EXHIBIT 3(i)
ARTICLES OF INCORPORATION
STATE OF CALIFORNIA
SECRETARY OF STATE
I, BILL JONES, Secretary of State of the State of California, hereby
certify:
That the attached transcript of 79 page(s) was prepared by and in this
office from the record on file, of which it purports to be a copy, and that it
is full, true and correct.
IN WITNESS WHEREOF, I execute this certificate and
affix the Great Seal of the State of California this
day of
AUG 0 1 2001
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-----------------------------------
/s/ Bill Jones
Secretary of State
Sec. State Form CE.1O8 (rev. 8'98)
ARTICLES OF INCORPORATION
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OF
THE TWENTIETH CENTURY INDEMNITY COMPANY
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KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have this day voluntarily associated ourselves
together for the purpose of forming a corporation under and pursuant to the laws
of the State of California, and we hereby certify:
ARTICLE I
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That the name of said corporation is:
THE TWENTIETH CENTURY INDEMNITY COMPANY.
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ARTICLE II
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The nature of the business of the corporation, and the purposes for which it is
formed are:
(a) The primary business in which this corporation intends to initially
engage is:
(1) To act as the agent, under Power of Attorney, or
otherwise, of any number of individuals, partnerships and/or corporations in the
exchange of reciprocal or interinsurance contracts, covering any and all forms
of hazards which may be lawfully insured against, except that of Life Insurance;
to execute contracts for and on behalf of such Subscribers, whether individually
or collectively, and to collect premiums and other fees for the same; to act as
agent for any such Subscribers in obtaining such insurance from other
individuals, partner-ships and/or corporations.
(2) To establish and maintain, upon behalf of such Subscribers,
out of the capital assets of this Company, or otherwise, a reserve in accordance
with law, to meet losses which may accrue and to pay out the funds of
Subscribers in meeting any such losses and any other expenses accruing in regard
thereto.
(3) To charge and receive from the Subscribers any such premiums
and/or fees a may be fixed in such reciprocal and/or inter-insurance contracts
and to disburse the same without restrictions, except those which may be
required by law in the maintaining of legal reserves to meet losses.
ARTICLE III
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The further general purposes for which this corporation is formed are:
(1) To purchase and otherwise acquire, become interested in, hold,
sell, mortgage, pledge or otherwise dispose of, or turn to account or realize
upon, all forms of securities, including stocks, bonds, debentures, notes,
evidences of indebtedness, certificates of indebtedness, certificates of
interest, commercial papers, mortgages, deeds of trust and other similar
instruments and rights, issued or created by corporations, domestic or foreign,
associations, firms, trustees, syndicates, individuals, governments, states,
municipalities, or other political divisions, or issued or created by others,
and to deal in and with the same, and to issue in exchange therefor or in
payment thereof its own stocks, bonds or other obligations or securities, or
otherwise pay therefor; to exercise in respect thereof any and all rights,
powers and privileges of individual ownership or interest therein, including the
right to vote thereon and to consent or otherwise act with respect to do any and
all acts and things for the preservation, protection, improvement, and
enhancement in value thereof or designed to accomplish any such purpose, and to
aid by loan, subsidy, guaranty, or in any other manner those issuing, creating
or responsible for any of such securities, all to such extent as a corporation
organized under Law may then lawfully do.
(2) To take, hold, manage or control escrow of any kind or nature
and to act as escrow or escrow holder in escrows of any and every kind.
(3) To investigate and report with respect to, and to undertake,
carry on, aid, assist or participate in the litigation or reorganization of
financial, commercial, mercantile, agricultural, industrial or other business
concerns, firms, associations and corporations, and in the course of such
business to acquire and dispose of, or otherwise turn to account, all or any
negotiable or transferable instruments or securities, including debentures,
bonds, notes, certificates of indebtedness, certificates of interest, and all
kinds of commercial paper.
(4) To purchase or otherwise acquire, sell or otherwise dispose
of, realize upon or otherwise turn to account, manage, liquidate or reorganize
the properties, assets, business, undertaking, enterprises or ventures, or any
part thereof, or corporations, associations, firms, individuals, syndicates and
others, to further and promote the general business interests of any thereof,
and to improve, extend and place upon a safe and more permanent foundation any
such business, undertaking, enterprise or venture.
(5) To act as financial, commercial or general agent or
representative of any corporation, association, firm, syndicate, individual or
others, and as such to develop, improve and extend the property, trade and
business interests thereof, and to aid any lawful enterprise in connection
therewith, and in connection with acting as such, or as agent or broker for any
principal to give any other aid or assistance.
(6) To promote and assist, financially or otherwise, corporations,
firms, syndicates, associations, individuals and others and to give any guaranty
in connection therewith or otherwise for the payment of money or for the
performance of any other undertaking or obligation.
(7) To borrow money, and for moneys borrowed or in payment for
property acquired, or for any other objects and purposes of the corporation or
otherwise in connection with the transaction of any part of its business, to
issue bonds, debentures, notes and other obligations, secured or unsecured, and
to mortgage, pledge or hypothecate any or all of its properties or assets an
security therefor. To make, accept, endorse, guarantee, execute and issue notes
and other obligations, to mortgage, pledge or hypothecate any stocks, bonds or
other evidences of indebtedness or securities and any other property held by it,
or in which it may be interested, and to loan money with or without collateral
or other security.
(8) To guarantee the payment of the principa1 at and/or interest
upon bonds, notes, or other evidences of secured indebtedness or obligations,
or the performance of the contracts or other undertakings of any corporation,
co-partnership, syndicate, individual or others, and, to such extent, to enter
into, make, perform and carry out contracts of every kind and any lawful
purpose, with any person, firm, association, corporation, syndicate or others.
(9) To purchase, hold, sell and transfer the shares of its own
capital stock; provided it shall not use its funds or property for the purchase
of its own shares of capital stock when such use would cause any impairment of
its capital; and provided further that shares of its own capital stock belonging
to it shall not be voted upon directly or indirectly.
(10) To purchase or otherwise acquire, hold, own, mortgage, sell,
convey, exchange, option, subdivide, or otherwise dispose of real and personal
property of every class and description and any estate or interest therein,
including leaseholds for any term, in any of the States, Districts, Territories
or Colonies of the United States, and in any and all foreign countries, subject
to the laws of such State, District, Territory, Colony or Country.
(11) To execute any and all bonds, documents, contracts, or other
instruments of writing which may be deemed necessary or desirable to carry out
the purposes aforesaid, and to do all things necessary and requisite thereto,
the same as an individual might or could do to carry those purposes into effect.
(12) In general, to manage, operate and carry on any other
business in connection with the foregoing, and to have and exercise all the
powers conferred by the laws of California upon corporations formed under the
act hereinafter referred to, and to do any or all of the things hereinbefore set
forth to the same extent as natural persons might or could do.
(13) The foregoing clauses shall be construed both as objects and
powers; and it is hereby expressly provided that the foregoing enumeration of
specific powers shall not be held to limit or restrict in any manner the powers
of this corporation.
ARTICLE IV
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The amount of the total authorized capital stock of the corporation is one
million dollars ($1,000,000.00) dividend into one million (1,000,000) common
shares of One Dollar ($1.00) par value each.
Said common stock to be issued by the corporation from the to the for such
consideration as shall be determined by the Board of Directors, and the holders
of any such common stock shall he entitled to One (1) vote per share upon any
question affecting the management of the corporation.
ARTICLE V
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The members of the Governing Board shall be styled Directors and the number
of such Directors shall be seven (7).
The names and post office addresses of the first Board of Directors are as
follows:
Name Residence
---- ---------
JAMES W. HUGHES 836 South Rimpau Boulevard
Los Angeles 5, California
LOUIS W. FOSTER 3311 Coolidge Avenue
Los Angeles 66, California
HOWARD P. STRASSFORTH, JR 260 South Lucerne Boulevard
Los Angeles 4, California
WALLY PARKS 5959 Hollywood Boulevard
Los Angeles 28, California
GEORGE H. WALKER 810 South Spring Street
Los Angeles 14, California
ALAN E. DAVIS 1700 West Santa Cruz Street
San Pedro, California
ELDO J. COONS 5959 Hollywood Boulevard
Los Angeles 28, California
The number of directors may be changed at any the by amendment of these
Articles, or by a by-law adopted by the shareholders, or otherwise, as may be
now or hereafter authorized by the State at California.
ARTICLE VI
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The capital stock of this corporation, after the, amount of the
subscription price or par value has been paid in, shall not be subject to
assessment to pay debts of this corporation.
ARTICLE VII
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In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
Subject to the right of shareholders to adopt, amend or repeal
by-laws, to adopt, amend or repeal the By-Laws of this Corporation, other than a
By-Law or amendment thereof changing the authorized number of Directors, to fix
the amount to be reserved as working capital over and above its capital stock
paid in, to authorize and cause to be executed mortgages and liens upon the real
and personal property of this Corporation.
If the By-laws so provide, to designate two (2) or more of its number
to constitute an executive committee, which committee shall for the time being
as provided in said resolution or in the By-laws of this Corporation, have and
exercise any or all of the powers of the Board of Directors in the management of
the business affairs of the Corporation, except the power to declare dividends
and to adopt, amend, or repeal by-laws, and to have power to authorize the seal
of this Corporation to be affixed to all papers which may require it.
