shall be deemed retired and extinguished
and may not be reissued.
2. A consolidation or merger of the Company with or into
another corporation or corporations or a sale, whether for
cash, shares of stock, securities or properties, of all or
substantially all of the assets of the Company shall not be
deemed or construed to be a liquidation, dissolution or
winding up of the Company within the meaning of this Article.
3. No stockholder of the Company shall be entitled, as such,
as a matter of right, to subscribe for or purchase any part of
any new or additional issue of stock of any class or series
whatsoever, any rights or options to purchase stock of any
class or series whatsoever, or any securities convertible into
any stock of any class or series whatsoever, whether now or
hereafter authorized, and whether issued for cash or other
consideration, or by way of dividend.
4. The Board of Directors may from time to time issue scrip in
lieu of fractional shares of stock. Such scrip shall not
confer upon the holder any right to dividends or any voting or
other rights of a stockholder of the Company, but the Company
shall from time to time, within such time as the Board of
Directors may determine or without limit of time if the Board
of Directors so determines, issue one or more whole shares of
stock upon the surrender of scrip for fractional shares
aggregating the number of whose shares issuable in respect of
the scrip so surrendered, provided that the scrip so
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surrendered shall be properly endorsed for transfer if in
registered form.
FIFTH - The name and post-office address of each of the incorporators
and original subscribers to the capital stock, and the number of shares of
Common Stock subscribed for by each, are as follows:
NUMBER
OF
POST-OFFICE SHARES
NAME ADDRESS
Bertram G. Work...................... Akron, Ohio....................... 18
Charles B. Raymond................. Akron, Ohio....................... 1
David M. Goodrich.................... New York, New York................ 1
20
Total
SIXTH - The duration of the Company shall be perpetual.
SEVENTH - the directors shall have power, amongst other things:
(a) 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 Company, or any of them,
shall be open to the inspection of stockholders; and no stockholder
shall have any right to inspect any book or account or document of the
Company except as conferred by the statutes of New York or authorized
by the directors;
(b) Subject to the provisions of the aforesaid Stock
Corporation Law, to hold their meetings either within or without the
State of New York, and to have one or more offices, and to keep the
books of the Company (except the stock and transfer books and correct
books of account of all its business and transactions) outside the
State of New York, and at such place or places, as may from time to
time be designated by them;
(c) To provide by the By-Laws, or otherwise, for the
selection, from among their own number, of an executive committee of
such number as they may from time to time designate, and to delegate to
such executive committee all or any of the powers of the Board of
Directors, when the Board is not in session, provided that such
delegation of power is not contrary to law;
(d) To appoint such other standing committees as they may
determine, with such powers as shall be conferred by them or as may be
authorized by the By-Laws; and
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(e) To appoint or elect officers and assistant officers of the
Company.
EIGHTH - The Secretary of State of the State of New York is designated
as the agent of the Company upon whom process in any action or proceeding
against it may be served within the State of New York. The address to which the
Secretary of State shall mail a copy of process in any action or proceeding
against the Company which may be served upon him is c/o CT Corporation System,
1633 Broadway, New York, New York 10009. The name and address of the registered
agent which is to be the agent of the Company upon whom process against it may
be served are, CT Corporation System, 1633 Broadway, New York, New York 10009.
NINTH - No contract or other transaction between the Company and any
other corporation shall be affected by the fact that the directors of this
Company are interested in or are directors or officers of such other
corporation, and any director individually may be a party to or may be
interested in any contract or transaction of this Company; and no contract or
transaction of this Company with any person or persons, firm or association
shall be affected by the fact that any director or directors of this Company is
a party to or interested in such contract or transaction, or in any way
connected with such person or persons, firm or association, provided that the
interest in any such contract or other transaction of any such director shall be
fully disclosed and that such contract or other transaction shall be authorized
or ratified by the vote of a sufficient number of directors of the Company not
so interested; and each and every person who may become a director of this
Company is hereby relieved from any liability that might otherwise exist from
contracting with the Company for the benefit of himself or any firm, association
or corporation in which he may be in any wise interested.
TENTH - Subject always to the By-Laws made by the stockholders, the
Board of Directors may make By-Laws, and, from time to time, may alter, amend or
repeal any By-Laws; but any By-Laws made by the Board of Directors may be
altered, amended or repealed by the stockholders at any annual meeting, or at
any special meeting provided notice of such proposed alteration or repeal be
included in the notice of meeting.
