Exhibit 3.A
RESTATED CERTIFICATE OF INCORPORATION
OF
THE NEW DIAL CORP.
1. The name of the corporation (which is hereinafter referred to as the
Corporation) is "The New Dial Corp."
2. The original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on December 16, 1991, under the name The New
Dial Corp.
3. This Restated Certificate of Incorporation has been duly proposed by
resolutions adopted and declared advisable by the Board of Directors of the
Corporation, duly adopted by written consent of the sole stockholder of the
Corporation in lieu of a meeting and vote and duly executed and acknowledged by
the officers of the Corporation in accordance with the provisions of Sections
103, 228, 242 and 245 of the General Corporation Law of the State of Delaware
and, upon filing with the Secretary of State in accordance with Section 103
shall thenceforth supercede the original Certificate of Incorporation and shall,
as it may thereafter be amended in accordance with its terms and applicable law,
be the Certificate of Incorporation of the Corporation.
4. The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE I
The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
The New Dial Corp.
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is The Corporation Trust Center, 1209 Orange Street in the City of Wilmington,
County of New Castle. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware (the "GCL").
ARTICLE IV
(A) Authorized Stock. The total number of shares of stock which the
Corporation shall have authority to issue is 207,442,352, consisting of (i) Two
Hundred Million (200,000,000) shares of Common Stock, par value $1.50 per share
(hereinafter referred to as "Common Stock"), (ii) Four Hundred Forty-Two
Thousand Three Hundred Fifty-Two (442,352) shares of Series $4.75 Preferred
Stock, without par value but with a stated value of One Hundred Dollars ($100)
per share (hereinafter referred to as "$4.75 Preferred Stock"), (iii) Five
Million (5,000,000) shares of Preferred Stock, par value $.01 per share
(hereinafter referred to as "Preferred Stock") and (iv) Two Million (2,000,000)
shares of Junior Participating Preferred Stock, par value $.01 per share
(hereinafter referred to as "Junior Preferred Stock").
(B) $4.75 Preferred Stock. The qualifications, limitations or restrictions
of the $4.75 Preferred Stock shall be as follows:
(i) The holders of the $4.75 Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of any assets of
the Corporation legally available for dividends, cumulative dividends in cash,
payable on January 15, April 15, July 15, and October 15 in each year, beginning
in the year 1992, at the annual rate of $4.75 per share, and no more, with the
first payment to accrue from January 15, 1992 and be made on April 15, 1992.
(ii) In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of the $4.75 Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for distribution to
shareholders an amount equal to $100 per share if such liquidation, dissolution
or winding up be involuntary or, if such liquidation, dissolution or winding up
be voluntary, an amount equal to $101 per share, plus, in each case, a further
amount equal to all unpaid cumulative dividends on the $4.75 Preferred Stock
accrued to the date when such payment shall be made available to the holders
thereof, before any distribution of assets shall be made to the holders of the
Common Stock or other shares ranking junior to the $4.75 Preferred Stock with
respect to liquidation rights. After such amounts shall have been paid or
irrevocably set aside for payment in full to the holders of the $4.75 Preferred
Stock, they shall be entitled to no further payment or distribution other than
from any such fund irrevocably set aside. If, upon such liquidation, dissolution
or winding up, the assets thus distributable to the holders of the $4.75
Preferred Stock shall be insufficient to permit the payment to such holders of
the preferential amounts aforesaid, then such assets shall be distributed
ratably among the holders of the $4.75 Preferred Stock according to the number
of shares held by each.
The liquidation, dissolution or winding up of the Corporation, as such
terms are used in the foregoing paragraph, shall not be deemed to include any
consolidation or merger of the corporation with or into any one or more other
corporations, or the sale of all or any of the assets of the Corporation.
(iii) The $4.75 Preferred Stock may be redeemed at any time, or from time
to time, in whole or in part, at the option of the Corporation, expressed by
resolution of the Board of Directors. The redemption price per share of the
$4.75 Preferred Stock shall be $101, plus an
amount equal to all unpaid cumulative dividends accrued on the shares to be
redeemed to the date fixed for redemption.
Notice of every such redemption shall be given at least thirty days prior
to the date fixed for such redemption to the holders of record of the shares so
to be redeemed, and shall be sufficiently given if the Corporation shall cause a
copy thereof to be mailed to such holders of record at their respective
addresses as shown by the books of the Corporation by first class mail, postage
prepaid; provided, however, that the failure to mail such notice to one or more
of such holders shall not affect the validity of such redemption as to the other
such holders.
In case of redemption of a part only of the $4.75 Preferred Stock at the
time outstanding, the Corporation shall select by lot the shares so to be
redeemed. The Board of Directors shall have full power and authority to
prescribe the manner in which the selection by lot shall be conducted and,
subject to the limitations and provisions herein contained, the terms and
conditions upon which the $4.75 Preferred Stock shall be redeemed from time to
time.
If such notice of redemption shall have been duly given, and if on or
before the redemption date specified therein all funds necessary for such
redemption shall be and continue to be available for payment on and after the
redemption date upon surrender of the certificates for the shares so called for
redemption, then, notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, the shares so
called for redemption shall on and after such redemption date no longer be
deemed to be outstanding, and all rights with respect to such shares shall
forthwith on such redemption date terminate, except only the right of the
holders of the certificates therefor, upon surrender thereof, to receive the
amount payable on redemption thereof, without interest.
