EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SEALED AIR CORPORATION
FIRST: The name of the corporation is Sealed Air
Corporation (the Corporation ).
SECOND: The registered office of the Corporation in the
State of Delaware is to be located at The Prentice-Hall
Corporation System, Inc., 1013 Centre Road, Wilmington, New
Castle County, Delaware 19805. Its registered agent at such
address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 450,000,000,
consisting of 400,000,000 shares of Common Stock, par value $0.10
per share (the Common Stock ), and 50,000,000 shares of
Preferred Stock, par value $0.10 per share (the Preferred
Stock ).
The Preferred Stock may be issued from time to time in one
or more series. The powers, designations, preferences and other
rights and qualifications, limitations or restrictions of the
Preferred Stock of each series shall be such as are stated and
expressed in this Article Fourth and, to the extent not stated
and expressed herein, shall be such as may be fixed by the Board
of Directors (authority so to do being hereby expressly granted)
and stated and expressed in a resolution or resolutions adopted
by the Board of Directors providing for the initial issue of
Preferred Stock of such series. Such resolution or resolutions
shall (a) fix the dividend rights of holders of shares of such
series, (b) fix the terms on which stock of such series may be
redeemed if the shares of such series are to be redeemable, (c)
fix the rights of the holders of stock of such series upon
dissolution or any distribution of assets, (d) fix the terms or
amount of the sinking fund, if any, to be provided for the
purchase or redemption of stock of such series, (e) fix the terms
upon which the stock of such series may be converted into or
exchanged for stock of any other class or classes or of any one
or more series of Preferred Stock if the shares of such series
are to be convertible or exchangeable, (f) fix the voting rights,
if any, of the shares of such series and (g) fix such other
powers, designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations
or restrictions thereof desired to be so fixed.
Except to the extent otherwise provided in the resolution or
resolutions of the Board of Directors providing for the initial
issue of shares of a particular series or expressly required by
law, holders of shares of Preferred Stock of any series shall be
entitled to one vote for each share thereof so held, shall vote
share for share with the holders of the Common Stock without
distinction as to class and shall not be entitled to vote
separately as a class or series of a class. The number of shares
of Preferred Stock authorized to be issued may be increased or
decreased from time to time by the affirmative vote of the
holders of a majority of the voting power of the then outstanding
Voting Stock, and the holders of the Preferred Stock shall not be
entitled to vote separately as a class or series of a class on
any such increase or decrease. For the purposes of this Amended
and Restated 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.
All shares of any one series of Preferred Stock shall be
identical with each other in all respects except that shares of
any one series issued at different times may differ as to the
dates from which dividends thereon shall accumulate, and all
series of Preferred Stock shall rank equally and be identical in
all respects except as specified in the respective resolutions of
the Board of Directors providing for the initial issue thereof.
Subject to the prior and superior rights of the Preferred Stock
as set forth in any resolution or resolutions of the Board of
Directors providing for the initial issuance of any particular
series of Preferred Stock, such dividends (payable in cash, stock
or otherwise) as may be determined by the Board of Directors may
be declared and paid on the Common Stock from time to time out of
any funds legally available therefor and the Preferred Stock
shall not be entitled to participate in any such dividend.
One series of Preferred Stock authorized hereby shall be
Series A Convertible Preferred Stock, as follows:
1. Number of Shares and Designation. 36,021,851 shares of
Preferred Stock of the Corporation shall constitute a series of
Preferred Stock designated as Series A Convertible Preferred
Stock (the Series A Preferred Stock ). The number of shares of
Series A Preferred Stock may be increased (to the extent of the
Corporation s authorized and unissued Preferred Stock) or
decreased (but not below the number of shares of Series A
Preferred Stock then outstanding) by further resolution duly
adopted by the Board of Directors and the filing of a certificate
of increase or decrease, as the case may be, with the Secretary
of State of Delaware.
2. Rank. The Series A Preferred Stock shall, with respect
to payment of dividends, redemption payments and rights upon
liquidation, dissolution or winding up of the affairs of the
Corporation, (i) rank senior and prior to the Common Stock and
each other class or series of equity securities of the
Corporation, whether currently issued or issued in the future,
that by its terms ranks junior to the Series A Preferred Stock
(whether with respect to payment of dividends, redemption
payments or rights upon liquidation, dissolution or winding up of
the affairs of the Corporation) (all of such equity securities,
including the Common Stock, are collectively referred to herein
as the Junior Securities ), (ii) rank on a parity with each
other class or series of equity securities of the Corporation
(other than the Common Stock), whether currently issued or issued
in the future, that does not by its terms expressly provide that
it ranks senior to or junior to the Series A Preferred Stock
(whether with respect to payment of dividends, redemption
payments or rights upon liquidation, dissolution or winding up of
the affairs of the Corporation) (all of such equity securities
are collectively referred to herein as the Parity Securities ),
and (iii) rank junior to each other class or series of equity
securities of the Corporation, whether currently issued or issued
in the future, that by its terms ranks senior to the Series A
Preferred Stock (whether with respect to payment of dividends,
redemption payments or rights upon liquidation, dissolution or
winding up of the affairs of the Corporation) (all of such equity
securities are collectively referred to herein as the Senior
Securities ). The respective definitions of Junior Securities,
Parity Securities and Senior Securities shall also include any
rights or options exercisable or exchangeable for or convertible
into any of the Junior Securities, Parity Securities or Senior
Securities, as the case may be.
3. Dividends.
(a) The holders of shares of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of
dividends, cash dividends at the annual rate of $2.00 per share.
Such dividends shall be payable quarterly in arrears, in equal
amounts, on April 1, July 1, October 1 and January 1 of each year
(unless such day is not a Business Day (as defined below), in
which event such dividends shall be payable on the next
succeeding Business Day), commencing July 1, 1998 (each such
payment date being a Dividend Payment Date and from the date of
issuance until the first Dividend Payment Date and each such
quarterly period thereafter being a Dividend Period ).