ELEVENTH - Transactions with Shareholders.
A. Certain Purchases of Company Shares. Any direct or indirect
purchase or other acquisition by the Company of any class of the
Company's shares from any person or persons known by the Company to be
an Interested Shareholder (as hereinafter defined) who has beneficially
owned, directly or indirectly, any such securities for less than two
years prior to the date of such purchase or any agreement in respect
thereof shall, except as hereinafter expressly provided, require the
approval of a majority of the non-officer-directors of the Company and
the affirmative
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vote, to be solicited at the expense of such Interested Shareholder, of
not less than a majority of the votes entitled to be cast by the
holders of all then outstanding shares of Voting Stock (as hereafter
defined), voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage of separate class vote may be
specified, by law or any other provision of this Certificate of
Incorporation or the By-Laws of this Company or otherwise.
Notwithstanding the foregoing, no such affirmative vote shall be
required with respect to:
(a) any offer to purchase made by the Company which is made on
the same terms and conditions to holders of all shares of the
same class of the Company,
(b) any purchase by the Company of its shares at a price no
higher than the higher of (i) the Closing Price (as
hereinafter defined) on the last trading date immediately
preceding the earlier of public disclosure of the repurchase
or the signing of a definitive repurchase agreement and (ii)
the average Closing Price during the 20 trading days
immediately preceding the date of such disclosure or
agreement.
The term "Closing Price" on the day in question means the
closing sale price on such day of a share of the Company's stock on the
Composite Tape for New York Stock Exchange-Listed Stocks, or, if the
stock is not quoted on the Composite Tape, on the New York Stock
Exchange, or if the stock is not listed on such Exchange, on the
principal United States Securities Exchange registered under the
Securities Exchange Act of 1934 in which the stock is listed, or if the
stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of the stock on the National
Association of Securities Dealers, Inc. Automated Quotations System or
any similar system then in use, or if no such quotations are available,
the market value of the stock as determined in good faith by a majority
of the non-officer-directors of the Company present at a meeting of the
Board of Directors at which a quorum is present.
B. Business combinations with Substantial Shareholders. In
addition to any affirmative vote required by law or this Certificate of
Incorporation or the By-Laws of the Company, and except as otherwise
expressly provided in Section C of this Article ELEVENTH, a Business
Combination (as hereinafter defined) shall require the affirmative vote
of not less than eighty percent (80%) of the votes entitled to be cast
by the holders of all then outstanding shares of Voting Stock (as
hereinafter defined), voting together as a single class. Such
affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a
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lesser percentage or separate class vote may be specified, by law or
any other provision of this Certificate of Incorporation or the By-Laws
of this Company or otherwise.
C. When Higher Vote is Not Required. The provisions of Section
B of this Article ELEVENTH shall not be applicable to any particular
Business Combination, and such Business Combination shall require only
such affirmative vote, if any, as is required by law or by any other
provision of this Certificate of Incorporation or the By-Laws of this
Company, if all of the conditions specified in either of the following
Paragraphs 1 or 2 are met:
1. Approval by Disinterested Directors. The Business
Combination shall have been recommended by a majority (whether
such recommendation is made prior to or subsequent to the
acquisition of beneficial ownership of the Voting Stock that
caused the Substantial Shareholder [as hereinafter defined] to
become a Substantial Shareholder) of the Disinterested
Directors (as hereinafter defined) present at a meeting of the
Board of Directors at which a quorum is present.
2. Price and Procedure Requirements. All of the following
conditions shall have been met:
a. The aggregate amount of cash and the Fair Market
Value (as hereinafter defined) as of the date of the
consummation of the Business Combination (the
"Consummation Date") of consideration other than cash
to be received per share by holders of Common Stock
in such Business Combination shall be at least equal
to the highest amount determined under clauses (i)
and (ii) below:
(i) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Substantial
Shareholder for any share of Common Stock in
connection with (A) the acquisition by the
Substantial Shareholder of beneficial
ownership of shares of Common Stock within
the period beginning two years immediately
prior to the first public announcement of
the proposed Business Combination (the
"Announcement Date") and terminating on the
Consummation Date, or (B) in the transaction
in which it became a Substantial
Shareholder, which ever is higher; and
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(ii) the fair Market Value per share of
Common Stock on the Announcement Date or on
the date on which the Substantial Shareholder
became a Substantial Shareholder (such latter
date the "Determination Date"), whichever is
higher.