ARTICLE VIII
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Pursuant to the affirmative vote of the holders of at least a majority
of the stock issued and outstanding, having voting power, given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of at least a majority of the holders of the voting stock issued
and outstanding, the Board of Directors shall have power and authority at any
meeting to sell, lease or exchange all of the property of this Corporation,
including its Good Will and its Corporate franchises, upon such terms and
conditions as its Board of Directors deem expedient for the best interests of
the Corporation.
This Corporation may, in its By-Laws, confer power upon its Directors
in addition to the foregoing, and in addition to the powers and authorities
expressly conferred upon them by the Statute.
ARTICLE IX
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This Corporation reserves the right to amend, alter, change or repeal
any provisions contained in these Articles of Incorporation (except such as are
expressly stated herein as not to be amended), and in the manner now or
hereafter prescribed by Statute, and all rights conferred upon stockholders
herein, are granted subject to this reservation.
ARTICLE X
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The principal office for the transaction of the business of the
Corporation shall be located in the City of Los Angeles, County of Los Angeles,
State of California.
IN WITNESS WHEROF, we, the undersigned, who are all of the directors
herein named, have hereunto set our hands this 15th day of May, 1956.
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JAMES W. HUGHES LOUIS W. FOSTER
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HOWARD P. STASSFORTH, JR. WALLY PARKS
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GEORGE H. WALKER ALAN K. DAVIS
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ELDO J. COONS
STATE OF CALIFORNIA )
) ss
County of Los Angeles )
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On May 15,1956, before me the undersigned, a Notary Public in and for
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said County and State, personally appeared JAMES W. HUGHES, LOUIS W.
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FOSTER, WALLY PARKS, GEORGE H. WALKER, ALAN E. DAVIS known to me, Edna
---------------------------------------------------- ----
P. Baker to be the persons whose names are subscribed to the within
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instrument, and acknowledged to me that they executed the same.
IN WITNESS WHEREOF; I have hereunto set my hand and affixed my
official seal.
/s/ Edna P. Baker
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Notary Public in and for said County and State
Name changed to: THE TWENTIETH CENTURY INSURANCE MANAGEMENT CORPORATION
CERTIFICATE OF AMENDMENT
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OF
--
ARTICLES OF INCORPORATION
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OF
--
THE TWENTIETH CENTURY INDEMNITY COMPANY
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The undersigned, JAMES W. HUGHES, LOUIS W. FOSTER, HOWARD P. STASSFORTH,
WALLY PARKS AND ALAN E. DAVIS do hereby certify:
One: That the signers hereof constitute at least two-thirds of the
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directors of THE TWENTIETH CENTURY INDEMNITY COMPANY, a California corporation;
Two: That at a meeting of the Board of Directors of said corporation,
---
duly called two-thirds of said Board present and voting, the following
resolution was unanimously adopted:
RESOLVED: that the Articles of Incorporation of this corporation be, and
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they are hereby amended, to change the name of this corporation to
"THE TWENTIETH CENTURY INSURANCE MANAGEMENT CORPORATION", amended to
read as follows:
"Article I: The name of this corporation is:
THE TWENTIETH CENTURY INSURANCE MANAGEMENT CORPORATION"
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That said meeting of the Board of Directors was held at the principal
office of said corporation in Los Angeles, California on June 14th, 1956.
Three: That said corporation has issued no shares and accepted no
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subscriptions therefore since the filing of its Articles with the Secretary of
State of California on May 17, 1956.
IN WITNESS WHEREOF, the undersigned have executed this certificate this 14th day
----
of June,
----
/s/ James W. Hughes
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JAMES W. HUGHES
/s/ Louis W. Foster
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LOUIS W. FOSTER
/s/ Howard P. Strassforth, Jr.
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HOWARD P. STASSFORTH, JR.
/s/ Walley Parks
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WALLY PARKS
/s/ Alan E. Davis
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ALAN E. DAVIS
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
JAMES W. HUGHES, LOUIS W. FOSTER, HOWARD P. STASSFORTH, JR., WALLY PARKS and
ALAN E. DAVIS being first duly sworn, each for himself, deposes and says:
That each is one of the directors of THE TWENTIETH CENTURY INSURANCE
MANAGEMENT CORPORATION, the California corporation, formerly named THE TWENTIETH
CENTURY INDEMNITY COMPANY, and mentioned in the foregoing Certificate of
Amendment; that each has read said certificate and knows the contents thereof
and that the statements therein made are true of his own knowledge; and that the
signatures purporting to be the signatures of directors thereof are the genuine
signatures of said directors.
/s/
---------------------------------
JAMES W. HUGHES
/s/
---------------------------------
LOUIS W. FOSTER
/s/
---------------------------------
HOWARD P. STASSFORTH, JR.
/s/
---------------------------------
WALLY PARKS
/s/
---------------------------------
ALAN E. DAVIS
Subscribed and sworn to
Before me this 11th day of
----
June, 1956.
- ----
/s/ (Edna P. Baker)
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Notary Public in and for the County of Los Angeles,
State of California.
Name changed to TWENTIETH CENTURY INSURANCE UNDERWRITERS, INC.
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
OF
TWENTIETH CENTURY INSURANCE MANAGEMENT CORPORATION
(New Name - TWENTIETH CENTURY UNDERWRITERS, INC.)
The undersigned, Louis W. Foster and Edna P. Baker, do hereby certify that
they are, respectively, and have been at all times herein mentioned the duly
elected and acting President and Secretary of the Twentieth Century Insurance
Management Corporation, a California corporation, and further that:
One: At a special meeting of the Board of Directors of said corporation
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duly held at its principal office for the transaction of business at 810 South
Spring Street, Los Angeles, California, at 12:30 o'clock P.M., on the 6th day of
June, 1957, at which meeting there was at all times present and acting a quorum
of the members of said Board, the following resolution was duly adopted by
unanimous vote.
RESOLVED: That the President or other proper officer be and he is hereby
authorized to petition the Secretary of State and the Insurance
Commissioner for permission to amend the Articles of Incorporation to
change the name of this corporation from "Twentieth Century Insurance
Management Corporation" to "Twentieth Century Underwriters, Inc." and if
authorized by said Secretary of State and Insurance Commissioner to effect
such change, to call a meeting of the stockholders of said corporation for
approval of the following resolution.
BE IT RESOLVED: That Article I of said Articles of Incorporation be amended
to read as follows:
"Article I: The name of this corporation is:
TWENTIETH CENTURY UNDERWRITERS, INC."
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Two: At a special meeting of the stockholders of said corporation duly
---
held at said principal office for the transaction of business at 10 o'clock
A.M., on the 15th day of July, 1957, there being present in person or by proxy
holders of 214,190 of the shares of common capital stock of said corporation,
the following resolution was duly adopted:
RESOLVED: That it is to the best interest of the Twentieth Century
Insurance Management Corporation that its name hereafter be "Twentieth Century
Underwriters, Inc."
SO, THEREFORE, BE IT RESOLVED, That Article I of the Articles of
Incorporation of said corporation be and it is hereby amended to read as
follows:
"Article I: The name of this corporation is:
TWENTIETH CENTURY UNDERWRITERS, INC."
Three: The foregoing amendment was adopted a approved at said
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stockholders'meeting by a unanimous vote.
Four: The total number of shares of said corporation entitled to vote on
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or consent to the adoption of such amendment is 273,000.
BY WITNESS THEREOF, the undersigned have executed this Certificate of
Amendment this 22nd day of July, 1957.
/s/ Louis W. Foster
---------------------------------
President
/s/ Edna P. Baker
---------------------------------
Secretary
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
LOUIS W. FOSTER AND EDNA P. BAKER, being first duly sworn, each for himself
deposes and says:
That Louis W. Foster is, and was at all times mentioned in the foregoing
Certificate of Amendment, the President of the Twentieth Century Insurance
Management Corporation, the California corporation therein mentioned, and Edna
P. Baker is, and was at all of said times, the Secretary of said Corporation;
that each has read said Certificate and knows the contents thereof and that the
statements therein made are true of his own knowledge, and that the signatures
appearing thereon purporting to be the signatures of said President and
Secretary are the genuine signatures of said President and Secretary,
respectively.
/s/ Louis W. Foster
---------------------------------
President
/s/ Edna P. Baker
---------------------------------
Secretary
Subscribed and sworn to before
me this 22 day of July, 1957.
--
Notary Public in and for said
county and state.
/s/
My Commission Expires Feb. 14, 1961
Name chg to: 20th Century Industries
Aggregate par value chg from $1,000,000 to $2,000,000
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
OF TWENTIETH CENTURY UNDERWRITERS, INC.
Louis W. Foster and William B. Campbell certify:
1. That they are the president and secretary, respectively, of
TWENTIETH CENTURY UNDERWRITERS, INC., a California corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at Los Angeles, California, on April 15, 1969, the following
resolution was adopted:
"RESOLVED: That the Articles of Incorporation of this
corporation shall be amended to read as herein set forth in
full:
ARTICLES OF INCORPORATION
OF
20TH CENTURY INDUSTRIES
We, the undersigned, do hereby voluntarily associate ourselves
for the purpose of forming a corporation under the laws of the
State of California, and we hereby declare that:
FIRST: The name of this corporation is:
20TH CENTURY INDUSTRIES
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SECOND: PRIMARY BUSINESS
The specific business in which the corporation intends to
primarily engage is that of an insurance agent.