Dividends on shares of Series A Preferred Stock shall be
cumulative from the date of issue, whether or not in any Dividend
Period there shall be funds of the Corporation legally available
for the payment of dividends. The amount of dividends payable
for each full Dividend Period shall be computed by dividing the
annual dividend rate by four. The amount of dividends payable on
the Series A Preferred Stock for the initial Dividend Period, or
for any other period shorter or longer than a full Dividend
Period, shall be computed on the basis of a 360-day year of
twelve 30-day months. As used herein, the term Business Day
means any day except a Saturday, Sunday or day on which banking
institutions are legally authorized to close in the City of New
York.
(b) Each dividend shall be payable to the holders of record
of shares of Series A Preferred Stock as they appear on the stock
records of the Corporation at the close of business on such
record dates (each, a Dividend Payment Record Date ), which
shall be not more than 60 days nor less than 10 days preceding
the Dividend Payment Date thereof, as shall be fixed by the Board
of Directors. Accrued and unpaid dividends for any past Dividend
Periods may be declared and paid at any time, without reference
to any Dividend Payment Date, to holders of record on such date,
not more than 60 days nor less than 10 days preceding the payment
date thereof, as may be fixed by the Board of Directors. No
interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments on the Series A
Preferred Stock that may be in arrears.
(c) Except as described in the next succeeding sentence, so
long as any shares of Series A Preferred Stock are outstanding,
(i) no dividends shall be declared or paid or set apart for
payment, or other distribution declared or made, on any Parity
Securities for any period unless the Corporation has paid or
contemporaneously pays or declares and sets apart for payment on
the Series A Preferred Stock all accrued and unpaid dividends for
all Dividend Periods terminating on or prior to the date of
payment of such dividends, and (ii) no dividends shall be
declared or paid or set apart for payment, or other distribution
declared or made, on the Series A Preferred Stock for any
Dividend Period unless the Corporation has paid or
contemporaneously pays or declares and sets apart for payment on
any Parity Securities all accrued and unpaid dividends for all
dividend payment periods terminating on or prior to the Dividend
Payment Date for such dividends. Unless and until dividends
accrued but unpaid in respect of all past Dividend Periods with
respect to the Series A Preferred Stock and all past dividend
periods with respect to any Parity Securities at the time
outstanding shall have been paid in full or a sum sufficient for
such payment is set apart, all dividends declared by the
Corporation upon shares of Series A Preferred Stock and upon all
Parity Securities shall be declared ratably in proportion to the
respective amounts of dividends accrued and unpaid on the Series
A Preferred Stock and Parity Securities.
(d) So long as any shares of Series A Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart
for payment, or other distribution declared or made, upon any
Junior Securities (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or
purchase shares of Junior Securities), nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other
than a redemption, purchase or other acquisition of shares of
Common Stock made for purposes of any employee or director
incentive or benefit plans or arrangements of the Corporation or
any subsidiary of the Corporation) for any consideration (nor
shall any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such Junior Securities)
by the Corporation, directly or indirectly (except by conversion
into or exchange for Junior Securities), unless in each case (i)
the full cumulative dividends on all outstanding shares of Series
A Preferred Stock and any other Parity Securities shall have been
paid or set apart for payment for all past Dividend Periods with
respect to the Series A Preferred Stock and all past dividend
periods with respect to such Parity Securities and (ii)
sufficient funds shall have been paid or set apart for the
payment of the dividend for the current Dividend Period with
respect to the Series A Preferred Stock and for the current
dividend period with respect to such Parity Securities.
(e) The Corporation shall not, directly or indirectly, make
any payment on account of any purchase, redemption, retirement or
other acquisition of any Parity Securities (other than for
consideration payable solely in Junior Securities) unless all
accrued and unpaid dividends on the Series A Preferred Stock for
all Dividend Payment Periods ending on or before such payment for
such Parity Securities shall have been paid or declared and set
apart for payment.
(f) If at any time the Corporation issues any Senior
Securities and the Corporation shall have failed to declare and
pay or set apart for payment accrued and unpaid dividends on such
Senior Securities, in whole or in part, then (except to the
extent allowed by the terms of the Senior Securities) no
dividends shall be declared or paid or set apart for payment on
the Series A Preferred Stock unless and until all accrued and
unpaid dividends with respect to the Senior Securities, including
the full dividends for the then-current dividend period, shall
have been declared and paid or set apart for payment.
4. Liquidation Preference.
(a) The liquidation preference for the shares of Series A
Preferred Stock shall be $50.00 per share, plus an amount equal
to the dividends accrued and unpaid thereon, whether or not
declared, to the payment date (the Liquidation Value ).
(b) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
holders of shares of Series A Preferred Stock shall not be
entitled to receive the Liquidation Value of such shares until
payment in full or provision has been made for the payment in
full of all claims of creditors of the Corporation and the
liquidation preferences for all Senior Securities, and shall be
entitled to receive the Liquidation Value of such shares before
any payment or distribution of any assets of the Corporation
shall be made or set apart for holders of any Junior Securities.
Subject to clause (i) above, if the assets of the Corporation are
not sufficient to pay in full the Liquidation Value payable to
the holders of shares of Series A Preferred Stock and the
liquidation preference payable to the holders of any Parity
Securities, then such assets, or the proceeds thereof, shall be
distributed among the holders of shares of Series A Preferred
Stock and any such other Parity Securities ratably in accordance
with the Liquidation Value for the Series A Preferred Stock and
the liquidation preference for the Parity Securities,
respectively. Upon payment in full of the Liquidation Value to
which the holders of shares of Series A Preferred Stock are
entitled, the holders of shares of Series A Preferred Stock will
not be entitled to any further participation in any distribution
of assets of the Corporation.
(c) Neither a consolidation or merger of the Corporation
with or into any other entity, nor a merger of any other entity
with or into the Corporation, nor a sale or transfer of all or
any part of the Corporation s assets for cash, securities or
other property shall be considered a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section
4.