b. The aggregate amount of cash, plus the Fair Market
Value as of the Consummation Date of consideration
other than cash, to be received per share by holders
of shares of any class or series of outstanding
Preferred Stock, shall be at least equal to the
highest amount determined under clauses (i), (ii) and
(iii) below);
(i) (if applicable) the highest per share
price including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Substantial
Shareholder for any share of such class or
series of Preferred Stock in connection with
the acquisition by the Substantial
Shareholder of beneficial ownership of
shares of such class or series of Preferred
Stock within the period beginning two years
immediately prior to the Announcement Date
and terminating on the Consummation Date, or
in the transaction in which it became a
Substantial Shareholder, whichever is
higher;
(ii) the Fair Market Value per share of such
Preferred Stock on the Announcement Date or
on the Determination Date, whichever is
higher; and
(iii) (if applicable) 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 Company, regardless of
whether the Business Combination to be
consummated constitutes such an event.
The provisions of Paragraphs C.2.a. and
C.2.b. shall be required to be met with respect to
every class or series of outstanding shares, whether
or not the Substantial Shareholder has previously
acquired beneficial ownership of any shares of a
particular class or series.
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c. The consideration to be received by holders of a
particular class or series of outstanding shares
shall be in cash or in the same form and in the same
relative proportion as previously has been paid by or
on behalf of the Substantial Shareholder or any
person referred to in Paragraph 6 of Section D of
this Article ELEVENTH in connection with its direct
or indirect acquisition of beneficial ownership of
shares of such class or series.
If the consideration so paid for shares of any class
or series varied as to form, the form of
consideration for such class or series of shares
shall be either cash or the form and in the same
relative proportion used to acquire beneficial
ownership of the largest number of shares of such
class or series previously acquired by the
Substantial Shareholder or any person referred to in
Paragraph 6 of Section D of this Article ELEVENTH.
The price determined in accordance with Paragraphs
(C).2.a. and (C).2.b. shall be subject to appropriate
adjustment in the event of any stock dividend, stock
split, reclassification of shares or similar event.
d. After such Substantial Shareholder has become a
Substantial Shareholder and prior to the consummation
of such Business Combination:
(i) except as recommended by a majority of
the Disinterested Directors present at a
meeting of the Board of Directors at which a
quorum is present, there shall have been no
failure to declare and pay at the regular
date therefor any full quarterly dividends
(whether or not cumulative) payable in
accordance with the terms of any outstanding
Preferred Stock;
(ii) there shall have been no reduction in
the annual rate of dividends paid on the
Common Stock (except as necessary to reflect
any stock split, stock dividend or
subdivision of the Common Stock), except as
recommended by a majority of the
Disinterested Directors present at a meeting
of the Board of Directors at which a quorum
is present;
(iii) there shall have been an increase in
the annual rate of dividends paid on the
Common Stock as necessary to reflect any
reclassification (including any reverse
stock split), recapitalization,
reorganization or any similar transaction
that has the
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effect of reducing the number of outstanding
shares of Common Stock, unless the failure
so to increase such annual rate is
recommended by a majority of the
Disinterested Directors present at a meeting
of the Board of Directors at which a quorum
is present.
e. After such Substantial Shareholder has become a
Substantial Shareholder, such Substantial Shareholder
shall not have received the benefit, directly or
indirectly (except as employee benefits or
proportionately as a shareholder of the Company), of
any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax
advantages provided by the Company, whether in
anticipation of or in connection with such Business
Combination or otherwise.
f. A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934
and the rules and regulations thereunder (the "Act")
(or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to all
shareholders of the Company 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). The proxy or information
statement shall contain on the first page thereof, in
a prominent place, any statement as to the
advisability (or inadvisability) of the Business
Combination that the Disinterested Directors, or any
of them, may choose to make and, if deemed advisable
by a majority of the Disinterested Directors, the
opinion of an investment banking firm selected by a
majority of such Disinterested Directors as to the
fairness (or lack of fairness) of the terms of the
Business Combination from a financial point of view
to the holders of the outstanding shares other than
the Substantial Shareholder and its Affiliates or
Associates (both terms as hereinafter defined), such
investment banking firm to be paid a reasonable fee
for its services by the Company.
g. Such substantial Shareholder shall not have made
any material change in the Company's business or
equity capital structure without the recommendation
of a majority of the Disinterested Directors present
at a meeting of the Board of Directors at which a
quorum is present.