THIRD: GENERAL PURPOSES
The general purposes for which this corporation is formed are:
(a) to act as a management company for other companies,
particularly insurance organizations;
(b) to engage in the business of acting in the capacity of
agent, insurance agent, broker, life agent, disability agent,
surplus line broker, special lines surplus line broker, or any
other type of insurance production licensee under the laws of the
State of California or any other state or territory of the United
States, the District of Columbia, or any foreign country, as such
licensing laws now provide or may hereafter be amended in the
production of insurance policies or contracts, and to do other
things as such are incidental, proper or necessary to the
operation of said business or the carrying out of any or all of
said purposes;
(c) to carry on any business whatsoever, either as a principal
or as agent or both, or as a partnership, which this corporation
may deem proper or convenient in connection with any of the
foregoing purposes or otherwise which may be calculated, directly
or indirectly to promote the interests of this corporation or to
enhance the value of its property or business; to conduct its
business in this state, in other states, in the District of
Columbia, in the territories of this United States, and in
foreign countries;
(d) to have and to exercise all the powers conferred by the laws
of the State of California upon corporations formed under the
laws pursuant to and under which this corporation is formed, as
such laws are now in effect or may at any time hereafter be
amended.
(e) to engage in investing in and holding the securities of
other corporations, particularly insurance companies and
insurance production organizations.
The foregoing statement of purposes shall be construed as a
statement of both purposes and powers, and the purposes and
powers stated in each clause shall, except where otherwise
expressed, be in nowise limited or restricted by reference to or
inference from the terms or provisions of any other clause, but
shall be regarded as independent purposes and powers;
FOURTH: PRINCIPAL OFFICE
The county in the State of California where the principal office
for the transaction of business of this corporation is to be
located is the County of Los Angeles.
FIFTH: AUTHORIZED STOCK
This corporation is authorized to issue two classes of shares to
be designated respectively "Preferred Shares" and "Common
Shares;" the total number of shares which this corporation has
authority to issue is two million (2,000,000) and the aggregate
par value of all shares that are to have par value shall be two
million dollars ($2,000,000); the number of Preferred Shares that
are to have a par value of each share of such class shall be one
dollar ($1) and the number of Common Shares that are to have a
par value shall be one million five hundred thousand (1,500,000)
and the par value of each share of such class shall be one dollar
($1).
SIXTH: PREFERENCES
The Preferred Shares may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to fix
or alter the dividend rights, dividend rate, conversion rights,
voting rights, rights and terms of redemption (including sinking
fund provisions), the redemption price or prices and the
liquidation preferences of any wholly unissued series of
Preferred Shares, and the number of shares constituting any such
series and the designation thereof or any of them; and to
increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below
the number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the
number of shares of such series.
SEVENTH: DIRECTORS
(a) The number of Directors of this corporation shall be not
less than six nor more than nine until changed by Amendment of
the Articles of Incorporation or by a By-Law duly adopted by the
Shareholders. The exact number of Directors shall be fixed from
time to time, within the limits specified herein, by a By-Law or
Amendment thereof duly adopted by the Shareholders or by the
Board of Directors.
(b) The number of Directors of this corporation shall be nine
until changed by a By-Law or Amendment thereof duly adopted by
the Shareholders or by the Board of Directors.
(c) The names and addresses of the persons who were appointed to
act as the first Directors of this corporation were:
James W. Hughes, 836 South Rimpau Boulevard, Los Angeles 5,
California; Louis W. Foster, 3311 Coolidge Avenue, Los Angeles
66, California; Howard P. Strassforth, Jr., 260 South Lucern
Boulevard, Los Angeles 4, California; Wally Parks, 5959 Hollywood
Boulevard, Los Angeles 28, California; George H. Walker, 810
South Spring Street, Los Angeles 14, California; Alan E. Davis,
1700 West Santa Cruz Street, San Pedro, California; Eldo J.
Coons, 5959 Hollywood Boulevard, Los Angeles 28, California.
EIGHTH: BY-LAWS
Subject to the right of Shareholders to adopt, amend or repeal
By-Laws, By-Laws may be adopted, amended or repleaded by the
Board of Directors, but with respect to the Amendment of the
By-Laws changing the authorized number of Directors, the Board of
Directors may only amend the By-Laws subject to the provisions of
Article Seventh hereof."
3. That the shareholders have adopted said amendment by resolution at a
meeting held at Los Angeles, California on April 15, 1969. That the wording of
the Amended Articles, as set forth in the shareholders' resolution, is the same
as that set forth in the directors' resolution in Paragraph 2 above.
4. That the number of shares which voted affirmatively for the adoption
of said resolution is 231,400, and that the total number of shares entitled to
vote on or consent to said amendment is 299,000.
/s/
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Louis W. Foster, President
/s/
----------------------------------
William B. Campbell, Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing certificate are true and correct.
Executed at Los Angeles, California on April 25, 1969
/s/
----------------------------------
Louis W. Foster, President
/s/
----------------------------------
William B. Campbell, Secretary
CAPITAL STRUCTURE CHANGED
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF 20th CENTURY INDUSTRIES
Louis W. Foster and E. Dale Hatch certify that:
1. They are the President and the Secretary, respectively, of 20th
----
Century Industries, a California corporation.
- ------------------
2. That at a meeting of the Board of Directors of said Corporation,
duly held at Los Angeles, California on October 13, 1977, the following
resolution was adopted:
"RESOLVED, that Article Fifth of the Articles of incorporation shall
be amended to read in full as follows:
'FIFTH: AUTHORIZED STOCK
'This Corporation is authorized to issue two classes of shares to be
designated respectively "Preferred Shares" and "Common Shares"; the
total number of shares which this corporation has authority to issue
is 956,795 and the aggregate par value of all shares that are to have
par value shall be $500,000; the number of Preferred Shares that are
to have a par value shall be 500,000, and the par value of each share
of such class shall be $1 and the number of Common Shares without par
value shall be 456,795. On the amendment of this Article to read as
hereinabove set forth, each issued and outstanding Common Share of a
par value of $10 is split up, dividend and converted into 15 shares
without par value.'"
3. The amendment have been approved by the Board of Directors.
4. The Corporation has only one class of shares outstanding, to wit,
common shares. The amendment effects only a stock split, as that term is defined
in Sec.188 of the California Corporations Code, and is an amendment that may be
adopted with the approval of the Board alone pursuant to Sec.902 (c) of the
California Corporations Code.
/s/
---------------------------------
Louis W. Foster, President
/s/
---------------------------------
E. Dale Hatch, Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate are true and correct of his own knowledge
and that this declaration was executed on October 26, 1977 at Los Angeles,
California.
/s/
---------------------------------
Louis W. Foster, President
/s/
---------------------------------
E. Dale Hatch, Secretary
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF 20th CENTURY INDUSTRIES
Louis W. Foster and Akira Kobayashi certify that:
1. They are the President and the Secretary, respectively, of 20th
Century Industries, a California corporation.
2. That at a meeting of the Board of Directors of said Corporation,
duly held at Los Angeles, California on February 27, 1979, the following
resolution was adopted:
"RESOLVED, that Article Fifth of the Articles of Incorporation shall
be amended to read in full as follows:
'FIFTH AUTHORIZED STOCK
'This Corporation is authorized to issue two classes of shares to
be designated respectively "Preferred Shares" and "Common Shares"; the
total number of shares which this corporation has authority to issue
is l,870,385 and the aggregate par value of all shares that are to
have par value shall be $500,000; the number of Preferred Shares that
are to have a par value shall be 500,000, and the par value of each
share of such class shall be $1 and the number of Common Shares
without par value shall be 1,370,385. On the amendment of this Article
to read as hereinabove set forth, each issued and outstanding Common
Share without par value is split up, dividend and converted into three
shares without par va1ue.'"
3. The amendment has been approved by the Board of Directors.
4. The Corporation has only one class of shares outstanding, to wit,
common shares. The amendment effects only a stock split, and an increase in
authorized shares in proportion thereto,/as that term is defined in Sec.188 of
the California Corporations Code, and is an amendment that may be adopted with
the approval at the Board alone pursuant to Sec.902 (c) of the California
Corporations Code.
/s/
---------------------------------
Louis W. Foster, President
/s/
---------------------------------
Akira Kobayashi, Secretary
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing Certificate are true and correct of his own
knowledge and that this declaration was executed on March 2, 1979, at Los
Angeles, California.
/s/
---------------------------------
Louis W. Foster, President
/s/
----------------------------------
Akira Kobayashi, Secretary
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF 20th CENTURY INDUSTRIES
Louis W. Foster and Akira Kobayashi certify that:
1. They are the president and secretary, respectively, of 20th Century
Industries, a California Corporation.
2. Article FIFTH of the articles of incorporation of this corporation is
amended to read as follows:
"FIFTH: AUTHORIZED STOCK
"This corporation is authorized to issue two classes of shares to be
designated respectively "Preferred Shares" and "Common Shares"; the total
number of shares which this corporation has authority to issue is
10,500,000 and the aggregate par value of all shares that are to have par
value shall be $500,000; the number of Preferred Shares that are to have
a par value shall be 500,000, and the par value of each share of such
class shall be $1 and the number of Common Shares without par value shall
be 10,000,000."
3. The foregoing amendment of articles of incorporation has been duly
approved by the board of directors.