If such notice of redemption shall have been duly given, or if the
Corporation shall have granted to the bank or trust company, hereinafter
referred to, irrevocable authorization promptly to give or complete such notice,
and if on or before the redemption date specified therein the funds necessary
for such redemption shall have been deposited in trust for the pro rata benefit
of the holders of the shares so called for redemption with a bank or trust
company in good standing, designated in such notice, having capital, surplus and
undivided profits aggregating at least $25,000,000 according to its then latest
published statement of condition, then, notwithstanding that such deposit shall
have been made less than thirty days after the notice of redemption, and that
any certificates for shares so called for redemption shall not have been
surrendered for cancellation, from and after such deposit (or from and after the
redemption date if such notice of redemption shall fail to state that the
holders of the shares so called for redemption may receive their redemption
price at any time after such deposit) all shares of $4.75 Preferred Stock with
respect to which such deposit shall have been made shall no longer be deemed to
be outstanding and all rights with respect to such shares shall forthwith
terminate, except only the right of the holders of the certificates therefor,
upon surrender thereof, to receive the redemption price thereof out of the funds
so deposited, without interest. Any funds so deposited, and unclaimed at the end
of six years from the redemption date, shall be released or repaid to the
Corporation, after which the certificate holders entitled thereto shall look
only to the Corporation for payment thereof, without interest.
The shares of $4.75 Preferred Stock which shall have been redeemed as
aforesaid shall be retired, and shall be returned to the status of authorized
but unissued Series $4.75 Preferred Stock.
(iv) So long as any shares of $4.75 Preferred Stock shall be outstanding,
the Corporation (which for purposes of this subparagraph shall be deemed to
include any predecessor issuer of $4.75 Preferred Stock which shall have merged
into the Corporation) shall, on or before September 1 in each year, beginning in
the year 1983, pay to a bank or trust company (hereinafter called the Sinking
Fund Agent) appointed from time to time by the Corporation and being a bank or
trust company meeting the requirements of paragraph (iii) above, as and for a
sinking fund for the $4.75 Preferred Stock a sum sufficient for the redemption
in such year, in accordance with the provisions of this paragraph (iv) of 6,000
shares of $4.75 Preferred Stock (hereinafter referred to as the sinking fund
payment). As and for all or any part of any sinking fund payment, the
Corporation may, on or before September 1 of each year, beginning in the year
1983, deliver to the Sinking Fund Agent certificates for $4.75 Preferred Stock
(which shall be in canceled form) theretofore issued by the Corporation or any
such predecessor by merger to the Corporation and which were repurchased by it
or by such corporation merging into the Corporation or redeemed otherwise than
through the operation of the sinking fund provided for in this paragraph (iv),
and receive credit upon such sinking fund payment, with respect to a sum
sufficient for the redemption, in accordance with the provisions of this
paragraph (iv), of the number of shares of $4.75 Preferred Stock so delivered.
Any moneys in the sinking fund for the $4.75 Preferred Stock on September 1 of
any year shall be applied by the Sinking Fund Agent to the redemption on October
1 of such year of shares of $4.75 Preferred Stock at the sinking fund redemption
price consisting of $100 per share plus an amount equal to all unpaid cumulative
dividends accrued to the date fixed for redemption on each share so to be
redeemed. Such redemption shall be effected by lot in such manner as the Sinking
Fund Agent shall determine, and the Sinking Fund Agent is authorized to effect
such redemption in the name of the Corporation in the manner and with the effect
provided by paragraph (iii) above, except that the notice of redemption shall
state that the shares are being redeemed for the sinking fund; provided,
however, that if the amount of the sinking fund payment in any year shall be
less than $25,000, such amount may, at the option of the Corporation, remain in
the sinking fund and be applied as part of the next succeeding sinking fund
payment. Shares of $4.75 Preferred Stock which shall be delivered to the Sinking
Fund Agent by the Corporation as a credit upon a sinking fund payment or which
shall be called for redemption through the operation of the sinking fund shall
be retired, and, until all shares of Series $4.75 Preferred Stock outstanding at
the time of such retirement have been redeemed or otherwise acquired by the
Corporation, shall not be delivered for credit upon any sinking fund payment,
and such shares shall be returned to the status of authorized but unissued
Series $4.75 Preferred Stock.
If any sinking fund payment would be required at a time when dividends upon
the $4.75 Preferred Stock shall be in arrears, the Corporation shall not be
required to make a sinking fund payment at that time, but shall nevertheless be
considered, for the purposes hereof, to be in default with respect to its
sinking fund obligations and shall be required to make such defaulted sinking
fund payment at the earliest time thereafter when dividends upon the $4.75
Preferred Stock shall not be in arrears. Within forty days after the Corporation
shall have made any such
defaulted sinking fund payment, the Sinking Fund Agent shall apply the same to
redemption of $4.75 Preferred Stock in the manner and at the price above in this
paragraph (iv) provided.
(v) So long as any shares of $4.75 Preferred Stock shall be outstanding, no
dividends, other than dividends payable in junior shares, shall be paid or
declared, nor shall any distribution be made, on any junior shares nor shall any
junior shares be acquired for a consideration by the Corporation or by any
subsidiary, unless:
(a) Full cumulative dividends on the $4.75 Preferred Stock for all the
then past and for the then current dividend periods shall have been paid, or
declared and set apart for payment, except as otherwise provided in the last
sentence of paragraph (i) above and
(b) All sinking fund payments required by paragraph (iv) above to have
been made shall have been made in full.