5. Redemption.
(a) Optional Redemption. The Series A Preferred Stock
shall not be redeemable prior to March 31, 2001. During the
period from March 31, 2001 until March 31, 2003, the Corporation
may redeem at its option shares of Series A Preferred Stock in
accordance with this Section 5 only if the last reported sales
price of a share of Common Stock in its principal trading market
for any 20 trading days within a period of 30 consecutive trading
days ending on the trading day prior to the date of mailing the
notice of redemption is at least $70.6563 (subject to equitable
adjustment in circumstances giving rise to adjustment of the
Conversion Price under Section 7(c)). At any time on or after
March 31, 2001, to the extent the Corporation shall have funds
legally available to redeem shares of Series A Preferred Stock
and if permitted by the immediately preceding sentence, the
Corporation may redeem shares of Series A Preferred Stock, in
whole or in part, at the option of the Corporation, at the
applicable cash redemption price per share set forth below for
any redemption during the 12-month period beginning on March 31
of the year indicated:
Year Redemption Price Per Share
2001 $51.40
2002 $51.20
2003 $51.00
2004 $50.80
2005 $50.60
2006 $50.40
2007 $50.20
Thereafter $50.00
plus, in each case, an amount equal to the dividends accrued and
unpaid thereon, whether or not declared, up to but not including
the redemption date. From and after March 31, 2008, the
Corporation may redeem shares of Series A Preferred Stock, at any
time in whole or in part, at the option of the Corporation, at a
cash redemption price per share of $50.00 plus an amount equal to
the dividends accrued and unpaid thereon, whether or not
declared, up to but not including the redemption date.
(b) Mandatory Redemption. To the extent the Corporation
shall have funds legally available for such payment, on March 31,
2018 (the Mandatory Redemption Date ), the Corporation shall
redeem all outstanding shares of Series A Preferred Stock at a
redemption price of $50.00 per share in cash, together with
accrued and unpaid dividends thereon, whether or not declared, up
to but not including such redemption date, without interest. If
the Corporation is unable or shall fail to discharge its
obligation to redeem all outstanding shares of Series A Preferred
Stock on the Mandatory Redemption Date (the Mandatory Redemption
Obligation ): (i) dividends on the Series A Preferred Stock
shall continue to accrue, without interest, in accordance with
Section 3, and (ii) the Mandatory Redemption Obligation shall be
discharged as soon thereafter as the Corporation is able to
discharge such Mandatory Redemption Obligation. If and for so
long as any Mandatory Redemption Obligation with respect to the
Series A Preferred Stock shall not be fully discharged on the
Mandatory Redemption Date, the Corporation shall not (x) directly
or indirectly, redeem, purchase, or otherwise acquire any Parity
Securities or discharge any mandatory or optional redemption,
sinking fund or other similar obligation in respect of any Parity
Securities (except in connection with a redemption, sinking fund
or other similar obligation to be satisfied pro rata with the
Series A Preferred Stock) or (y) declare or pay or set apart for
payment any dividends or other distributions upon any Junior
Securities, or, directly or indirectly, discharge any mandatory
or optional redemption, sinking fund or other similar obligation
in respect of any Junior Securities.
6. Procedures for Redemption.
(a) If fewer than all of the outstanding shares of Series A
Preferred Stock are to be redeemed pursuant to Section 5, the
shares shall be redeemed on a pro rata basis (according to the
number of shares of Series A Preferred Stock held by each holder,
with any fractional shares rounded to the nearest whole share) or
in such other manner as the Board of Directors may determine, as
may be prescribed by resolution of the Board of Directors.
Notwithstanding the provisions of Section 5 and this Section 6,
unless full cumulative cash dividends (whether or not declared)
on all outstanding shares of Series A Preferred Stock shall have
been paid or contemporaneously are declared and paid or set apart
for payment for all Dividend Periods terminating on or prior to
the applicable redemption date, none of the shares of Series A
Preferred Stock shall be redeemed, and no sum shall be set aside
for such redemption, unless shares of Series A Preferred Stock
are redeemed pro rata.
(b) In the event of a redemption of shares of Series A
Preferred Stock pursuant to Section 5, notice of such redemption
shall be given by first class mail, postage prepaid, mailed not
less than 15 days nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed at
such holder s address as the same appears on the stock register
of the Corporation; provided that neither the failure to give
such notice nor any defect therein shall affect the validity of
the giving of notice for the redemption of any share of Series A
Preferred Stock to be redeemed, except as to the holder to whom
the Corporation has failed to give said notice or except as to
the holder whose notice was defective. Each such notice shall
state: (i) the redemption date; (ii) the number of shares of
Series A Preferred Stock to be redeemed and, if fewer than all
the shares held by such holder are to be redeemed, the number of
shares to be redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price;
and (v) that dividends on the shares to be redeemed will cease to
accrue on such redemption date. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly
given whether or not the holder receives the notice.
(c) If a notice of redemption has been given pursuant to
Section 6(b) and if, on or before the redemption date, the funds
necessary for such redemption (including all dividends on the
shares of Series A Preferred Stock to be redeemed that will
accrue to but not including the redemption date) shall have been
set aside by the Corporation, separate and apart from its other
funds, in trust for the pro rata benefit of the holders of the
shares so called for redemption, then on the redemption date,
notwithstanding that any certificates for such shares have not
been surrendered for cancellation, (i) dividends shall cease to
accrue on the shares of Series A Preferred Stock to be redeemed,
(ii) the holders of such shares shall cease to be stockholders
with respect to those shares, shall have no interest in or claims
against the Corporation by virtue thereof and shall have no
voting or other rights with respect thereto, except the
conversion rights provided in Section 7 (in accordance with
Section 6(e)) and the right to receive the monies payable upon
such redemption, without interest thereon, upon surrender (and
endorsement, if required by the Corporation) of their
certificates, and (iii) the shares evidenced thereby shall no
longer be outstanding. Subject to applicable escheat laws, any
monies so set aside by the Corporation and unclaimed at the end
of two years from the redemption date shall revert to the general
funds of the Corporation, after which reversion the holders of
such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of the
redemption price, without interest. Any interest accrued on
funds so deposited shall belong to the Corporation and be paid
thereto from time to time.