4. The foregoing amendment of articles of incorporation has been duly
approved by the required vote of shareholders in accordance with Section
902 of the Corporations Code. The total number of outstanding shares of
the corporation is 1,357,200. The number of shares voting in favor of the
amendment equaled or exceeded the vote required. The percentage vote
required was more than 50%.
/s/
----------------------------------
Louis W. Foster, President
/s/
----------------------------------
Akira Kobayashi, Secretary
The undersigned declare under penalty of perjury that the matters set forth in
the foregoing certificate are true of their own knowledge. Executed at Los
Angeles, California on June 8, 1979.
/s/
----------------------------------
Louis W. Foster, President
/s/
----------------------------------
Akira Kobayashi, Secretary
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF 20th CENTURY INDUSTRIES
Louis W. Foster and Akira Kobayashi certify that:
1. They are the President and the Secretary, respectively, of 20th
Century Industries, a California corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at Woodland Hills in the City of Los Angeles, California on February
24, 1981, the following resolution was adopted:
RESOLVED, that Article FIFTH of the Articles of
Incorporation shall be amended
to read in full as follows:
"FIFTH: AUTHORIZED STOCK
"This corporation is authorized to issue two classes of
shares to be designated respectively "Preferred Shares" and
"Common Shares"; the total number of shares which this
corporation has authority to issue is 10,500,000 and the
aggregate par value of all shares that are to have par value
shall be $500,000; the number of Preferred Shares that are
to have a par value shall be 500,000, and the par value of
each share of such class shall be $1 and the number of
Common Shares without par value shall be 10,000,000. On. the
amendment of this Article to read as herein set forth, each
issued and outstanding Common Share without par value is
split up, dividend and converted into two shares without par
value."
3. The amendment has been approved by the Board of Directors.
4. The corporation has only one class of shares outstanding, to wit,
Common Shares. The amendment effects only a stock split, as that term is defined
in Sec.188 of the California Corporations Code, and is an amendment that may be
adopted with the approval of the Board alone pursuant to Sec.902 (c) of the
California Corporations Code.
/s/
----------------------------------
Louis W. Foster, President
/s/
----------------------------------
Akira Kobayashi, Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate are true and correct of his own knowledge
and that this Declaration was executed on March 6, 1981, at Los Angeles,
California.
/s/
----------------------------------
Louis W. Foster, President
/s/
----------------------------------
Akira Kobayashi, Secretary
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
20TH CENTURY INDUSTRIES
Louis W. Foster and Margaret Chang certify that:
1. They are the President and the Assistant Secretary, respectively, of
20th Century Industries, a California corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at Woodland Hills in the City of Los Angeles, California on November
23, 1982, the following resolution was adopted:
RESOLVED, that Article FIFTH of the Articles of Incorporation
shall be amended to read in full as follows:
"FIFTH: AUTHORIZED STOCK
"This corporation is authorized to issue two classes of shares
to be designated respectively "Preferred Shares" and "Common
Shares"; the total number of shares which this corporation has
authority to issue is 10,500,000 and the aggregate par value of all
shares that are to have par value shall be $500,000; the number of
Preferred Shares that are to have a par value shall be 500,000, and
the par value of each share of such class shall be $1 and the number
of Common Shares without par value shall be 10,000,000. On. the
amendment of this Article to read as herein set forth, each issued
and outstanding Common Share without par value is split up, dividend
and converted into two shares without par value."
3. The amendment has been approved by the Board of Directors.
4. The corporation has only one class of shares outstanding, to wit,
Common Shares. The amendment effects only a stock split, as that term is defined
in Sec.188 of the California Corporations Code, and is an amendment that may be
adopted with the approval of the Board alone pursuant to Sec.902 (c) of the
California Corporations Code.
/s/
------------------------------------
Louis W. Foster, President
/s/
------------------------------------
Margaret Chang, Assistant Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate are true and correct of his own knowledge
and that this Declaration was executed on January 10, 1983, at Woodland Hills,
California.
/s/
----------------------------------
Louis W. Foster
/s/
----------------------------------
Margaret Chang
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
20TH CENTURY INDUSTRIES
G. Robert Thompson and A. Kobayashi certify that:
1. They are the President and Secretary, respectively, of 20th Century
Industries, a California corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at Woodland Hills, California on November 27, 1984, the following
resolution was adopted:
RESOLVED, that Article FIFTH of the Articles of Incorporation
shall be amended to read in full as follows:
"FIFTH: AUTHORIZED STOCK
"This corporation is authorized to issue two classes of shares
to be designated respectively "Preferred Shares" and "Common
Shares"; the total number of shares which this corporation has
authority to issue is 20,500,000 and the aggregate par value of all
shares that are to have par value shall be $500,000; the number of
Preferred Shares that are to have a par value shall be 500,000, and
the par value of each share of such class shall be $1 and the number
of Common Shares without par value shall be 20,000,000. On the
amendment of this Article to read as herein set forth, each issued
and outstanding Common Share without par value is split up, dividend
and converted into two shares without par value."
3. The amendment has been approved by the Board of Directors.
4. The corporation has only one class of shares outstanding, to wit,
Common Shares. The amendment effects only a stock split (including an increase
in the authorized number of shares in proportion thereto), and is an amendment
that may he adopted with the approval of the Board alone pursuant to Sec.902 (c)
of the California Corporations Code.
/s/
----------------------------------
G. Robert Thompson, President
/s/
----------------------------------
A. Kobayashi, Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate are true and correct of his own knowledge
and that this Declaration was executed on December 10, 1984, at Woodland Hills,
California.
/s/
----------------------------------
G. Robert Thompson
/s/
----------------------------------
A. Kobayashi
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
20TH CENTURY INDUSTRIES
G. Robert Thompson and A. Kobayashi certify that:
1. They are the President and Secretary, respectively, of 20TH CENTURY
INDUSTRIES, a California corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at Woodland Hills, California on February 11, 1986, the following
resolution was adopted:
RESOLVED, that Article FIFTH of the Articles of Incorporation shall
be amended to read in full as follows:
"FIFTH: AUTHORIZED STOCK
"This corporation is authorized to issue two classes of shares
to be designated respectively "Preferred Shares" and "Common
Shares"; the total number of shares which this corporation has
authority to issue is 40,500,000 and the aggregate par value of all
shares that are to have par value shall be $500,000; the number of
Preferred Shares that are to have a par value shall be 500,000, and
the par value of each share of such class shall be $1 and the number
of Common Shares without par value shall be 40,000,000. On the
amendment of this Article to read as herein set forth, each issued
and outstanding Common Share without par value is split up, dividend
and converted into two shares without par value."
3. The amendment has been approved by the Board of Directors.
4. The corporation has only one class of shares outstanding, to wit,
Common Shares. The amendment effects only a stock split (including an increase
in the authorized number of shares in proportion thereto), and is an amendment
that may be adopted with the approval of the Board alone pursuant to Sec.902 (c)
of the California Corporations Code.
/s/
----------------------------------
G. Robert Thompson, President
/s/
----------------------------------
A. Kobayashi, Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate are true and correct of his own knowledge
and that this Declaration was executed on March 7, 1986, at Woodland Hills,
California.
/s/
----------------------------------
G. Robert Thompson
/s/
----------------------------------
A. Kobayashi
RESTATED
ARTICLES OF INCORPORATION
OF
20TH CENTURY INDUSTRIES
NEIL H. ASHLEY AND A. KOBAYASHI certify that:
1. They are president and the secretary, respectively of 20TH CENTURY
INDUSTRIES, a California corporation.
2. The articles of incorporation of this corporation are amended and
restated to read as follows:
I
The name of this corporation is 20TH CENTURY INDUSTRIES.
II
The purpose at this point is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
III
The number of directors shall be not lees than seven nor more than
thirteen. The exact number of directors shall be fixed within these specified
limits by the board of directors or by the shareholders by the adoption of a
provision in the by laws.
IV
This corporation is authorized to issue two classes of shares to be
designated respectively "Preferred Shares" and "Common Shares"; the total number
of shares which this corporation has authority to issue is 40,500,000 and the
aggregate par value of all shares that are to have a par value shall be
$500,000; the number of Preferred Shares that are to have a par value shall be
500,000, and the par value of each share of such class shall be $1 and the
number of Common Shares without par value shall be 40,000,000.
V
This corporation elects to be governed by all of the provisions of the
General Corporation Law of 1977 not otherwise applicable to it under Chapter 23
thereof.
3. The foregoing amendment and restatement of articles of incorporation
has been duly approved by the board of directors.
4. The foregoing amendment and restatement of articles of incorporation
has been duly approved by the required vote of shareholders in accordance with
Section 902 of the Corporations Code. The total number of outstanding shares of
the corporation is 25,599,716. The number of shares voting in favor of the
amendment equaled or exceeded the vote required. The percentage vote required
was more than 50%.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: June 9, 1987
/s/
----------------------------------
Neil H. Ashley, President
/s/
----------------------------------
A. Kobayashi, Secretary
RESTATED
ARTICLES OF INCORPORATION
OF
20TH CENTURY INDUSTRIES
NEIL H. ASHLEY AND A. KOBAYASHI certify that:
1. They are president and the secretary, respectively of 20TH CENTURY
INDUSTRIES, a California corporation.
2. The articles of incorporation of this corporation are amended and
restated to read as follows:
I
The name of this corporation is 20TH CENTURY INDUSTRIES.