(vi) So long as any shares of $4.75 Preferred Stock shall be outstanding,
the Corporation shall not, without the affirmative vote of the holders of at
least two-thirds of the shares of $4.75 Preferred Stock at the time outstanding,
given in person or by proxy, either at a special meeting called for the purpose
or at any annual meeting of shareholders if appropriate notice of such proposed
action is given, at which the $4.75 Preferred Stock shall vote separately as a
single class, or, alternatively, without the written consent of the holders of
all the shares of $4.75 Preferred Stock at the time outstanding:
(a) Amend or repeal any provision of or add any provision to this
Certificate of Incorporation, or take any other action, so as to alter
materially any existing provision of the $4.75 Preferred Stock; or
(b) Authorize, or increase, or issue, any class or series of any class of
the shares of the Corporation ranking prior to the $4.75 Preferred Stock, or
increase the authorized amount of the $4.75 Preferred Stock; provided, however,
that no vote or consent of the holders of the $4.75 Preferred Stock shall be
required to issue any shares, regardless of priority, for the purpose of
redeeming or otherwise retiring the $4.75 Preferred Stock if, prior to or
contemporaneously with the issuance thereof, provision has been made in
accordance with the provisions of paragraph (iii) above for the redemption of
all $4.75 Preferred Stock at the time outstanding; or
(c) Sell, lease or convey all or substantially all the property or
business of the Corporation, or voluntarily liquidate or dissolve the
Corporation, or consolidate or merge the Corporation with or into any other
corporation; provided, however, that no such vote or consent of the holders of
the $4.75 Preferred Stock shall be required for a consolidation or merger of the
Corporation if each holder of shares of $4.75 Preferred Stock immediately prior
to such consolidation or merger shall, upon the occurrence thereof, possess the
same or equivalent number of shares of the resulting corporation (which may be
the Corporation or another corporation) having substantially the same terms and
provisions as the shares of $4.75 Preferred Stock and the resulting corporation
will have, immediately after such consolidation or merger, no other shares
either authorized or outstanding ranking prior to or on a parity with such
shares.
(vii) So long as any shares of $4.75 Preferred Stock shall be outstanding,
the Corporation shall not, without the affirmative vote of the holders of at
least a majority of the shares of $4.75 Preferred Stock at the time outstanding,
given in person or by proxy, either at a special meeting called for the purpose
or at any annual meeting of shareholders if appropriate notice of such proposed
action is given, at which the $4.75 Preferred Stock shall vote separately as a
single class, or, alternatively, without the written consent of the holders of
all the shares of $4.75 Preferred Stock at the time outstanding, authorize, or
increase, or issue, any class or series of any class of shares of the
Corporation ranking on a parity with the $4.75 Preferred Stock; provided,
however, that no vote or consent of the holders of the $4.75 Preferred Stock
shall be required to issue any shares, regardless of parity, for the purpose of
redeeming or otherwise retiring the $4.75 Preferred Stock, if prior to or
contemporaneously with the issuance thereof, provision has been made in
accordance with the provisions of paragraph (iii) above for the redemption of
all the $4.75 Preferred Stock at the time outstanding.
(viii) For the purposes hereof the term "ranking prior to" the $4.75
Preferred Stock shall have reference to a class or series of a class of shares
which is preferential to the $4.75 Preferred Stock with respect of dividends or
liquidation rights; the term "ranking on a parity with" the $4.75 Preferred
Stock shall have reference to a class or series of a class of shares which is
equal to the $4.75 Preferred Stock with respect to dividends or liquidation
rights and the term "junior shares" shall mean the Common Stock and any other
class or series of a class of shares of the Corporation not ranking prior to or
on a parity with the $4.75 Preferred Stock.
(ix) The holders of $4.75 Preferred Stock shall have no right to vote
except as otherwise herein or by statute specifically provided.
If and when the Corporation shall be in default in the payment in whole or
in part, of each of six quarterly dividends (whether or not consecutive) accrued
on the $4.75 Preferred Stock, whether or not earned or declared, the holders of
the outstanding $4.75 Preferred Stock, voting separately as a single class,
shall become entitled to elect two directors of the Corporation to serve in
addition to the directors elected pursuant to Article VIII of this Certificate
of Incorporation. Such right to elect additional directors may be exercised at
any annual meeting of shareholders, or, within the limitations hereinafter
provided, at a special meeting of shareholders held for such purpose. If such
default shall occur more than ninety days preceding the date of the next annual
meeting of shareholders as fixed by the Bylaws of the Corporation, then a
special meeting of the holders of the $4.75 Preferred Stock shall be called by
the Secretary of the Corporation upon the written request of the holders of not
less than 10% of the $4.75 Preferred Stock then outstanding, such meeting to be
held within sixty days after the delivery to the Secretary of such request. Such
additional directors, whether elected at an annual or a special meeting, shall
serve until the next annual meeting and until their successors shall be duly
elected and qualified, unless their term shall sooner terminate pursuant to the
provisions of this paragraph (ix). At any meeting for the purpose of electing
such additional directors, the holders of 35% of the $4.75 Preferred Stock then
outstanding shall constitute a quorum, and any such meeting shall be valid
notwithstanding that a quorum of the outstanding shares of any other class or
classes shall not be present or represented thereat. At the time of any such
meeting at which a quorum shall be present, the number of directors constituting
the whole Board of Directors shall be deemed to be increased by two. If a
vacancy shall occur in the Board of Directors by reason
of the death, resignation or inability to act of any such additional director,
such vacancy shall be filled only by the vote of the holders of the $4.75
Preferred Stock, voting separately as a single class, at a special meeting of
the holders of the $4.75 Preferred Stock requested, called and held in the same
manner as the special meeting hereinabove referred to. If and when all dividends
in default on the $4.75 Preferred Stock shall be paid or irrevocably set aside
for payment, the right of the holders of the $4.75 Preferred Stock as a class to
elect directors shall then cease, and if any directors were elected by the
holders of the $4.75 Preferred Stock as a class, the term of such directors
shall terminate, and the number of directors constituting the whole Board of
Directors shall be reduced by the number of such additional directors. The above
provisions for the vesting of such voting right in the holders of the $4.75
Preferred Stock as a class shall apply, however, in case of any subsequent
default under this paragraph (ix).
Except as may be required by law, the holders of $4.75 Preferred Stock
shall not be entitled to receive notice of any meeting of shareholders at which
they are not entitled to vote or consent.
Except as in this Certificate of Incorporation or in a Preferred Stock
Designation (as herein defined) or by statute specifically provided, the holders
of the Common Stock shall have the exclusive right to vote for the election of
directors and for all other purposes. The total number of directors may be
increased without any vote or consent of the holders of $4.75 Preferred Stock.
(x) No holder of $4.75 Preferred Stock, as such, shall have any preemptive
right to subscribe to share obligations, warrants, rights to subscribe to shares
or other securities of the Corporation of any kind or class, whether now or
hereafter authorized.