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D. Certain Definitions. For the purposes of this Article
ELEVENTH:
1. The term "Business Combination" shall mean:
(a) any merger or consolidation of the Company or any
Subsidiary (as hereinafter defined) with (i) any
Substantial Shareholder or (ii) any other corporation
(whether or not itself a Substantial Shareholder)
which is or after such merger or consolidation would
be an Affiliate or Associate of a Substantial
Shareholder; or
(b) the adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed by
or on behalf of a Substantial Shareholder or any
Affiliate or Associate of any Substantial
Shareholder; or
(c) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or
a series of transactions) to or with any Substantial
Shareholder or any Affiliate or Associate of any
Substantial Shareholder involving any assets or
securities of the Company or any Subsidiary having an
aggregate Fair Market Value of $25,000,000 or more;
or
(d) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Company, or any merger or consolidation of the
Company with any of its Subsidiaries or any other
transaction (whether or not with or otherwise
involving a Substantial Shareholder) that has the
effect, directly or indirectly, of increasing the
proportionate share of any class or series, or any
securities convertible into shares or into equity
securities of any Subsidiary, that is beneficially
owned by any Substantial Shareholder or any Affiliate
or Associate of any Substantial Shareholder; or
(e) any agreement, contract or other arrangement
providing for any one or more of the actions
specified in the foregoing clauses (a) to (d).
2. The term "Voting Stock" shall mean all shares issued from
time to time under Article FOURTH of this Certificate of
Incorporation and which by its terms may be voted generally in
the election of directors of the Company (it being understood
that each share of Voting Stock shall have the number of votes
granted to it pursuant to Article FOURTH).
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3. 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 shares.
4. The term "interested Shareholder" shall mean any person
(other than the Company or any Subsidiary) who or which:
(a) is the beneficial owner (as hereinafter defined),
directly or indirectly, in the aggregate of three
percent (3%) or more of the class of securities to be
acquired; or
(b) is an Affiliate or Associate of the Company and
at any time within the two-year period immediately
prior to the date in question was the beneficial
owner, directly or indirectly, in the aggregate of
three percent (3%) or more of the class of securities
to be acquired; or
(c) is an assignee or has otherwise succeeded to any
shares of the class of securities to be acquired
which were at any time within the two-year period
immediately prior to the date in question
beneficially owned by an Interested Shareholder, if
such assignment or succession shall have occurred in
the course of a transaction or transactions not
involving a public offering within the meaning of the
Securities Act of 1933.
5. The term "Substantial Shareholder" shall mean any person
(other than the Company or any subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly,
in the aggregate of more than twenty percent (20%) of
the voting power of the outstanding Voting Stock; or
(b) is an Affiliate or Associate of the Company and
at any time within the two-year period immediately
prior to the date in question was the beneficial
owner, directly or indirectly, in the aggregate of
twenty percent (20%) or more of the voting power of
the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time
within the two-year period immediately prior to the
date in question beneficially owned by any
Substantial Shareholder, if such
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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.
6. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly;
or
(b) which such person or any of its Affiliates or
Associates has
(i) 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
(ii) the right to vote pursuant to any
agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly,
by any other person with which such person or any of
its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares
of Voting Stock.
7. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Paragraph 4 of this Section
D, or a Substantial Shareholder pursuant to Paragraph 5 of
this Section D, the number of shares of Voting Stock deemed to
be outstanding shall include all shares deemed owned by such
person through application of Paragraph 6 of this Section D
but shall not include any other shares of Voting Stock which
may be issuable to others pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
8. The terms "Affiliate" and "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 February 1, 1985.
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9. The term "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the Company; provided, however, that for the
purposes of the definition of a Substantial Shareholder set
forth in Paragraph 5 of this Section D, the term "Subsidiary"
shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by
the Company.
10. The term "Disinterested Director" means any member of the
Board of Directors of the Company who is unaffiliated with the
Substantial Shareholder and was a member of the Board of
Directors prior to the time that the Substantial Shareholder
became a Substantial Shareholder, and any successor of a
Disinterested Director who is unaffiliated with the
Substantial Shareholder and is recommended to succeed a
Disinterested Director by a majority of Disinterested
Directors then on the Board of Directors.