II
The purpose at this point is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
III
The number of directors shall be not lees than seven nor more than
thirteen. The exact number of directors shall be fixed within these specified
limits by the board of directors or by the shareholders by the adoption of a
provision in the by laws.
IV
This corporation is authorized to issue two classes of shares to be
designated respectively "Preferred Shares" and "Common Shares"; the total number
of shares which this corporation has authority to issue is 40,500,000 and the
aggregate par value of all shares that are to have a par value shall be
$500,000; the number of Preferred Shares that are to have a par value shall be
500,000, and the par value of each share of such class shall be $1 and the
number of Common Shares without par value shall be 40,000,000. The preferred
shares may be issued from the to the in one or more series. The board of
directors is hereby authorized to fix or alter the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices and the
liquidation preferences of any wholly unissued series of preferred shares, and
the number of shares constituting any such series and the designation thereof,
or any of them; and to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below the number of
shares of such series then outstanding. In case the number of shares of any
series shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
V
This corporation elects to be governed by all of the provisions of the
General Corporation Law of 1977 not otherwise applicable to it under Chapter 23
thereof.
VI
The liability of the directors of the corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
VII
The corporation is authorized to provide indemnification of agents, as that
tern is defined in Section 317 of the California General Corporation Law in
excess of that expressly permitted by said Section 317, under any bylaw,
agreement, vote of share-holders or disinterested directors or otherwise, to the
fullest extent such indemnification may be authorized hereby, subject to the
limits of such excess indemnification set forth in Section 204 of the California
General Corporation Law with respect to actions for breach of duty to the
corporation and its shareholders. The corporation is further authorized to
provide insurance for agents as set forth in Section 317 of the California
Corporations Code, provided that in cases where the corporation owns all or a
portion of the shares of the company issuing the insurance policy, the company
and/or the policy must meet one of the two sets of conditions set forth in
Section 317 as amended.
VIII
Any repeal or modification of the foregoing provisions of these articles of
incorporation by the shareholders of this corporation shall not adversely affect
any right or protection of an agent of this corporation existing at the time of
such repeal or modification.
3. The foregoing amendment and restatement of articles of
incorporation has been duly approved by the board of directors.
4. The foregoing amendment and restatement of articles of incorporation
has been duly approved by the required vote of shareholders in accordance with
section 902 of the Corporations Code. The total number of outstanding shares of
the corporation is 25,671,565. The number of shares voting in favor of the
amendment equaled or exceeded the vote required. The percentage vote required
was more than 50%.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Date: May 17, 1988.
/s/
----------------------------------
Neil H. Ashley, President
/s/
----------------------------------
A. Kobayashi, Secretary
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
20TH CENTURY INDUSTRIES
James O. Curley and John R. Bollington certify that:
1. They are the President and Secretary, respectively of 20th Century
Industries, a California corporation.
2. That at a meeting of the Board of Directors of said corporation,
duly held at Woodland Hills, California on May 21, 1991, the following
resolution was adopted:
RESOLVED, that Article IV of the Articles of Incorporation
shall be amended toread in full as follows:
IV
This corporation is authorized to issue two classes of shares
to be designated respectively "Preferred Shares" and "Common
Shares"; the total number of share which this corporation has
authority to issue is 80,500,000 and the aggregate par value of all
shares that are to have a par value shall be $500,000; the number of
Preferred Shares that are to have a par value shall be 500,000 and
the par value of each share of such class shall be $1 and the number
of Common Shares without par value shall be 80,000,000. The
Preferred Shares may be issued from the to the in one or more
series. The board of directors is hereby authorized to f ix or alter
the dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices and the liquidation
preferences of any wholly unissued series of Preferred Shares, and
the number of shares constituting any such series and the
designation thereof, or any of them; and to increase or decrease the
number of shares of any series subsequent to the issue of shares of
that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so
decreased, the shares constituting such decrease shall resume the
status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
On the amendment of this Article to read as herein set forth,
each issued and outstanding Common Share without par value is split
up and converted into two shares without par value.
3. The amendment has been approved by the Board of Directors.
4. The corporation has only one class of shares outstanding, to wit,
Common Shares. The amendment effects only a stock split (including an increase
in the authorized number of shares in proportion thereto), and is an amendment
that may be adopted with the approval of the Board alone pursuant to Sec.902 (c)
of the California Corporations Code.
/s/
----------------------------------
JAMES O. CURLEY
/s/
----------------------------------
JOHN R. BOLLINGTON
Each of the undersigned declares under penalty of perjury that the
matters set forth in the foregoing Certificate are true and correct of his own
knowledge and that this Declaration was executed on May 28, 1991, at Woodland
Hills, California
/s/
----------------------------------
JAMES O. CURLEY
/s/
----------------------------------
JOHN R. BOLLINGTON
CERTIFICATE OF DETERMINATION
OF
20TH CENTURY INDUSTRIES
Neil H. Ashley and John R. Bollington certify that:
1. They are the chief executive officer resident and the secretary,
respectively, of 20TH CENTURY INDUSTRIES, a California corporation (the
"Corporation").
2. The authorized number of shares of Series A Convertible Preferred
Stock, par value $1.00 per share, is 376,126, none of which has been issued.
3. The Board of Directors of the Corporation has duly adopted the
following resolution:
WHEREAS, the articles of incorporation authorize the Preferred Stock of the
Corporation to be issued in series and authorize the Board of Directors to
determine the rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock and to fix the number
of shares and designation of any such series, now therefore it is
RESOLVED, that the Board of Directors does hereby establish a series of
Preferred Stock as follows:
Section 1. Designation and Rank. The series created and provided for hereby
is designated as the Series A Convertible Preferred Stock. Each share of the
Series A Convertible Preferred Stock shall be identical in all respects with
each other share or the Series A Convertible Preferred Stock. Shares of the
Series A Convertible Preferred Stock shall have a liquidation preference of
$1,000 per share (the "Stated Value"). The Series A Convertible Preferred Stock
shall rank prior to the Corporation's Common Stock and to all other classes, and
series of equity securities of the Corporation now or hereafter authorized,
issued or outstanding (the Common Stock and such other classes and series of
equity securities collectively may be referred to herein as the ("Junior
Stock"), other than any classes or series of equity securities of the
Corporation ranking on a parity with (the "Parity Stock") or senior to (the
"Senior Stock") the Series A Convertible Preferred Stock as to dividend rights
and rights upon liquidation, winding up or dissolution of the Corporation. The
Series A Convertible Preferred Stock shall be junior to all outstanding debt of
the Corporation. The Series A Convertible Preferred Stock shall be subject to
creation of Senior Stock, Parity Stock and Junior Stock to the extent not
prohibited by the Corporation's Articles of Incorporation, subject to the
approval of the holders of the outstanding shares of Series A Convertible
Preferred Stock to the extent required pursuant to Section 8 hereof.
Section 2. Number. The number of authorized shares of the Series A
Convertible Preferred Stock shall initially consist of 376,126 shares of which
200,000 are to be issued initially. The Corporation shall not issue any of the
authorized shares of Series A Convertible Preferred Stock after the initial
issuance of 200,000 shares other than (i) pursuant to the provisions of Section
3(b) hereof, (ii) pursuant to Section 4.3 of the Investment and Strategic
Alliance Agreement, dated as of October 17, 1994, between the Company and
American International Group, Inc. (the "Investment Agreement"), in the event
the Company elects to require the contribution of additional capital to the
Company or (iii) otherwise upon the approval of the holders of the outstanding
shares of Series A Convertible Preferred Stock pursuant to Section 8(c) hereof.
Subject to any required approval of the holders of the outstanding shares of
Series A Convertible Preferred Stock pursuant to Section 8(c) hereof, the number
of authorized shares of the Series A Convertible Preferred Stock may be
increased by the further resolution duly adopted by the Board of Directors of
the Corporation or a authorized committee thereof and the filing of an officers'
certificate pursuant to the provisions of the California General Corporation
Law. The number of authorized shares of the Series A Convertible Preferred Stock
shall not at any the be decreased below the aggregate number of such shares then
outstanding and contingently issuable pursuant to Section 3(b) hereof or Section
4.3 of the Investment Agreement.
Section 3. Dividends
(a) General. For the purposes of this Section 3, each December 16,
March 16, June 16 and September 16 (commencing March 16, 1995) on which any
Series A Convertible Preferred Stock shall be outstanding shall be deemed to be
a "Dividend Due Date." The holders of Series A Convertible Preferred Stock shall
be entitled to receive, if, when and as declared by the Board of Directors out
of funds legally available therefor, cumulative dividends at the rate of $90.00
per year on each share of Series A Convertible Preferred Stock and no more,
calculated on the basis of a year of 360 days consisting of twelve 30-day
months, payable quarterly on each Dividend Due Date, with respect to the
quarterly period ending on the day immediately preceding such Dividend Due Date
(except that if any such thee is not a Business Day, then such dividend shall be
payable on the next Business Day following such Dividend Due Date, provided
that, for the purposes of computing such dividend payment, no interest or sum in
lieu of interest shall accrue from such Dividend Due Date to the next Business
Day following such Dividend Due Date). For purposes hereof, the term Business
Day shall mean any day (except a Saturday or Sunday or any day on which banking
institutions are authorized or required to close in The City of New York, New
York or Los Angeles, California). Dividends on each share of Series A
Convertible Preferred Stock shall accrue and be cumulative from and after the
date of issuance of such share of Series A Convertible Preferred Stock. The
amount of dividends payable per share for each full dividend period shall be
computed by dividing by four, the $90.00 annual rate. The record thee for the
payment of dividends on the Series A Convertible Preferred Stock shall in no
event be more than sixty (60) days nor less than fifteen (15) days prior to a
Dividend Due Date. Such dividends shall be payable in the form determined in
accordance with subparagraph (b) below. Any such dividend payable in shares of
Series A Convertible Preferred Stock shall be payable by delivery to such
holders, at their respective addresses as they appear in the stock register, of
certificates representing the appropriate number of duly authorized, validly
issued, fully paid and nonassessable shares of Series A Convertible Preferred
Stock.