(xi) The $4.75 Preferred Stock shall rank prior to all other classes and/or
series of stock of the Corporation, both as to payment of dividends and as to
distribution of assets upon liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary.
(C) Preferred Stock. The Preferred Stock may be issued from time to time in
one or more series. The Board of Directors is hereby authorized to provide for
the issuance of shares of Preferred Stock in series and, by filing a certificate
pursuant to the applicable law of the State of Delaware (hereinafter, along with
any similar designation relating to any other class of stock which may hereafter
be authorized, referred to as a "Preferred Stock Designation"), to establish
from time to time the number of shares to be included in each such series, and
to fix the designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations and restrictions thereof. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
(i) The designation of the series, which may be by distinguishing number,
letter or title.
(ii) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(iii) Whether dividends, if any, shall be cumulative or noncumulative and
the dividend rate of the series.
(iv) Dates at which dividends, if any, shall be payable.
(v) The redemption rights and price or prices, if any, for shares of the
series.
(vi) The terms and amount of any sinking fund provided for the purchase or
redemption of shares of the series.
(vii) The amounts payable on and the preferences, if any, of shares of the
series in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
(viii) Whether the shares of the series shall be convertible into shares of
any other class or series, or any other security, of the Corporation or any
other corporation, and, if so, the specification of such other class or series
of such other security, the conversion price or prices or rate or rates, any
adjustments thereof, the date or dates at which such shares shall be convertible
and all other terms and conditions upon which such conversion may be made.
(ix) Restrictions on the issuance of shares of the same series or of any
other class or series.
(x) The voting rights, if any, of the holders of shares of the series.
All shares of any series of Preferred Stock shall be subordinate to the
$4.75 Preferred Stock, with respect to the payment of dividends as well as the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.
(D) Junior Preferred Stock. The qualifications, limitations or restrictions
of the Junior Preferred Stock shall be as follows:
Section 1. Amount. The number of shares constituting the Junior Preferred
Stock shall be as set forth in paragraph (A) of this Article IV.
Section 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of $4.75 Preferred
Stock or any shares of any series of Preferred Stock (or any similar stock)
ranking prior and superior to the Junior Preferred Stock with respect to
dividends, the holders of shares of Junior Preferred Stock, in preference to the
holders of Common Stock 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 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 Junior Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (i) $1 or (ii) 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 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 Junior Preferred Stock. In the event the
Corporation 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 Junior Preferred Stock were entitled
immediately prior to such event under clause (ii) 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 Corporation shall declare a dividend or distribution on the Junior
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 $1 per share on the Junior
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 Junior 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 Junior Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Junior 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 Junior Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Junior Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Junior Preferred Stock shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation 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 Junior 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 provided in this Certificate of Incorporation, in any
Preferred Stock Designation or in any certificate of designations creating any
similar stock, or by law, the holders of shares of Junior Preferred Stock and
the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law, holders of
Junior 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 Junior 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 Junior Preferred Stock outstanding shall have been
paid in full, the Corporation 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 Junior 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 liquidation,
dissolution or winding up) with the Junior Preferred Stock, except dividends
paid ratably on the Junior 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 Junior Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Junior Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares
of Junior Preferred Stock or any shares of stock ranking on a parity with the
Junior Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Junior Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired promptly after the acquisition thereof. All such shares shall
upon their retirement become authorized but unissued shares of Junior Preferred
Stock and may be reissued as part of a new series of Junior Preferred Stock
subject to the conditions and restrictions on issuance set forth herein or in
any 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 Corporation, 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 Junior Preferred Stock unless,
prior thereto, the holders of shares of Junior Preferred Stock shall have
received $100 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 Junior Preferred Stock shall be entitled
to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 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 Junior Preferred Stock, except
distributions made ratably on the Junior Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. In the event the
Corporation 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 Junior 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 Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Junior 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 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
Corporation 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 Junior 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 Junior Preferred Stock shall not be
redeemable.
Section 9. Rank. The Junior Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
junior to the $4.75 Preferred Stock and to all series of the Corporation's
Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Junior 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 Junior Preferred Stock, voting together
as a single class.
(E) Common Stock. The Common Stock shall be subject to the express terms of
the $4.75 Preferred Stock, the Junior Preferred Stock and the Preferred Stock
and any series thereof. Each share of Common Stock shall be equal to each other
share of Common Stock. The holders of shares of Common Stock shall be entitled
to one vote for each such share upon all questions presented to the
stockholders.
(F) Vote. Except as may be provided in this Certificate of Incorporation or
in a Preferred Stock Designation, or as may be required by law, the Common Stock
shall have the exclusive right to vote for the election of directors and for all
other purposes, and holders of $4.75 Preferred Stock, Junior Preferred Stock and
Preferred Stock shall not be entitled to receive notice of any meeting of
stockholders at which they are not entitled to vote.
(G) Record Holders. The Corporation shall be entitled to treat the person
in whose name any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other
person, whether or not the Corporation shall have notice thereof, except as
expressly provided by applicable law.
ARTICLE V
The Board of Directors is hereby authorized to create and issue, whether or
not in connection with the issuance and sale of any of its stock or other
securities or property, rights entitling the holders thereof to purchase from
the Corporation shares of stock or other securities of the Corporation or any
other corporation. The times at which and the terms upon which such rights are
to be issued will be determined by the Board of Directors and set forth in the
contracts or instruments that evidence such rights. The authority of the Board
of Directors with respect to such rights shall include, but not be limited to,
determination of the following:
(A) The initial purchase price per share or other unit of the stock or
other securities or property to be purchased upon exercise of such rights.
(B) Provisions relating to the times at which and the circumstances under
which such rights may be exercised or sold or otherwise transferred, either
together with or separately from, any other stock or other securities of the
Corporation.