(d) Upon surrender in accordance with the Corporation s
notice of redemption of the certificates for any shares so
redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the
redemption price aforesaid. In case fewer than all the shares
represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(e) If a notice of redemption has been given pursuant to
Section 6(b) and any holder of shares of Series A Preferred Stock
shall, prior to the close of business on the Business Day
preceding the redemption date, give written notice to the
Corporation pursuant to Section 7 of the conversion of any or all
of the shares to be redeemed held by the holder (accompanied by a
certificate or certificates for such shares, duly endorsed or
assigned to the Corporation, and any necessary transfer tax
payment, as required by Section 7), then such redemption shall
not become effective as to such shares to be converted and such
conversion shall become effective as provided in Section 7,
whereupon any funds deposited by the Corporation for the
redemption of such shares shall (subject to any right of the
holder of such shares to receive the dividend payable thereon as
provided in Section 7) immediately upon such conversion be
returned to the Corporation or, if then held in trust by the
Corporation, shall automatically and without further corporate
action or notice be discharged from the trust.
7. Conversion.
(a) Right to Convert.
(i) Subject to the provisions of this Section 7, each
holder of shares of Series A Preferred Stock shall have the
right, at any time and from time to time, at such holder s
option, to convert any or all of such holder s shares of Series A
Preferred Stock, in whole or in part, into fully paid and
non-assessable shares of Common Stock at the conversion price of
$56.525 per share of Common Stock, subject to adjustment as
described in Section 7(c) (as adjusted, the Conversion Price ).
The number of shares of Common Stock into which a share of the
Series A Preferred Stock shall be convertible (calculated as to
each conversion to the nearest 1/1,000,000th of a share) shall be
determined by dividing $50.00 by the Conversion Price in effect
at the time of conversion.
(ii) If shares of Series A Preferred Stock are called for
redemption in accordance with Section 5(a), the right to convert
shares so called for redemption shall terminate at the close of
business on the Business Day immediately preceding the date fixed
for redemption unless the Corporation shall default in making
payment of the amount payable upon such redemption, in which case
the conversion rights for such shares shall continue.
(b) Mechanics of Conversion.
(i) To exercise the conversion right, the holder of shares
of Series A Preferred Stock to be converted shall surrender the
certificate or certificates representing such shares at the
office of the Corporation (or any transfer agent of the
Corporation previously designated by the Corporation to the
holders of Series A Preferred Stock for this purpose) with a
written notice of election to convert completed and signed,
specifying the number of shares to be converted. Unless the
shares issuable upon conversion are to be issued in the same name
as the name in which such shares of Series A Preferred Stock are
registered, each share surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to
the Corporation, duly executed by the holder or the holder s duly
authorized attorney and an amount sufficient to pay any transfer
or similar tax in accordance with Section 7(b)(vii). As promptly
as practicable after the surrender by the holder of the
certificates for shares of Series A Preferred Stock as aforesaid,
the Corporation shall issue and shall deliver to such holder, or
on the holder s written order to the holder s transferee, a
certificate or certificates for the whole number of shares of
Common Stock issuable upon the conversion of such shares and a
check payable in an amount corresponding to any fractional
interest in a share of Common Stock as provided in Section
7(b)(viii).
(ii) Each conversion shall be deemed to have been effected
immediately prior to the close of business on the first Business
Day (the Conversion Date ) on which the certificates for shares
of Series A Preferred Stock shall have been surrendered and such
notice received by the Corporation as aforesaid. At such time on
the Conversion Date:
(w) the person in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder of
record of the shares of Common Stock represented thereby at such
time;
(x) such shares of Series A Preferred Stock shall no longer
be deemed to be outstanding and all rights of a holder with
respect to such shares surrendered for conversion shall
immediately terminate except the right to receive the Common
Stock and other amounts payable pursuant to this Section 7;
(y) in lieu of dividends on such Series A Preferred Stock
pursuant to Section 3, such shares of Series A Preferred Stock
shall participate equally and ratably with the holders of shares
of Common Stock in all dividends paid on the Common Stock; and
(z) the right of the Corporation to redeem such shares of
Series A Preferred Stock shall terminate, regardless of whether a
notice of redemption has been mailed as aforesaid.
All shares of Common Stock delivered upon conversion of the
Series A Preferred Stock will, upon delivery, be duly and validly
issued and fully paid and non-assessable, free of all liens and
charges and not subject to any preemptive rights.
(iii) Holders of shares of Series A Preferred Stock at the
close of business on a Dividend Payment Record Date shall be
entitled to receive the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the
conversion thereof following such Dividend Payment Record Date
and prior to such Dividend Payment Date. However, shares of
Series A Preferred Stock surrendered for conversion during the
period between the close of business on any Dividend Payment
Record Date and the opening of business on the corresponding
Dividend Payment Date (except shares converted after the issuance
of a notice of redemption during such period, which shall be
entitled to such dividend on the Dividend Payment Date) must be
accompanied by payment of an amount equal to the dividend payable
on such shares on such Dividend Payment Date; provided that
notwithstanding such surrender of shares for conversion after
such Dividend Payment Record Date, the holders thereof at the
close of business on such Dividend Payment Record Date shall be
entitled to receive the dividend payable on such shares on the
corresponding Dividend Payment Date. A holder of shares of
Series A Preferred Stock on a Dividend Payment Record Date who
(or whose transferee) tenders any such shares for conversion into
shares of Common Stock on such Dividend Payment Date will receive
the dividend payable by the Corporation on such shares of Series
A Preferred Stock on such date, and the converting holder need
not include payment of the amount of such dividend upon surrender
of shares of Series A Preferred Stock for conversion.
(iv) Except as provided in clause (iii) above and in Section
7(c), the Corporation shall make no payment or adjustment for
accrued and unpaid dividends on shares of Series A Preferred
Stock, whether or not in arrears, on conversion of such shares or
for dividends in cash on the shares of Common Stock issued upon
such conversion.