(b) Form of Dividends. Dividends payable on any Dividend Due Date
occurring prior to December 16, 1997 shall, if declared by the Board of
Directors of the Corporation or any duly authorized committee thereof and
regardless of when actually paid, be payable in shares of Series A Convertible
Preferred Stock or, at the election of the Corporation contained in a resolution
of the Board of Directors or such committee, in substitution in whole or part
for such shares of Series A Convertible Preferred Stock, in cash. The number of
shares of Series A Convertible Preferred Stock so payable on any Dividend Due
Date as a dividend per share of Series A Convertible Preferred Stock shall be
equal to the product of one share of Series A Convertible Preferred Stock
multiplied by a fraction of which the numerator is the amount of dividends that
would have been payable on such share if such dividend were being paid in cash
on such Dividend Due Date and the denominator is the Stated Value of such share.
Dividends payable on any Dividend Due Date on or after March 16, 1998 shall, if
declared by the Board of Directors of the Corporation or any duly authorized
committee thereof, be payable in cash. Notwithstanding the foregoing, no
fractional shares of Series A Convertible Preferred Stock, and no certificate or
scrip or other evidence thereof, shall be issued, and any holder of Series A
Convertible Preferred Stock who would otherwise be entitled to receive a
fraction of a share of Series A Convertible Preferred Stock in accordance with
this paragraph (b) (after taking into account all shares of Series A Convertible
Preferred Stock then held by such holder) shall be entitled to receive, in lieu
thereof, cash in an amount equal to such fraction multiplied by the Stated
Value. In no event shall the election by the Corporation to pay dividends, in
whole or in part, in cash preclude the Corporation from making a different
election with respect to all or a portion of the dividends to be paid on the
Series A Convertible Preferred Stock on any subsequent Dividend Due Date. Any
additional shares of Series A Convertible Preferred Stock issued pursuant to
this paragraph (b) shall be governed by this resolution and shall be subject in
all respects to the same terms as the shares of Series A Convertible Preferred
Stock originally issued hereunder. All dividends (whether payable in cash or in
whole or in part in shares of Series A Convertible Preferred Stock) paid
pursuant to this paragraph (b) shall be paid in equal pro rata proportions of
such cash and/or shares of Series A Convertible Preferred Stock except as
otherwise provided for the payment of cash in lieu of fractional shares.
(c) Dividend Preference. On each Dividend Due Date all dividends which
shall have accrued on each share of Series A Convertible Preferred Stock
outstanding at such Dividend Due Date shall accumulate and be deemed to become
"due." Any dividend which shall not be paid on the Dividend Due Date on which it
shall become the shall be deemed to be "past the" until such dividend shall be
paid or until the share of Series A Convertible Preferred Stock with respect to
which such dividend became the shall no longer be outstanding, whichever is the
earlier to occur. No interest, sum of money in lieu of interest, or other
property or securities shall be payable in respect of any dividend payment or
payments which are past the. Dividends paid on shares of Series A Convertible
Preferred Stock in an amount less than the total amount of such dividends at the
time accumulated and payable on such shares be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
If a dividend upon any shares of Series A Convertible Preferred Stock, or
any other outstanding preferred stock of the Corporation ranking on a parity
with the Series A Convertible Preferred Stocks as to dividends, is in arrears,
all dividends or other distributions declared upon each series of such stock
(other than dividends paid in Junior Stock) may only be declared pro rata so
that in all cases the amount of dividends or other distributions declared per
share of each such series bear to each other the same ratio that the accumulated
and unpaid dividends per share on the shares of each such series bear to each
other. Except as set forth above, if a dividend upon any shares of Series A
Convertible Preferred Stock, or any outstanding stock of the Corporation ranking
on a parity with the Series A Convertible Preferred Stock as to dividends, is in
arrears: (i) no dividends, in cash, stock or other property, may be paid or
declared and set aside for payment or any other distribution made upon any stock
of the Corporation ranking junior to the Series A Convertible Preferred Stock as
to dividends (other than dividends or distributions in Junior Stock); (t) no
stock of the Corporation ranking on a parity with the Series A Convertible
Preferred Stock as to dividends may be (A) redeemed pursuant to a sinking fund
or otherwise, except (1) by means of a redemption pursuant to which all
outstanding shares of the Series A Convertible Preferred Stock and all stock of
the Corporation ranking on a parity with the Series A Convertible Preferred
Stock as to dividends are redeemed or pursuant to which a pro rata redemption is
made from all holders of the Series A Convertible Preferred Stock and all stock
of the Corporation ranking on a parity with the Series A Convertible Preferred
Stock as to dividends (in each case, only so long as the Series A Convertible
Preferred Stock is otherwise redeemable pursuant hereto), the amount allocable
to each series of such stock being determined on the basis of the aggregate
liquidation preference of the outstanding shares of each series and the shares
of each series being redeemed only on a pro rata basis, or (2) by
conversion of such stock ranking on a parity with the Series A Convertible
Preferred Stock as to dividends into, or exchange of such stock for, Junior
Stock or (B) purchased or otherwise acquired for any consideration by the
Corporation except (1) pursuant to an acquisition made pursuant to the terms of
one or more offers to purchase all of the outstanding shares of the Series A
Convertible Preferred Stock and all stock of the Corporation ranking on a parity
with the Series A Convertible Preferred Stock as to dividends (which offers
shall describe such proposed acquisition of all such Parity Stock), which offers
shall each have been accepted by the holders of more than 50% of the shares of
each series or class of stock receiving such offer outstanding of the
commencement of the first of such purchase offers, or (2) by conversion of such
stock ranking on a parity with the Series A Convertible Preferred Stock as to
dividends into, or exchange of such stock for Junior Stock; and (iii) no stock
ranking junior to the Series A Convertible Preferred Stocks to dividends may be
redeemed, purchased, or otherwise acquired for consideration (including pursuant
to sinking fund requirements) except by conversion into or exchange for Junior
Stock.
The Corporation shall not permit any Subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation the Corporation unless the Corporation could, under this Section 3
and Section 7 below, purchase or otherwise acquire such shares at such time and
in such manner. As used herein, "Subsidiary" means a corporation more than 50%
of the outstanding voting stock of which is owned, directly or indirectly, by
the Corporation or by one or more other Subsidiaries, or by the Corporation and
one or more other subsidiaries.
Section 4. Redemption
(a) Optional Redemption. The Corporation, at its option, may redeem the
shares of the Series A Convertible Preferred Stock, as a whole or from time to
time in part, on any Business Day set by the Board of Directors (the "Redemption
Date") at a redemption price per share equal to $3,000.00 plus an amount equal
to accrued and unpaid dividends thereon (whether or not earned or declared) to
the Redemption Date (subject to the right of the holder of record on the record
date for the payment of a dividend to receive the dividend the on the
corresponding Dividend Due Date, or the next Business Day thereafter, as the
case may be); provided, however, that, on and after December 16, 1999, in the
event that the closing price (as defined in Section 6 (e)(viii) of the Common
Stock for 30 consecutive Trading Days ending not more than five days prior to
the date of the notice of redemption is at least 180% of the Conversion Price
then in effect, the Corporation may so redeem such shares at the following
redemption price per share if redeemed during the twelve-month period beginning
on December 16 in the year indicated below:
Year Redemption
---- Price
-----
1999 . . . . . . . . . . . $1,050
2000 . . . . . . . . . . . 1,040
2001 . . . . . . . . . . . 1,030
2002 . . . . . . . . . . . 1,020
2003 . . . . . . . . . . . 1,010
and if redeemed at any time on or after December 16, 2004 at $1,000 per share,
plus, in each case, an amount equal to all accrued and unpaid dividends thereon
(whether or not earned or declared) to the Redemption Date (subject to the right
of the holder of record on the record date for the payment of a dividend to
receive the dividend the on the corresponding Dividend Due Date, or the next
Business Day thereafter, as the case my be). The applicable amount payable upon
redemption as provided in the immediately preceding sentence is hereinafter
referred to as the "Redemption Price."
(b) Notice, etc.
(i) Notice of every redemption of shares of Series A
Convertible Preferred Stock pursuant to this Section 4 sha11 be mailed by first
class mail, postage prepaid, addressed to the holders of record of the shares to
be redeemed at their respective last addresses as they shall appear on the stock
register of the Corporation. Such mailing shall be a least 30 days and not more
than 60 days prior to the Redemption Date. Each such notice of redemption shall
specify the Redemption Date, the Redemption Price, the place or places of
payment, that payment will be made upon the later of the Redemption Date or
presentation and surrender of the shares of Series A Convertible Preferred
Stock, that on and after the Redemption Date, dividends will cease to accumulate
on such shares and that the right of holders to convert such shares, as provided
in Section 6 hereof, shall terminate at the close of business on the Business
Day immediately preceding the Redemption Date.