(C) Provisions which adjust the number or exercise price of such rights or
amount or nature of the stock or other securities or property receivable upon
exercise of such rights in the event of a combination, split or recapitalization
of any stock of the Corporation, a change in ownership of the Corporation's
stock or other securities or a reorganization, merger, consolidation, sale of
assets or other occurrence relating to the Corporation or any stock of the
Corporation, and provisions restricting the ability of the Corporation to enter
into any such transaction absent an assumption by the other party or parties
thereto of the obligations of the Corporation under such rights.
(D) Provisions which deny the holder of a specified percentage of the
outstanding stock or other securities of the Corporation the right to exercise
such rights and/or cause the rights held by such holder to become void.
(E) Provisions which permit the Corporation to redeem or exchange such
rights.
(F) The appointment of a rights agent with respect to such rights.
ARTICLE VI
(A) In furtherance of, and not in limitation of, the powers conferred by
law, the Board of Directors is expressly authorized and empowered:
(i) to adopt, amend or repeal the Bylaws of the Corporation; provided,
however, that the Bylaws adopted by the Board of Directors under the powers
hereby conferred may be amended
or repealed by the Board of Directors or by the stockholders having voting power
with respect thereto, provided further that in the case of amendments by
stockholders, the affirmative vote of the holders of at least 80 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to alter, amend or repeal any provision of the Bylaws;
and
(ii) from time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the accounts
and books of the Corporation, or any of them, shall be open to inspection of
stockholders; and, except as so determined, or as expressly provided in this
Certificate of Incorporation or in any Preferred Stock Designation, no
stockholder shall have any right to inspect any account, book or document of the
Corporation other than such rights as may be conferred by applicable law.
(B) The Corporation may in its Bylaws confer powers upon the Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least 80 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to amend, repeal or adopt any provision inconsistent
with subparagraph (i) of paragraph (A) of this Article VI. For the purposes of
this Certificate of Incorporation, "Voting Stock" shall mean the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors.
ARTICLE VII
Subject to the rights of the holders of $4.75 Preferred Stock, any series
of Preferred Stock or any other series or class of stock as set forth in the
Certificate of Incorporation, to elect additional directors under specific
circumstances, any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing in lieu of a meeting of such stockholders. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of at least 80 percent of the voting power of the then outstanding Voting
Stock, voting together as a single class, shall be required to amend, repeal or
adopt any provision inconsistent with this Article VII.
ARTICLE VIII
(A) Subject to the rights of the holders of $4.75 Preferred Stock, any
series of Preferred Stock or any other series or class of stock as set forth in
the Certificate of Incorporation, to elect additional directors under specific
circumstances, the number of directors of the Corporation shall be fixed by the
Bylaws of the Corporation and may be increased or decreased from time to time in
such a manner as may be prescribed by the Bylaws.
(B) Unless and except to the extent that the Bylaws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
(C) The directors, other than those who may be elected by the holders of
the $4.75 Preferred Stock, any series of Preferred Stock or any other series or
class of stock as set forth in the Certificate of Incorporation, shall be
divided into three classes, as nearly equal in number as possible. One class of
directors shall be initially elected for a term expiring at the annual meeting
of stockholders to be held in 1992, another class shall be initially elected for
a term expiring at the annual meeting of stockholders to be held in 1993, and
another class shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1994. Members of each class shall hold
office until their successors are elected and qualified. At each succeeding
annual meeting of the stockholders of the Corporation, the successors of the
class of directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
(D) Subject to the rights of the holders of $4.75 Preferred Stock, any
series of Preferred Stock or any other series or class of stock as set forth in
the Certificate of Incorporation, to elect additional directors under specific
circumstances, any director may be removed from office at any time, but only for
cause only by the affirmative vote of the holders of at least 80 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class.
(E) Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80 percent of
the voting power of the then outstanding Voting Stock, voting together as a
single class, shall be required to amend, repeal or adopt any provision
inconsistent with this Article VIII.
ARTICLE IX
Section 1. Vote Required for Certain Business Combinations.
(A) Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in Section 2 of this Article IX:
(i) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Stockholder (as hereinafter
defined), or (b) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, including all Affiliates of the Interested Stockholder,
of any assets of the Corporation or any Subsidiary having an aggregate Fair
Market Value (as hereinafter defined) of $10,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder, including all
Affiliates of the Interested Stockholder, in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market Value
of $10,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliates of an Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or consolidation
of the Corporation with any of its Subsidiaries or any other transaction
(whether or not an Interested Stockholder is a party thereto) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which are directly or indirectly owned by any
Interested Stockholder or one or more Affiliates of the Interested Stockholder;
shall require the affirmative vote of the holders of at least 66 2/3% of the
voting power of the then outstanding Voting Stock, voting together as a single
class, including the affirmative vote of the holders of at least 66 2/3% of the
voting power of the then outstanding Voting Stock not owned directly or
indirectly by any Interested Stockholder or any Affiliate of any Interested
Stockholder. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be permitted, by
law or in any agreement with any national securities exchange or otherwise.
(B) Definition of "Business Combination." The term "Business Combination"
as used in this Article IX shall mean any transaction described in any one or
more of clauses (i) through (v) of paragraph (A) of this Section 1.
Section 2. When Higher Vote is Not Required. The provisions of Section 1 of
this Article IX shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote as is
required by law or any other provision of this Certificate of Incorporation, if
the conditions specified in either of the following paragraphs (A) or (B) are
met:
(A) Approval by Continuing Directors. The Business Combination shall have
been approved by a majority of the Continuing Directors (as hereinafter
defined).
(B) Price and Procedure Requirements. All of the following conditions shall
have been met:
(i) The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination 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 of the following:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of
Common Stock acquired by it (1) within the two-year period immediately prior to
the first public announcement of the proposal of such Business Combination (the
"Announcement Date"), or (2) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested Stockholder (the "Determination Date"), whichever is higher; and
(c) (if applicable) the price per share equal to the Fair Market
Value per share of Common Stock determined pursuant to paragraph (B)(i)(b)
above, multiplied by the ratio of (1) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of Common Stock acquired by it within the
two-year period immediately prior to the Announcement Date to (2) the Fair
Market Value per share of Common Stock on the first day in such two-year period
upon which the Interested Stockholder acquired any shares of Common Stock.