(v) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, such
number of its authorized but unissued shares of Common Stock as
shall be required for the purpose of effecting conversions of the
Series A Preferred Stock. Prior to the delivery of any
securities which the Corporation shall be obligated to deliver
upon conversion of the Series A Preferred Stock, the Corporation
shall comply with all applicable federal and state laws and
regulations which require action to be taken by the Corporation.
(vi) The Corporation will pay any and all documentary stamp
or similar issue or transfer taxes payable in respect of the
issuance or delivery of shares of Common Stock on conversion of
the Series A Preferred Stock pursuant hereto; provided that the
Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance or
delivery of shares of Common Stock in a name other than that of
the holder of the Series A Preferred Stock to be converted, and
no such issuance or delivery shall be made unless and until the
person requesting such issuance or delivery has paid to the
Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(vii) In connection with the conversion of any shares of
Series A Preferred Stock, no fractions of shares of Common Stock
shall be issued, but in lieu thereof the Corporation shall pay a
cash adjustment in respect of such fractional interest in an
amount equal to such fractional interest multiplied by the Daily
Price (as defined below) per share of Common Stock on the
Conversion Date. In the absence of a Daily Price, the Board of
Directors shall in good faith determine the current market price
on such basis as it considers appropriate, and such current
market price shall be used to calculate the cash adjustment. As
used herein, Daily Price means (w) if the shares of such class
of Common Stock are then listed and traded on the New York Stock
Exchange, Inc. ( NYSE ), the closing price on such day as
reported on the NYSE Composite Transactions Tape; (x) if the
shares of such class of Common Stock are not then listed and
traded on the NYSE, the closing price on such day as reported by
the principal national securities exchange on which the shares
are listed and traded; (y) if the shares of such class of Common
Stock are not then listed and traded on any such securities
exchange, the last reported sale price on such day on the
National Market of the National Association of Securities
Dealers, Inc. Automated Quotation System ( NASDAQ ); or (z) if
the shares of such class of Common Stock are not then traded on
the NASDAQ National Market, the average of the highest reported
bid and lowest reported asked price on such day, as reported by
NASDAQ.
(c) Adjustments to Conversion Price. The Conversion Price
shall be adjusted from time to time as follows:
(i) If, at any time after the date of issuance of the
Series A Preferred Stock, the Corporation shall pay a dividend
or make a distribution on any class of its capital stock in
shares of its Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its
outstanding shares of Common Stock into a smaller number of
shares, the Conversion Price in effect immediately prior thereto
shall be adjusted as provided below so that the Conversion Price
thereafter shall be determined by multiplying the Conversion
Price at which the shares of Series A Preferred Stock were
theretofore convertible by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding
immediately prior to such action, and the denominator of which
shall be the number of shares of Common Stock outstanding
immediately following such action. Such adjustment shall be made
whenever any event listed above shall occur and shall become
effective retroactively immediately after the record date in the
case of a dividend and immediately after the effective date in
the case of a subdivision or combination.
(ii) If, at any time after the date of issuance of the
Series A Preferred Stock, the Corporation shall issue rights or
warrants to all holders of its Common Stock entitling them (for a
period expiring within 45 days after the record date for
determining stockholders entitled to receive such rights or
warrants) to subscribe for or purchase shares of Common Stock at
a price per share less than the current market price per share of
Common Stock at the record date therefor (as determined in
accordance with the provisions of Section 7(c)(iv)), the Current
Market Price ), or in case the Corporation shall issue to all
holders of its Common Stock other securities convertible into or
exchangeable for Common Stock for a consideration per share of
Common Stock deliverable upon conversion or exchange thereof less
than the Current Market Price, then the Conversion Price in
effect immediately prior thereto shall be adjusted as provided
below so that the Conversion Price therefor shall be equal to the
price determined by multiplying the Conversion Price at which
shares of Series A Preferred Stock were theretofore convertible
by a fraction of which the numerator shall be the sum of (1) the
number of shares of Common Stock outstanding on the date of
issuance of the convertible or exchangeable securities, rights or
warrants and (2) the number of additional shares of Common Stock
that the aggregate offering price for the number of shares of
Common Stock so offered would purchase at the Current Market
Price per share of Common Stock, and of which the denominator
shall be the sum of the number of shares of Common Stock
outstanding on the date of issuance of such convertible or
exchangeable securities, rights or warrants and the number of
additional shares of Common Stock offered for subscription or
purchase, or issuable upon such conversion or exchange. Such
adjustment shall be made whenever such convertible or
exchangeable securities, rights or warrants are issued, and shall
become effective immediately after the record date for the
determination of stockholders entitled to receive such
securities. However, upon the expiration of any right or warrant
to purchase Common Stock, the issuance of which resulted in an
adjustment in the Conversion Price pursuant to this Section
7(c)(ii), if any such right or warrant shall expire and shall not
have been exercised, the Conversion Price shall be recomputed
immediately upon such expiration and effective immediately upon
such expiration shall be increased to the price it would have
been (but reflecting any other adjustments to the Conversion
Price made pursuant to the provisions of this Section 7(c) after
the issuance of such rights or warrants) had the adjustment of
the Conversion Price made upon the issuance of such rights or
warrants been made on the basis of offering for subscription or
purchase only that number of shares of Common Stock actually
purchased upon the exercise of such rights or warrants. No
further adjustment shall be made upon exercise of any right,
warrant, convertible security or exchangeable security if any
adjustment shall have been made upon issuance of such security.