(ii) In case of redemption of a part only of the shares of
Series A Convertible Preferred Stock at the time outstanding, the redemption
shall be pro rata. The Board of Directors shall have full power and authority,
subject to the provisions herein contained, to prescribe the terms and
conditions upon which shares of the Series A Convertible Preferred Stock shall
be redeemed from time to time.
(iii) If such notice of redemption shall have been duly given
and if on or before the Redemption Date specified therein the funds necessary
for such redemption shall have been deposited by the Corporation with the bank
or trust company hereinafter referred to in trust for the pro rata benefit of
the holders of the shares called for redemption, then, notwithstanding that any
certificate for shares so called for redemption shall not have been surrendered
for cancellation, from and after the Redemption Date, all shares so called for
redemption shall no longer be deemed to be outstanding, dividends shall cease to
accrue thereon and all rights with respect to such shares Shall forthwith cease
and terminate, except only the right of the holders thereof to receive from such
bank or trust company at any time on and after the Redemption Date the funds so
deposited, without interest. The aforesaid bank or trust company shall be
organized and in good standing under the laws of the United States of America or
of any State, shall have capital, surplus and undivided profits aggregating at
least $500,000,000 according to its last published of financial condition, and
shall be identified in the notice of redemption. Any interest accrued on such
funds shall be paid to the Corporation from time to time. Any funds so set aside
or deposited, as the case may be, and unclaimed at the and of three years from
such Redemption Date shall, to the extent permitted by law, be released or
repaid to the Corporation, after which repayment the holders of the shares so
called for redemption shall look only to the Corporation for payment thereof.
(c) Status of Redeemed Shares. Shares of the Series A Convertible
Preferred Stock which have been redeemed shall, after such redemption, have the
status of authorized but unissued shares of Preferred Stock of the Corporation,
without designation as to series, until such shares are once more designated as
part of a particular series by or on behalf of the Board of Directors.
Section 5. No Sinking Fund. The shares of Series A Convertible Preferred
Stock, shall not be subject to mandatory redemption or the operation of any
purchase, retirement, or sinking fund.
Section 6. Conversion Privilege.
(a) Conversion Right. The holder of any share of Series A Convertible
Preferred Stock shall have the right, at such holder's option (but if such share
is called for redemption, then in respect of such share only to and including,
but not after, the close of business on the Business Day immediately preceding
the applicable Redemption Date, provided that no default by the Corporation in
the payment of the applicable Redemption Price shall have occurred and be
continuing on the Redemption Date) to convert such share on any Business Day
into that number of fully paid and non-assessable Common Shares, without par
value ("Common Stock"), of the Corporation (calculated as to each conversion to
the nearest 1/100th of a share of Common Stock) obtained by dividing $1,000.00
by the Conversion Price then in effect. The "Conversion Price" shall initially
be equal to $11.33 and shall be subject to adjustment from time to time as set
forth below.
(b) Conversion Procedures. Any holder of shares of Series A Convertible
Preferred Stock desiring to convert such Shares into Common Stock shall
surrender the certificates for such shares of Series A Convertible Preferred
Stock at the office of the Corporation or any transfer agent for the Series A
Convertible Preferred Stock (the "Transfer Agent"), which certificate or
certificates, if the Corporation shall so require, shall be duly endorsed to the
Corporation or in blank, or accompanied by proper instruments of transfer to the
Corporation or in blank, accompanied by irrevocable written notice to the
Corporation that the holder elects so to convert such shares of Series A
Convertible Preferred Stock and specifying the name or names in which a
certificate or certificates for Common Stock are to be issued.
The Corporation covenants that it will, as soon as practicable after
such deposit of certificates for Series A Convertible Preferred Stock
accompanied by the written notice of conversion and compliance with any other
conditions herein contained, deliver to the person for whose account such shares
of Series A Convertible Preferred Stock were so surrendered, or to his nominee
or nominees. certificates for the number of full shares of Common Stock to which
he shall be entitled as aforesaid, together with a cash adjustment of any
fraction of a share as hereinafter provided. Subject to the following provisions
of this paragraph, such conversion shall be deemed to have been made as of the
date of such surrender of the shares of Series A Convertible Preferred Stock to
be converted, and the person or persons entitled to receive the Common Stock
deliverable upon conversion of such Series A Convertible Preferred Stock shall
be treated for all purposes as the record holder or holders of such Common Stock
on such date; provided, however, that the Corporation shall not be required to
convert any shares of Series A Convertible Preferred Stock while the stock
transfer books of the Corporation are closed for any purpose, but the surrender
of Series A Convertible Preferred Stock for conversion during any period while
such books are so closed shall become effective for conversion immediately upon
the reopening of such books as if he surrender had been made on the date of such
reopening, and the conversion shall be at the Conversion Price in effect on such
date.
(c) Certain Adjustments for Dividends. In the case of any share of
Series A Convertible Preferred Stock which is surrendered for conversion after
any record date established by the Board with respect to the payment of a
dividend on the Series A Convertible Preferred Stock and on or prior to the
opening of business on the next succeeding Dividend Due Date (or, if such
Dividend Due Date is not a Business Day, before the close of business at the
next Business Day following such Dividend Due Date), the dividend the on such
date shall be payable on such date to the holder of record of such share as of
such preceding record date notwithstanding such conversion. Shares of Series A
Convertible Preferred Stock surrendered for conversion during the period from
the close of business on any record date established by the Board with respect
to the payment of a dividend on the Series A Convertible Preferred Stock
immediately preceding any Dividend Due Date to the opening of business on such
Dividend Due Date (or, if such Dividend Due Date is not a Business Day, before
the opening of business on the next Business Day following such Dividend Due
Date) shall, except in the case of shares of Series A Convertible Preferred
Stock which have been called for redemption on a Redemption Date within such
period, be accompanied by payment in New York Clearing House funds or other
funds acceptable to the Corporation in an amount equal to the dividend payable
on such Dividend Due Date on the shares of Series A Convertible Preferred Stock
being surrendered for conversion. The dividend with respect to a share of Series
A Convertible Preferred Stock called for redemption on a Redemption Date during
the period from the close of business on any record date established by the
Board with respect to the payment of a dividend on the Series A Convertible
Preferred Stock next preceding any Dividend Due Date to the opening of business
on such Dividend Due Date (or, if such Dividend The Data is not a Business Day,
before the opening of business as the next Business Day following such Dividend
Due Date) shall be payable on such Dividend Due Date (or, if such Dividend Due
Date is not a Business Day, on the next Business Day following such Dividend Due
Date) to the holder of record of such share on such record date notwithstanding
the conversion of such share of Series A Convertible Preferred Stock after such
record date and prior to the opening of business on such Dividend Due Date (or,
if such Dividend Due Date is not a Business Day, before the opening of business
on the next Business Day following such Dividend Due Date), and the holder
converting such share of Series A Convertible Preferred Stock need not include a
payment of such dividend amount upon surrender of such share of Series A
Convertible Preferred Stock for conversion. Except as provided in this
paragraph, no payment or adjustment shall be made upon any conversion on account
of any dividends accrued on shares of Series A Convertible Preferred Stock
surrendered for conversion or on account of any dividends on the Common Stock
issued upon conversion.
(d) No Fractional Shares. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon conversion of Series A
Convertible Preferred Stock. If more than one certificate representing shares of
Series A Convertible Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares of
Series A Convertible Preferred Stock so surrendered. Instead of any fractional
share of Common Stock which would otherwise be issuable upon conversion of any
shares of Series A Convertible Preferred Stock, the Corporation will pay a cash
adjustment in respect of such fractional interest in an amount equal to the same
fraction of the Current Market Price per share of the Common Stock.
(e) Anti-Dilution Adjustments. The Conversion Price shall be adjusted
from time to time as follows:
(i) In case the Corporation shell pay or make a dividend in
shares of Common Stock on any class of capital stock of the
Corporation, the Conversion Price in effect immediately prior to the
opening of business at the next Business Day following the date fixed
for determination of shareholders entitled to receive such dividend
shall be reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend, such
reduction to become effective immediately prior to the opening of
business on the next Business Day following the date fixed for such
determination. For the purposes of this clause (i), the number of
shares of Common Stock at any time outstanding shall include shares
issuable in respect of scrip certificates issued in lieu of fractions
of shares of Common Stock.
(ii) In case the Corporation shall hereafter issue rights,
options or warrants to all holders of its Common Stock entitling them
to subscribe for or purchase shares of Common Stock (such rights,
options or warrants not being available on an equivalent basis to
holders of the Series A Convertible Preferred Stock upon conversion)
at a price per share less than the Current Market Price of the Common
Stock on the date fixed for the determination of shareholders entitled
to receive such rights, options or warrants (other than pursuant to a
dividend reinvestment plan), (A) the Conversion Price in effect
immediately prior to the opening of business on the next Business Day
following the date fixed for such determination shall be reduced by
multiplying the Conversion Price in effect immediately prior to the
close of business on the date fixed for the determination of holders
of Common Stock entitled to receive such rights, options or warrants
by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which
the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at
such Current Market Price and the denominator shall be the number of
shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such reduction to
become effective immediately prior to the opening of business on the
next Business Day following the date fixed for such determinations.