(ii) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other than
cash to be received per share by holders of shares of any other class, other
than Common Stock or Excluded Preferred Stock, of outstanding Voting Stock shall
be at least equal to the highest of the following (it being intended that the
requirements of this paragraph (B)(ii) shall be required to be met with respect
to every such class of outstanding Voting Stock whether or not the Interested
Stockholder has previously acquired any shares of a particular class of Voting
Stock):
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the
Interested Stockholder for any shares of such class of Voting Stock acquired by
it (1) within the two-year period immediately prior to the Announcement Date, or
(2) in the transaction in which it became an Interested Stockholder, whichever
is higher;
(b) (if applicable) the highest preferential amount per share to
which the holders of shares of such class of Voting Stock are entitled in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation;
(c) the Fair Market Value per share of such class of Voting Stock on
the Announcement Date or on the Determination Date, whichever is higher; and
(d) (if applicable) the price per share equal to the Fair Market
Value per share of such class of Voting Stock determined pursuant to paragraph
(B)(ii)(c) above, multiplied by the ratio of (1) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares of such class of Voting
Stock acquired by it within the two-year period immediately prior to the
Announcement Date to (2) the Fair Market Value per share of such class of Voting
Stock on the first day in such two-year period upon which the Interested
Stockholder acquired any shares of such class of Voting Stock.
(iii) The consideration to be received by holders of a particular class
of outstanding Voting Stock (including Common Stock and other than Excluded
Preferred Stock) shall be in cash or in the same form as the Interested
Stockholder has previously paid for shares of such class of Voting Stock. If the
Interested Stockholder has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration for such class of
Voting Stock shall be either cash or the form used to acquire the largest number
of shares of such class of Voting Stock previously acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (a)
there shall have been no failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on any outstanding
preferred stock, except as approved by a majority of the Continuing Directors;
(b) there shall have been no reduction in the annual rate of dividends paid on
the Common Stock (except as necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the Continuing Directors; (c) there
shall have been an increase in the annual rate of dividends as necessary fully
to reflect any recapitalization (including any reverse stock split),
reorganization or any similar reorganization which has the effect of reducing
the number of outstanding shares of the Common Stock, unless the failure so to
increase such annual rate is approved by a majority of the Continuing Directors;
and (d) such Interested Stockholder shall not have become the Beneficial Owner
of any additional Voting Stock except as part of the transaction which results
in such Interested Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial assistance or any tax credits
or other tax advantages provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to shareholders of the
Corporation at least thirty (30) days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be marked pursuant to such Act or subsequent provisions).
Section 3. Certain Definitions. For purposes of this Article IX:
(A) "Person" shall mean any individual, firm, corporation or other entity.
(B) "Interested Stockholder" shall mean any Person (other than the
Corporation or any Subsidiary) who or which:
(i) itself, or along with its Affiliates, is the Beneficial Owner,
directly or indirectly, of more than 10% of the then outstanding Voting Stock;
or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was itself, or along
with its Affiliates, the Beneficial Owner, directly or indirectly, of 10% or
more of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any Voting Stock
which was at any time within the two-year period immediately prior to the date
in question beneficially owned by any Interested Stockholder, if such assignment
or succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
(C) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the General Rules and Regulations of the Securities Exchange Act of
1934, as in effect on February 1, 1992. In addition, a Person shall be the
"Beneficial Owner" of any Voting Stock which such Person or any of its
Affiliates or Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding (but neither such
Person nor any such Affiliate or Associate shall be deemed to be the Beneficial
Owner of any shares of Voting Stock solely by reason of a revocable proxy
granted for a particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, and with respect to which shares
neither such Person nor any such Affiliate or Associate is otherwise deemed the
Beneficial Owner).
(D) For the purpose of determining whether a Person is an Interested
Stockholder pursuant to paragraph (B) of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph (C) of this Section 3 but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options or otherwise.
(E) "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, 1992.
(F) "Subsidiary" shall mean any corporation of which a majority of any
share of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph (B) of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each share of equity
security is owned, directly or indirectly, by the Corporation.
(G) "Continuing Director" shall mean any member of the Board of Directors
of the Corporation (the "Board") who is unaffiliated with the Interested
Stockholder and was a member of the Board prior to the time that the Interested
Stockholder became an Interested Stockholder, and any director who is thereafter
chosen to fill any vacancy on the Board or who is elected and who, in either
event, is unaffiliated with the Interested Stockholder and in connection with
his or
her initial assumption of office is recommended for appointment or election by a
majority of Continuing Directors then on the Board.
(H) "Fair Market Value" shall mean (i) 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 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 system then in use in its stead, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board in accordance with Section 4 of
this Article IX; and (ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by the
Board in accordance with Section 4 of this Article IX.
(I) In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in paragraphs
(B)(i) and (ii) of Section 2 of this Article IX shall include the shares of
Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(J) "Excluded Preferred Stock" means any series of Preferred Stock with
respect to which a majority of the Continuing Directors have approved a
Preferred Stock Designation creating such series that expressly provides that
the provisions of this Article IX shall not apply.