(iii) If, at any time after the date of issuance of the
Series A Preferred Stock, the Corporation shall distribute to all
holders of its Common Stock (including any dividend paid in
connection with a consolidation or merger in which the
Corporation is the continuing corporation) any shares of capital
stock of the Corporation or its subsidiaries (other than Common
Stock) or evidences of its indebtedness, cash or other assets
(excluding dividends payable solely in cash that may from time to
time be fixed by the Board of Directors, or dividends or
distributions in connection with the liquidation, dissolution or
winding up of the Corporation) or rights or warrants to subscribe
for or purchase any of its securities or those of its
subsidiaries or securities convertible or exchangeable for Common
Stock (excluding those securities referred to in Section
7(c)(ii)), then in each such case the Conversion Price in effect
immediately prior thereto shall be adjusted as provided below so
that the Conversion Price thereafter shall be equal to the price
determined by multiplying (A) the Conversion Price in effect on
the record date mentioned below by (B) a fraction, the numerator
of which shall be the Current Market Price per share of Common
Stock on the record date mentioned below less the then fair
market value (as determined by the Board of Directors, whose good
faith determination shall be conclusive) as of such record date
of the assets, evidences of indebtedness or securities so paid
with respect to one share of Common Stock, and the denominator of
which shall be the Current Market Price per share of Common Stock
on such record date; provided, however, that in the event the
then fair market value (as so determined) so paid with respect to
one share of Common Stock is equal to or greater than the Current
Market Price per share of Common Stock on the record date
mentioned above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of shares of Series A
Preferred Stock shall have the right to receive the amount and
kind of assets, evidences of indebtedness, or securities such
holder would have received had such holder converted each such
share of Series A Preferred Stock immediately prior to the record
date for such dividend. Such adjustment shall be made whenever
any such payment is made, and shall become effective
retroactively immediately after the record date for the
determination of stockholders entitled to receive the payment.
(iv) For the purpose of any computation under Sections
7(c)(ii) or 7(c)(iii), the Current Market Price per share of
Common Stock at any date shall be deemed to be the average Daily
Price for the 30 consecutive trading days commencing 35 trading
days before the day in question.
(v) No adjustment in the Conversion Price shall be required
unless the adjustment would require an increase or decrease of at
least 1% in the Conversion Price then in effect; provided,
however, that any adjustments that by reason of this Section
7(c)(v) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 7(c) shall be made to the nearest
cent.
(vi) In the event that, at any time as a result of an
adjustment made pursuant to Section 7(c)(i) or 7(c)(iii), the
holder of any shares of Series A Preferred Stock thereafter
surrendered for conversion shall become entitled to receive any
shares of the Corporation or its subsidiaries, other than shares
of the Common Stock, thereafter the number of such other shares
so receivable upon conversion of any share of Series A Preferred
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 Common Stock contained in Sections
7(c)(i) through 7(c)(v), and the other provisions of this Section
7 with respect to the Common Stock shall apply on like terms to
any such other shares.
(vii) Whenever the Conversion Price is adjusted, as herein
provided, the Corporation shall promptly file with the transfer
agent for the Series A Preferred Stock a certificate of an
officer of the Corporation setting forth the Conversion Price
after the adjustment and setting forth a brief statement of the
facts requiring such adjustment and a computation thereof. The
certificate shall be prima facie evidence of the correctness of
the adjustment. The Corporation shall promptly cause a notice of
the adjusted Conversion Price to be mailed to each registered
holder of shares of Series A Preferred Stock.
(viii) In case of any reclassification of the Common Stock,
any consolidation of the Corporation with, or merger of the
Corporation into, any other entity, any merger of another entity
into the Corporation (other than a merger that does not result in
any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Corporation), any sale
or transfer of all or substantially all of the assets of the
Corporation or any compulsory share exchange pursuant to which
share exchange the Common Stock is converted into other
securities, cash or other property, then lawful provision shall
be made as part of the terms of such transaction whereby the
holder of each share of Series A Preferred Stock then outstanding
shall have the right thereafter, during the period such share
shall be convertible, to convert such share only into the kind
and amount of securities, cash and other property receivable upon
the reclassification, consolidation, merger, sale, transfer or
share exchange by a holder of the number of shares of Common
Stock of the Corporation into which a share of Series A Preferred
Stock would have been convertible immediately prior to the
reclassification, consolidation, merger, sale, transfer or share
exchange. The Corporation, the person formed by the
consolidation or resulting from the merger or which acquires such
assets or which acquires the Corporation s shares, as the case
may be, shall make provisions in its certificate or articles of
incorporation or other constituent documents to establish such
rights and to ensure that the dividend, voting and other rights
of the holders of Series A Preferred Stock established herein are
unchanged, except as permitted by Section 9 and applicable law.
The certificate or articles of incorporation or other constituent
documents shall provide for adjustments, which, for events
subsequent to the effective date of the certificate or articles
of incorporation or other constituent documents, shall be as
nearly equivalent as may be practicable to the adjustments
provided for in this Section 7. The provisions of this Section
7(c)(viii) shall similarly apply to successive reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
(d) Optional Reduction in Conversion Price. The
Corporation may at its option reduce the Conversion Price from
time to time by any amount for any period of time if the period
is at least 20 days and if the reduction is irrevocable during
the period. Whenever the Conversion Price is so reduced, the
Corporation shall mail to holders of record of the Series A
Preferred Stock a notice of the reduction at least 15 days before
the date the reduced Conversion Price takes effect, stating the
reduced Conversion Price and the period it will be in effect. A
voluntary reduction of the Conversion Price does not change or
adjust the Conversion Price otherwise in effect for purposes of
Section 7(c).
8. Status of Shares. All shares of Series A Preferred
Stock that are at any time redeemed pursuant to Section 5 or
converted pursuant to Section 7 and all shares of Series A
Preferred Stock that are otherwise reacquired by the Corporation
shall (upon compliance with any applicable provisions of the laws
of the State of Delaware) have the status of authorized but
unissued shares of Preferred Stock, without designation as to
series, subject to reissuance by the Board of Directors as shares
of any one or more other series.
9. Voting Rights.
(a) The holders of record of shares of Series A Preferred
Stock shall not be entitled to any voting rights except as
hereinafter provided in this Section 9 or as otherwise provided
by law.
(b) The holders of the shares of Series A Preferred Stock
(i) shall be entitled to vote with the holders of the Common
Stock on all matters submitted for a vote of holders of Common
Stock (voting together with the holders of Common Stock as one
class), (ii) shall be entitled to a number of votes equal to the
number of votes to which shares of Common Stock issuable upon
conversion of such shares of Series A Preferred Stock would have
been entitled if such shares of Common Stock had been outstanding
at the time of the applicable vote and related record date and
(iii) shall be entitled to notice of any stockholders meeting in
accordance with the Certificate of Incorporation and Bylaws of
the Corporation.