11. The term "Fair Market Value" means:
(a) in the case of cash, the amount of such cash;
(b) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding
the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or,
if such stock is not listed on such Exchange, on the
principal United States securities exchange
registered under the Securities Exchange Act of 1934
on which such stock is listed, or, if such stock is
not listed on any such exchange, 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
similar 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 Disinterested
Directors present at a meeting of the Board of
Directors at which a quorum is present; and
(c) in the case of 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 Disinterested Directors present at a meeting of
the Board of Directors at which a quorum is present.
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12. In the event of any Business Combination in which
the Company survives, the phrase "consideration other than
cash to be received" as used in paragraphs 2.a. and 2.b. of
Section C of this Article ELEVENTH shall include the shares of
Common Stock and/or the shares of any other class of series of
shares retained by the holders of such shares.
E. Powers of the Board of Directors. A majority of the
Disinterested Directors present at a meeting of the Board of Directors
at which a quorum is present shall have the power and duty to determine
for the purposes of this Article ELEVENTH, on the basis of information
known to them after reasonable inquiry, (a) whether a person is an
Interested Shareholder or a Substantial Shareholder, (b) the number of
shares of Voting Stock beneficially owned by any person, (c) the length
of time such shares are beneficially owned by any person, (d) whether a
person is an Affiliate or Associate of another, (e) whether the assets
which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities
by the Company or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $25,000,000 or more, and (f) such other
matters with respect to which a determination or interpretation
required under this Article ELEVENTH.
F. No Effect on Fiduciary Obligation of Interested Shareholder
or Substantial Shareholder. Nothing contained in this Article ELEVENTH
shall be construed to relieve any Interested Shareholder or Substantial
Shareholder from any fiduciary obligation imposed by law.
G. Amendment, Repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-Laws (and
notwithstanding the fact that a lesser percentage may be specified by
law, this Certificate of Incorporation or the By-Laws of this Company
or otherwise), the affirmative vote of not less than eighty percent
(80%) of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock, voting together as a single class,
shall be required to amend, repeal or adopt any provisions inconsistent
with this Article ELEVENTH; provided, however, that this Section G
shall not apply to, and such eighty percent (80%) vote shall not be
required for, any amendment, repeal or adoption recommendation by a
majority of the Disinterested Directors present at a meeting of the
Board of Directors at which a quorum is present.
TWELFTH - No member of the Board of Directors shall have any personal
liability to the company or its shareholders for damages for any breach of duty
in such capacity, provided that this Article shall not eliminate or limit:
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(i) the liability of any Director if a judgment or other final
adjudication adverse to him or her establishes that his or her acts or
omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally
entitled or that his or her acts violated section 719 of the Business
Corporation Law; or
(ii) the liability of any Director for any act or omission prior to
the adoption of this Article.
Neither the amendment nor repeal of this Article, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article, shall eliminate or reduce the effect of this Article in respect of any
act or omission occurring prior to such amendment, repeal or adoption of an
inconsistent provision.
5. This amendment and restatement of the Certificate of Incorporation
of The B.F.Goodrich Company was authorized by the unanimous vote of the Board of
Directors of the Company at a meeting duly called and held, a quorum being
present, on the 6th day of June, 1988 and by the shareholders of the Company at
a special meeting duly called and held, a quorum being present, on the 27th day
of July, 1988.
IN WITNESS WHEREOF, the undersigned have executed and signed their
names and affirm that the statements made herein are true under the penalties of
perjury, this 29th day of July, 1988.
THE B.F.GOODRICH COMPANY
Jon V. Heider
Senior Vice President
Nicholas J. Calise
Secretary
56
57
CERTIFICATE OF AMENDMENT
of
THE CERTIFICATE OF INCORPORATION
of
THE B.F.GOODRICH COMPANY
(Under Section 805 of the
Business Corporation Law)
-------------------------
Pursuant to the provisions of Section 805 of the Business Corporation
Law, the undersigned hereby certify:
1. The name of the corporation is The B.F.Goodrich Company (the
"Company"),
2. The Certificate of Incorporation of the Company was filed by the
Department of State on 2nd day of May, 1912.
3. The Certificate of Incorporation of the Company is hereby amended by
the addition of the following provision stating the number, designations,
relative rights, preferences and limitations of a series of Series Participating
Preferred Stock of the Company, designated as Junior Participating Preferred
Stock, Series F, par value $1 per share, as unanimously approved by the Board of
Directors of the Company at a meeting on June 2, 1997 pursuant to the authority
vested in it by the Certificate of Incorporation of the Company.