Section 4. The Continuing Directors of the Corporation shall have the power
and duty to determine for the purposes of this Article IX, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article IX, including, without limitation (i)
whether a Person is an Interested Stockholder, (ii) the number of shares of
Voting Stock beneficially owned by any Person, (iii) whether a Person is an
Affiliate or Associate of another, (iv) whether the applicable conditions set
forth in paragraph (B) of Section 2 of this Article IX have been met with
respect to any Business Combination, (v) the Fair Market Value of stock or other
property in accordance with paragraph (H) of Section 3 of this Article IX, and
(vi) whether the assets which are the subject of any Business Combination have,
or the consideration to be received for the issuance or transfer of securities
by the Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $10,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article IX shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
Section 6. Amendment, Repeal, etc. Notwithstanding any other provisions of
this Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding the fact that a lesser percentage may be permitted by law, this
Certificate of Incorporation or the Bylaws of the
Corporation), but in addition to any affirmative vote of the holders of any
particular class of the Voting Stock required by law or this Certificate of
Incorporation, the affirmative vote of the holders of 66 2/3% of the voting
power of the shares of the then outstanding Voting Stock voting together as a
single class, including the affirmative vote of the holders of 66 2/3% of the
voting power of the then outstanding Voting Stock not owned directly or
indirectly by any Interested Stockholder or any Affiliate of any Interested
Stockholder, shall be required to amend or repeal, or adopt any provisions
inconsistent with, this Article IX of this Certificate of Incorporation.
ARTICLE X
Each person who is or was or had agreed to become a director or officer of
the Corporation, or each such person who is or was serving or who had agreed to
serve at the request of the Board of Directors or an officer of the Corporation
as an employee or agent of the Corporation or as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise (including the heirs, executor, administrators or estate of such
person), shall be indemnified by the Corporation, in accordance with the Bylaws
of the Corporation, to the fullest extent permitted from time to time by the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment) or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the Corporation
may enter into one or more agreements with any person which provide for
indemnification greater or different than that provided in this Article X. Any
amendment or repeal of this Article X shall not adversely affect any right or
protection existing hereunder in respect of any act or omission occurring prior
to such amendment or repeal.
ARTICLE XI
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. Any amendment or repeal of this Article XI shall
not adversely affect any right or protection of a director of the Corporation
existing hereunder in respect of any act or omission occurring prior to such
amendment or repeal.
ARTICLE XII
Except as may be expressly provided in this Certificate of Incorporation,
the Corporation reserves the right at any time and from time to time to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation or a Preferred Stock Designation, and any
other provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted, in the manner now or hereafter prescribed herein
or by applicable law, and all rights, preferences and privileges of whatsoever
nature conferred upon stockholders, directors or any other persons whomsoever by
and pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article XII;
provided, however, that any amendment or repeal of Article X or Article XI of
this Certificate of Incorporation shall not adversely affect any right or
protection existing hereunder in respect of any act or omission occurring prior
to such amendment or repeal; and provided further that no Preferred Stock
Designation shall be amended after the issuance of any shares of the series of
Preferred Stock created thereby, except in accordance with the terms of such
Preferred Stock Designation and the requirements of applicable law; and provided
further that paragraph (D) of Article IV hereof shall not be amended after the
issuance of any shares of Junior Preferred Stock, except in accordance with the
terms of such paragraph (D) and the requirements of applicable law.
IN WITNESS WHEREOF, said The New Dial Corp. has caused this Restated
Certificate of Incorporation to be signed by its President and attested by its
Secretary and has caused its corporate seal to be affixed, this 24th day of
February, 1992.
THE NEW DIAL CORP.
By: /s/ John W. Teets
President
Attest: /s/ F.G. Emerson
Secretary
CERTIFICATE OF MERGER
OF
THE DIAL CORP
INTO
THE NEW DIAL CORP.
(Under Section 252 of The General Corporation Law of the State of Delaware)
The New Dial Corp., a corporation organized and existing under and by virtue of
the laws of the State of Delaware,
DOES HEREBY CERTIFY THAT:
1. The name and state of incorporation of each of the constituent
corporations are:
(a) The Dial Corp, an Arizona corporation; and
(b) The New Dial Corp., a Delaware corporation.
2. An agreement of merger has been approved, adopted, certified, executed
and acknowledged by The Dial Corp and by The New Dial Corp. in accordance with
the provisions of subsection (c) of Section 252 of the General Corporation Law
of the State of Delaware.
3. The name of the surviving corporation of the merger is The New Dial
Corp.
4. The certificate of incorporation of The New Dial Corp. shall be the
certificate of incorporation of the surviving corporation, except that at the
effective time of the merger Article I of the certificate of incorporation of
The New Dial Corp. shall be amended to read in its entirety as follows:
I. The name of the Corporation is The Dial Corp.
5. The surviving corporation is a corporation of the State of Delaware.
6. The executed agreement of merger is on file at the principal place of
business of The New Dial Corp. at 1850 North Central Avenue, Phoenix, Arizona
85077.
7. A copy of the agreement of merger will be furnished by The New Dial
Corp., on request and without cost, to any stockholder of The Dial Corp or The
New Dial Corp.
8. The authorized capital stock of The Dial Corp is 100,000,000 shares of
common stock, par value $1.50 per share, 5,000,000 shares of preference stock,
without par value, of which 442,352 shares have been designated Series $4.75
Preferred Stock and 600,000 shares have been
designated Junior Participating Preference Stock, and 5,000,000 shares of second
preference stock, without par value.
IN WITNESS WHEREOF, The New Dial Corp. has caused this certificate to be
executed by Richard C. Stephan, its Vice President, and attested by F. G.
Emerson, its Secretary, on this 3rd day of March, 1992.
THE NEW DIAL CORP.
By: /s/ Richard C. Stephan
----------------------
Vice President
ATTEST:
By: s/ F. G. Emerson
-----------------
Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
LEN INC.
INTO
THE DIAL CORP
The Dial Corp, a corporation organized and existing under the laws of the
State of Delaware, pursuant to Sections 103 and 253 of the General Corporation
Law of the State of Delaware, does hereby certify:
FIRST: That The Dial Corp (hereinafter the "Corporation") was incorporated
on December 16, 1991 under the name "The New Dial Corp." pursuant to the General
Corporation Law of the State of Delaware, the provisions of which permit the
merger of a subsidiary corporation organized and existing under the laws of said
State into a parent corporation organized and existing under the laws of said
State.