(c) If and whenever six quarterly dividends (whether or not
consecutive) payable on the Series A Preferred Stock have not
been paid in full or if the Corporation shall have failed to
discharge its Mandatory Redemption Obligation on or after the
Redemption Date, the number of directors then constituting the
Board of Directors shall be increased by two and the holders of
shares of Series A Preferred Stock, together with the holders of
shares of every other series of preferred stock upon which like
rights to vote for the election of two additional directors have
been conferred and are exercisable (resulting from either the
failure to pay dividends or the failure to redeem) (any such
other series is referred to as the Preferred Shares ), voting as
a single class regardless of series, shall be entitled to elect
the two additional directors to serve on the Board of Directors
at any annual meeting of stockholders or special meeting held in
place thereof, or at a special meeting of the holders of the
Series A Preferred Stock and the Preferred Shares called as
hereinafter provided. Whenever all arrears in dividends on the
Series A Preferred Stock and the Preferred Shares then
outstanding shall have been paid and dividends thereon for the
current quarterly dividend period shall have been paid or
declared and set apart for payment, or the Corporation shall have
fulfilled its Mandatory Redemption Obligation, as the case may
be, then the right of the holders of the Series A Preferred Stock
and the Preferred Shares to elect such additional two directors
shall cease (but subject always to the same provisions for the
vesting of such voting rights in the case of any similar future
arrearages in six quarterly dividends or failure to fulfill any
Mandatory Redemption Obligation), and the terms of office of all
persons elected as directors by the holders of the Series A
Preferred Stock and the Preferred Shares shall forthwith
terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after such voting power shall
have been so vested in the holders of shares of Series A
Preferred Stock and the Preferred Shares, the secretary of the
Corporation may, and upon the written request of any holder of
Series A Preferred Stock (addressed to the secretary at the
principal office of the Corporation) shall, call a special
meeting of the holders of the Series A Preferred Stock and of the
Preferred Shares for the election of the two directors to be
elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation
for a special meeting of the stockholders or as required by law.
If any such special meeting required to be called as above
provided shall not be called by the secretary within 20 days
after receipt of any such request, then any holder of shares of
Series A Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the
stock records of the Corporation. The directors elected at any
such special meeting shall hold office until the next annual
meeting of the stockholders or special meeting held in lieu
thereof if such office shall not have previously terminated as
above provided. If any vacancy shall occur among the directors
elected by the holders of the Series A Preferred Stock and the
Preferred Shares, a successor shall be elected by the Board of
Directors, upon the nomination of the then-remaining director
elected by the holders of the Series A Preferred Stock and the
Preferred Shares or the successor of such remaining director, to
serve until the next annual meeting of the stockholders or
special meeting held in place thereof if such office shall not
have previously terminated as provided above.
(d) So long as any shares of Series A Preferred Stock are
outstanding:
(i) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that
purpose by holders of at least 66-2/3% of the outstanding
shares of Series A Preferred Stock, voting as a single
class, amend, alter or repeal any provision of the
Corporation s Certificate of Incorporation (by merger or
otherwise) so as to materially and adversely affect the
preferences, rights or powers of the Series A Preferred
Stock; provided that any such amendment, alteration or
repeal to create, authorize or issue any Junior Securities
or Parity Securities, or any security convertible into, or
exchangeable or exercisable for, shares of Junior Securities
or Parity Securities, shall not be deemed to have any such
material adverse effect;
(ii) the Corporation shall not, without the written
consent or affirmative vote at a meeting called for that
purpose of at least 66-2/3% of the votes entitled to be cast
by the holders of shares of Series A Preferred Stock and of
all other series of Preferred Stock upon which like rights
to vote upon the matters specified herein have been
conferred and are exercisable, voting as a single class
regardless of series, create, authorize or issue any Senior
Securities, or any security convertible into, or
exchangeable or exercisable for, shares of Senior
Securities; and
(iii) the Corporation shall not, without the
written consent or affirmative vote at a meeting called for
that purpose of at least a majority of the votes entitled to
be cast by the holders of shares of Series A Preferred Stock
and of all other series of Preferred Stock upon which like
rights to vote upon the matters specified herein have been
conferred and are exercisable, voting as a single class
regardless of series, create, authorize or issue any new
class of Parity Securities; provided that this clause (iii)
shall not limit the right of the Corporation to issue Parity
Securities in connection with any merger in which the
Corporation is the surviving entity;
provided that no such consent or vote of the holders of Series A
Preferred Stock shall be required if at or prior to the time when
such amendment, alteration or repeal is to take effect, or when
the issuance of any such securities is to be made, as the case
may be, all shares of Series A Preferred Stock at the time
outstanding shall have been called for redemption by the
Corporation and the funds necessary for such redemption shall
have been set aside in accordance with Sections 5 and 6.
(c) The consent or votes required in Sections 9(c) and 9(d)
shall be in addition to any approval of stockholders of the
Corporation which may be required by law or pursuant to any
provision of the Corporation s Certificate of Incorporation or
Bylaws, which approval shall be obtained by vote of the
stockholders of the Corporation in the manner provided in Section
9(b).
10. No Other Rights.
(a) The shares of Series A Preferred Stock shall not have
any relative, participating, optional or other special rights and
powers except as set forth herein or as may be required by law.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not
be subject to the payment of the corporate debts to any extent
whatever except as otherwise provided by law.
SEVENTH: In furtherance, and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
authorized:
A. To adopt, amend or repeal the by-laws of the
Corporation; provided, however, that the by-laws 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 by-
laws;
B. To authorize and cause to be executed mortgages and
liens, with or without limit as to amount, upon the real and
personal property of the Corporation;
C. To authorize the guaranty by the Corporation of
securities, evidences of indebtedness and obligations of
other persons, corporations and business entities;
D. By resolution adopted by a majority of the whole
board, to designate one or more committees, each committee
to consist of two or more of the directors of the
Corporation, which, to the extent provided in the
resolution, shall have and may exercise the powers of the
Board of Directors in the management of the business and
affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers which may require
it. Such committee or committees shall have such name or
names as may be determined from time to time by resolution
adopted by the Board of Directors. The Board of Directors
may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified
member at any meeting of the committee. The members of any
such committee present at any meeting and not disqualified
from voting may, whether or not they constitute a quorum,
unanimously appoint another member of the Board of Directors
to act at the meeting in the place of any absent or
disqualified member.