Junior Participating Preferred Stock, Series F:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Junior Participating Preferred Stock, Series F" (the "Series F
Preferred Stock") and the number of shares constituting the Series F Preferred
Stock shall be 100,000. 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 F Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Company convertible
into Series F Preferred Stock.
58
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
F Preferred Stock with respect to dividends, the holders of shares of Series F
Preferred Stock, in preference to the holders of Common Stock, par value $5 per
share (the "Common Stock"), of the Company, and of any other junior stock, shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, quarterly dividends payable in cash
on the first day of January, April, July and October 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 F Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $10 or (b)
subject to the provision for adjustment hereinafter set forth, 1000 times the
aggregate per share amount of all cash dividends, and 1000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series F Preferred Stock. In the event the Company shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series F
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Company shall declare a dividend or distribution on the Series
F Preferred Stock as provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10 per share on the Series F
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 F Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series F 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.
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59
Dividends paid on the shares of Series F 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 F Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 50 days prior to the date fixed for the payment
thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series F Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series F Preferred Stock shall entitle the holder thereof to 1000 votes
on all matters submitted to a vote of the shareholders of the Company. In the
event the Company shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series F Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series F Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Company having general voting
rights shall vote together as one class on all matters submitted to a vote of
shareholders of the Company.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series F Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series F 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 F Preferred Stock outstanding shall have
been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series
F Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon
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60
liquidation, dissolution or winding up) with the Series F
Preferred Stock, except dividends paid ratably on the Series F
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 junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series F Preferred Stock, provided that the Company may at
any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series F
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series F Preferred Stock, or any shares of stock
ranking on a parity with the Series F 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 Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series F Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Certificate
of Incorporation, or in any other Certificate of Designations creating a series
of Preferred Stock or any similar stock or as otherwise required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series F
Preferred Stock unless, prior thereto, the holders of shares of Series F
Preferred Stock shall have received $1000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series F
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1000
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series F Preferred Stock, except distributions made ratably on the Series F
Preferred Stock and all such parity stock in proportion to the total
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61
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Company shall at any
time declare or pay any dividend on the common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series F Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series F Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series F Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series F Preferred Stock shall
not be redeemable.
Section 9. RANK. The Series F Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Company's Preferred Stock.
Section 10. AMENDMENT. The Certificate of Incorporation of the Company
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series F Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series F Preferred Stock, voting
together as a single class.
62
IN WITNESS WHEREOF, we have executed and subscribed this Certificate of
Amendment, and do affirm the foregoing as true, under penalties of perjury this
31st day of July, 1997.
--------------------------------------
Name: David L. Burner
Title: Chairman, President and
Chief Executive Officer
--------------------------------------
Name: Nicholas J. Calise
Title: Secretary
63
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF INCORPORATION
OF
THE B.F.GOODRICH COMPANY
(Under Section 805 of the
Business Corporation Law)
------------------------------
Pursuant to the provisions of Section 805 of the
Business Corporation Law, the undersigned hereby certify:
1. The name of the corporation is The B.F.Goodrich Company
(the "Company").
2. The Certificate of Incorporation of the Company was filed
by the Department of State on the 2nd day of May, 1912.
3. The Certificate of Incorporation of the Company is hereby
amended to modify Article FOURTH to increase the number of authorized shares of
Common Stock from 100,000,000 to 200,000,000 shares by deleting the existing
Article Fourth in its entirety and substituting the following:
"FOURTH -- The aggregate number of shares which the Company
shall have authority to issue is 210,000,000, divided into 10,000,000
shares of Series Preferred Stock of the par value of $1 per share
(hereafter called "Series Preferred Stock"), and 200,000,000 shares of
Common Stock of the par value of $5 per share (hereafter called "Common
Stock")."
4. This amendment of the Certificate of Incorporation of The
B.F.Goodrich Company was authorized by the unanimous vote of the Board of
Directors of the Company at a meeting duly called and held, a quorum being
present, on the 16th day of
64
February 1998 and by a vote of the holders of a majority of the outstanding
shares of the Company's Common Stock at a meeting duly called and held, a quorum
being present, on the 20th day of April 1998.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate of Amendment, and do affirm the foregoing as true, under penalties
of perjury this 30th day of April, 1998.
/s/ DAVID L. BURNER
-------------------------------
David L. Burner, Chairman,
President and Chief Executive
Officer
/s/ NICHOLAS J. CALISE
-------------------------------
Nicholas J. Calise, Secretary