SECOND: That this Corporation owns one hundred percent (100%) of the
outstanding shares of stock of LEN Inc. (hereinafter "LEN"), a corporation
incorporated on the 7th day of May, 1996 pursuant to the General Corporation Law
of the State of Delaware.
THIRD: Effective as of August 15, 1996, the Corporation has distributed all
of the outstanding capital stock of The Dial Corporation, a wholly owned
subsidiary of the Corporation, to the stockholders of the Corporation.
FOURTH: That this Corporation, by the following resolution of its Board of
Directors, duly adopted by the Board at a meeting on the 30th day of May, 1996,
determined to and does hereby merge LEN into itself:
RESOLVED, that conditioned upon effectiveness of the distribution of all of
the outstanding capital stock of The Dial Corporation, a wholly owned subsidiary
of the Corporation, to the stockholders of the Corporation, the Board of
Directors approves the merger of LEN Inc., a wholly owned subsidiary of this
Corporation, with and into this Corporation, in which this Corporation will be
the surviving corporation and will assume all of the rights and obligations of
LEN Inc. in accordance with Section 253 of the Delaware General Corporation law
(the "DGCL") and pursuant to which the name of this Corporation shall be changed
to Viad Corp, and approves and adopts such merger; and that the officers of the
Corporation, and each of them, are authorized to execute and file a certificate
of ownership and merger in accordance with Section 253 of the DGCL.
IN WITNESS WHEREOF, said The Dial Corp has caused this Certificate to be
signed by Peter J. Novak, its Vice President - General Counsel this 15th day of
August, 1996.
THE DIAL CORP
By: /s/ Peter J. Novak
--------------------------
Vice President-General Counsel
CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF VIAD CORP
Viad Corp (the "Corporation"), a corporation organized and existing
under and by virtue of the laws of the State of Delaware (the "Corporation"),
pursuant to the provisions of the General Corporation Law of the State of
Delaware (the "DGCL"), DOES HEREBY CERTIFY:
FIRST: That, in accordance with the provisions of Sections 141 and 242
of the DGCL, the Board of Directors of the Corporation duly adopted resolutions
setting forth the following amendment to the Restated Certificate of
Incorporation of the Corporation (the "Amendment"), declaring the Amendment to
be advisable and calling for the submission of the proposed Amendment to the
stockholders of the Corporation for their consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that, in order to effect a reverse split of the Corporation's
common stock, the Board of Directors declares that it is advisable to amend
Article IV of the Restated Certificate of Incorporation of the Corporation, upon
approval by the requisite vote of the holders of the common stock of the
Corporation, by adding the following at the end of Paragraph A of Article IV:
Without regard to any other provision of the Restated Certificate of
Incorporation of the Corporation, as the same may be amended from time
to time, effective as of 12:01 a.m. New York City time, on July 1,
2004 (the "Effective Time"), each four (4) shares of common stock, par
value one dollar and fifty cents ($1.50) per share (the "Old Common
Stock"), of the Corporation issued and outstanding or held as treasury
shares immediately prior to the Effective Time, shall, automatically
and without any action on the part of the respective holders thereof,
be reclassified, combined and converted into one (1) share of common
stock, par value one dollar and fifty cents ($1.50) per share (the
"New Common Stock"), of the Corporation.
Notwithstanding the immediately preceding sentence, no fractional
shares of New Common Stock shall be issued to the holders of record of
Old Common Stock in connection with the foregoing reclassification of
shares of Old Common Stock. In lieu thereof, each holder of record of
Old Common Stock that would otherwise be entitled to receive a
fractional share of New Common Stock would be entitled, upon surrender
of certificates representing such shares, to cash payments in lieu of
the fractional shares to which the stockholders would otherwise be
entitled. The cash payments for the fractional shares shall be the
proportionate portions of the net proceeds from the sale of aggregated
fractional Viad shares on behalf of all holders of such fractional
shares. The ownership of a fractional interest shall not give the
holder any voting dividend or other rights, except for the right to
receive cash payment. Whether or not the reverse stock split provided
above would result in fractional shares for a holder of record shall
be determined on the
basis of the total number of shares of Old Common Stock held by such
holder of record at the time the reverse stock split occurs.
Each stock certificate that, immediately prior to the Effective Time,
represented shares of Old Common Stock shall, from and after the
Effective Time, automatically and without the necessity of presenting
the same for exchange, represent that number of whole shares of New
Common Stock into which the shares of Old Common Stock represented by
such certificate shall have been reclassified (as well as the right to
receive cash in lieu of any fractional shares of New Common Stock as
set forth above); provided, however, that each holder of record of a
certificate that represented shares of Old Common Stock shall be
entitled to receive, upon surrender of such certificate, a new
certificate representing the number of whole shares of New Common
Stock into which the shares of Old Common Stock represented by such
certificate shall have been reclassified, as well as any cash in lieu
of fractional shares of New Common Stock to which such holder may be
entitled pursuant to the immediately preceding paragraph. The New
Common Stock issued in this exchange shall have the same rights,
preferences and privileges as the Common Stock (as defined above).
SECOND: That the Amendment was submitted for stockholder approval and
that at the annual meeting of stockholders of the Corporation held on May 11,
2004, a majority of the outstanding stock of the Corporation entitled to vote as
a class voted to approve the foregoing amendment in accordance with the
provisions of the Restated Certificate of Incorporation of the Corporation and
the DGCL.
THIRD: That the Amendment was duly approved and adopted in accordance
with the applicable provisions of Section 242 of the DGCL.
FOURTH: That the Amendment shall be effective as of 12:01 a.m. New
York City time on July 1, 2004.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by Robert H. Bohannon, its Chairman and Chief Executive
Officer dated as of this 30th day of June, 2004.
VIAD CORP
/s/ Robert H. Bohannon
-----------------------------------------
Name: Robert H. Bohannon
Title: Chairman & Chief Executive Officer