All corporate powers of the Corporation shall be exercised by the
Board of Directors except as otherwise provided herein or by law.
Notwithstanding anything contained in this Amended and Restated
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 paragraph A of this ARTICLE SEVENTH.
EIGHTH: Any property of the Corporation constituting less
than all of its assets including goodwill and its corporate
franchise, deemed by the Board of Directors to be not essential
to the conduct of the business of the Corporation, may be sold,
leased, exchanged or otherwise disposed of by authority of the
Board of Directors. All of the property and assets of the
Corporation including its goodwill and its corporate franchises,
may be sold, leased or exchanged upon such terms and conditions
and for such consideration (which may be in whole or in part
shares of stock and/or other securities of any other corporation
or corporations) as the Board of Directors shall deem expedient
and for the best interests of the Corporation, when and as
authorized by the affirmative vote of the holders of a majority
of the voting power of the then outstanding Voting Stock given at
a stockholders meeting duly called for that purpose upon at
least 20 days notice containing notice of the proposed sale,
lease or exchange.
NINTH: A director or officer of the Corporation shall not
be disqualified by his office from dealing or contracting with
the Corporation either as a vendor, purchaser or otherwise, nor
shall any transaction or contract of the Corporation be void or
voidable by reason of the fact that any director or officer or
any firm of which any director or officer is a member or any
corporation of which any director or officer is a stockholder,
officer or director, is in any way interested in such transaction
or contract, provided that such transaction or contract is or
shall be authorized, ratified or approved either (1) by a vote of
a majority of a quorum of the Board of Directors or of a
committee thereof, without counting in such majority any director
so interested (although any director so interested may be
included in such quorum), or (2) by a majority of a quorum of the
stockholders entitled to vote at any meeting. No director or
officer shall be liable to account to the Corporation for any
profits realized from any such transaction or contract
authorized, ratified or approved as aforesaid by reason of the
fact that he, or any firm of which he is a member or any
corporation of which he is a stockholder, officer or director,
was interested in such transaction or contract. Nothing herein
contained shall create liability in the events above described or
prevent the authorization, ratification or approval of such
contracts in any other manner permitted by law.
TENTH: Any contract, transaction or act of the Corporation
or of the Board of Directors which shall be approved or ratified
by a majority of a quorum of the stockholders entitled to vote at
any meeting shall be as valid and binding as though approved or
ratified by every stockholder of the Corporation; but any failure
of the stockholders to approve or ratify such contract,
transaction or act, when and if submitted, shall not be deemed in
any way to invalidate the same or to deprive the Corporation, its
directors or officers of their right to proceed with such
contract, transaction or act.
ELEVENTH: Each person who is or was or has agreed to become
a director or officer of the Corporation, and each such person
who is or was serving or who has 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 service with
respect to employee benefit plans (including the heirs,
executors, administrators or estate of such person), shall be
indemnified by the Corporation, in accordance with the by-laws 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 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 than or different from
that provided in this ARTICLE ELEVENTH. Any amendment or repeal
of this ARTICLE ELEVENTH shall not adversely affect any right or
protection existing hereunder in respect of any act or omission
occurring prior to such amendment or repeal.
TWELFTH: 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 (1) for any breach of the director s duty of
loyalty to the Corporation or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) under Section 174
of the General Corporation Law of the State of Delaware, or (4)
for any transaction from which the director derived an improper
personal benefit. Any amendment or repeal of this ARTICLE
TWELFTH 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.
THIRTEENTH: Whenever a compromise or arrangement is
proposed between this corporation and its creditors or any class
of them and/or between this corporation and its stockholders or
any class of them, any court of equitable jurisdiction within the
State of Delaware may, on the application in a summary way of
this corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this
corporation under Section 291 of Title 8 of the Delaware Code or
on the application of trustees in dissolution or of any receiver
or receivers appointed for this corporation under Section 279 of
Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be
summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the
said compromise or arrangement and the said reorganization shall,
if sanctioned by the court to which the said application has been
made, be binding on all the creditors or class of creditors,
and/or on all the stockholders or class of stockholders, of this
corporation, as the case may be, and also on this corporation.
FOURTEENTH: Meetings of stockholders and directors may be
held within or without the State of Delaware, as the by-laws may
provide. The books of account of the Corporation may be kept
(subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the by-laws of
the Corporation. Elections of directors need not be by written
ballot unless the by-laws of the Corporation shall so provide.
FIFTEENTH: Subject to the rights of the holders of any
series of Preferred Stock or any other series or class of stock
as set forth in this Amended and Restated 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 Amended and Restated 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 FIFTEENTH.
SIXTEENTH: Subject to the rights of the holders of any
series of Preferred Stock or any other series or class of stock
as set forth in this Amended and Restated Certificate of
Incorporation to elect additional directors under specified
circumstances, the number of directors of the Corporation shall
be fixed, and may be increased or decreased from time to time, in
such manner as may be prescribed by the by-laws.
Unless and except to the extent that the by-laws of the
Corporation shall so require, the election of directors of the
Corporation need not be by written ballot.
The directors, other than those who may be elected by the
holders of any series of Preferred Stock or any other series or
class of stock as set forth in this Amended and Restated
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 1997, another class
shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1998, and another class
shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1999. 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.
Subject to the rights of the holders of any series of
Preferred Stock or any other series or class of stock as set
forth in this Amended and Restated Certificate of Incorporation
to elect additional directors under specified circumstances, any
director may be removed from office at any time by the
shareholders, but only for cause.
Notwithstanding anything contained in this Amended and
Restated 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 SIXTEENTH.
SEVENTEENTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
certificate of incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.