For the purposes of this clause (ii), the number of shares of Common
Stock at any time outstanding shall include shares issuable in respect
of scrip certificates issued in lieu of fractions or shares of Common
Stock; and (B) if any such rights, options or warrants expire or
terminate without having been exercised or are exercised for a
consideration different from that utilized in the computation of any
adjustment or adjustment on account of such rights, options or
warrants, the Conversion Price with respect to any Series A Preferred
Shares not previously converted into Common Stock shall be readjusted
such that the Conversion Price would be the same as would have
resulted had such adjustment been made without regard to the issuance
of such expired or terminated rights, options or warrants or based
upon the actual consideration received upon exercise thereof, as the
case may be, which readjustment shall become effective upon such
expiration, termination or exercise, as applicable; provided however,
that all readjustments in the Conversion Price based upon any
expiration, termination or exercise for a different consideration of
any such right, option or warrant, in the aggregate, shall not cause
the Conversion Price to exceed the Conversion Price immediately prior
to the time such rights, options or warrants were initially issued
(without regard to any other adjustment of such number under this
Section 6(e) that may have been made since the date of the issuance of
such rights, options or warrants).
(iii) In case the outstanding shares of Common Stock
shall be subdivided into a greater number of shares of Common Stock,
the Con-version Price in effect immediately prior to the opening of
business on the next Business Day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and,
conversely, in case outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the
Conversion Price in effect immediately prior to the opening of
business on the next Business Day following the day upon which such
combination becomes effective shall be proportionately increased.
(iv) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its Common Stock evidences of
its indebtedness or assets (including securities, but excluding any
rights, options or warrants referred to in clause (ii) of this Section
6(e) any dividend or distribution paid exclusively in cash and any
dividend referred to in clause (i) of this Section 6(e)), the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of shareholders entitled to receive such distribution by
a fraction of which (A) the numerator shall be the Current Market
Price at the close of business on the date fixed for such
determination less the then fair market value of the portion of the
assets or evidences of indebtedness so distributed applicable to one
share of Common Stock (the amount calculated pursuant to this clause
(A) bug hereinafter referred to as the "Adjusted Market Price") and
(B) the denominator shall be such Current Market Price, such
adjustment to become effective immediately prior to the opening of
business on the next Business Day following the date fixed for the
determination of shareholders entitled to receive such distribution.
(v) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed and adjusted for as part of a distribution
referred to in clause (iv) of this Section 6(e) in an aggregate amount
that, combined together with (1) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this
clause (v) or clause (vi) of this Section 6(e) has been made and (II)
the aggregate of any cash plus the fair market value as of the last
time tender could have been made pursuant to such tender offer, as it
may have been amended (such time, the "Expiration Time") of
consideration payable in respect of any tender offer by the
Corporation or any of its Subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment
pursuant to this clause (v) or clause (vi) of this Section 6(e) has
been made, exceeds 10% of the product of the Current Market Price per
Share of the Common Stock on the date for the determination of holders
of shares of Common Stock entitled to receive such distribution times
the number of shares of Common Stock outstanding on such date, then,
and in each case, immediately, after the close of business on such
date for determination, the Conversion Price shall be reduced so that
the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business
on the date fixed for determination of the shareholders entitled to
receive such distribution by a fraction (i) the numerator of which
shall be equal to the Current Market Price per share of the Common
Stock on the date fixed for such determination less an amount equal to
the 'quotient of (x) the excess of such combined amount over such 10%
and (y) the number of shares of Common Stock outstanding on such date
for determination and (ii) the denominator of which shall be equal to
the Current Market Price per share of the Common Stock as of such date
for determination.
(vi) In case a tender offer (the "Tender Offer") made
by the Corporation or any Subsidiary for all or any portion of the
Common Stock shall expire and the Tender Offer (as amended upon the
expiration thereof) shall require the payment to shareholders based on
the acceptance (up to any maximum specified in the terms of the tender
offer) of Purchased Shares (as defined below) of an aggregate of the
cash plus other consideration having a fair market value (as
determined by the Board of Directors) as of the Expiration Time of
such tender offer that combined together with (1) the aggregate of the
cash plus the fair market value (as determined by the Board of
Directors) of consideration payable in respect of any other tender
offer (determined as of the Expiration Time of such other tender
offer) by the Corporation or any Subsidiary for all or any portion of
the Commas Stock expiring within the 12 months preceding the expiation
of the Tender Offer and in respect of which no adjustment pursuant to
clause (v) of this Section 6(e) or this clause (vi) has been made and
(II) the aggregate amount of any distributions to all holders of the
Corporation's Common Stock made exclusively in cash within 12 months
preceding the expiration of the Tender Offer and in respect of which
no adjustment pursuant to clause (v) of this Section 6(e) or this
clause (vi) has been made, exceeds 10% of the product of the Current
Market Price per share of the Common Stock as of the Expiration Time
of the Tender Offer times the number of shares of Common Stock
outstanding (including any tendered shares) at the Expiration Time of
the Tender Offer, then, and in each such case, immediately prior to
the opening of business on the day after the date of the Expiration
Time of the Tender Offer, the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price immediately prior to close of business on the date of
the Expiration Time of the Tender Offer by a fraction (i) the
numerator of which shall be equal to (A) the product of (I) the
Current Market Price per share of the Common Stock as of the
Expiration Time of the Tender Offer and (II) the number of shares of
Common Stock outstanding (including any tendered shares) at the
Expiration Time of the Tender Offer less (B) the amount of cash plus
the fair market value (determined as aforesaid) of the aggregate
consideration payable to shareholders based on the acceptance (up to
any maximum specified in the terms of the Tender Offer) of Purchased
Shares as defined below, and (ii) the denominator of which shall be
equal to the product of (A) the Current Market Price per share of the
Common Stock as of the Expiration Time of the Tender Offer ( B) the
number of shares of Common Stock outstanding (including any tendered
shares) as of the Expiration Time of the Tender Offer less the number
of all shares validly tendered and not withdrawn as of the Expiration
Time of the Tender Offer, and accepted for purchase up to any maximum
(the shares deemed so accepted up to any such maximum, being referred
to as the "Purchased Shares").
(vii) The reclassification of Common Stock into securities
other than Common Stock shall be deemed to involve (a) a distribution
of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed
to be "the date fixed for the determination of shareholders entitled
to receive such distribution" and the "date fixed for such
determination" within the meaning of clause (iv) of this Section
6(e)), and (b) a subdivision or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall bet deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may in, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
clause (iii) of this Section 6(e) above).
(viii) For the purpose of any computation under clause (ii),
(iv), (v), (vi) or (vii) of this Section 6(e), the current market
price per share of Common Stock (the "Current Market Price") on any
day shall be deemed to be the average of the daily closing prices per
share for the ten consecutive Trading Days ending on the earlier of
the day in question and the day before the Ex Date (as defined below)
with respect to the issuance, payment or distribution or the date of
the expiration of the tender offer requiring such computation. For
this purpose, the term 'Ex Date", when used with respect to any
issuance or distribution, shall mean the first date on which the
Common Stock trades regular way on the applicable securities exchange
or in the applicable securities market without the right to receive
such issuance or distribution. "Trading Day" means each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which
the Common Stock is not traded on the applicable securities exchange
or on the applicable securities market. The closing price ("closing
price") for each day shall be reported last sale price regular way or,
in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange or, if the Common Stock is not listed
or admitted on such Exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or
quoted on the Nasdaq National Market, the average of the closing bid
and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm reasonably selected from time to
time by the Board for that purpose.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
Section 6(f)) would require an increase or decrease of at least one percent in
such Conversion Price; provided, however, that any adjustments which by reason
of this Section 6(f) is not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section shall be made to the nearest cent or to the nearest 1/100 of a share of
Common Stock, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided:
(i) the Corporation shall compute the adjusted Conversion
Price in accordance with Section 6(e) and shall prepare a certificate
signed by the treasurer of the Corporation setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall forthwith be
filed with any Transfer Agent; and
(ii) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be required, and as soon as practicable after it is
required, such notice shall be mailed by the Corporation to all
holders of Series A Convertible Preferred Stock at their last
addresses as their last addresses as they shall appear in the security
register.
(h) In case:
(i) the Corporation shall declare a dividend or other
distribution on its Common Stock (other than a dividend payable
exclusively in cash that would not cause an adjustment to the
Conversion Price to take place pursuant to Section 6(e) above); or
(ii) the Corporation or any Subsidiary shall make a.
tender offer for the Common Stock (other than a tender offer that
would not cause an adjustment to the Conversion Price pursuant to
clause (v) or (vi) of Section 6(e)); or
(iii) the Corporation shall authorize the granting to all
holders of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any class; or
(iv) of any reclassification of the Common Stock of the
Corporation (other than a subdivision or combination of its
outstanding shares of Common Stock), or of any consolidation, merger
or share exchange to which the Corporation is a party and for which
approval of any shareholders of the Corporation is required, or of the
sale or transfer of all or substantially all of the assets of the
Corporation; or
(v) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed with any Transfer Agent, and shall
cause to mailed to all holders of the Series A Convertible Preferred Stock at
their last addresses as they shall appear in the security register, at least 20
days (or 10 days in any case specified in clause (i) or (ii) above) prior to the
effective date hereinafter specified, a notice stating (x) the date on which a
record has been taken for the purpose of such dividend, distribution or grant of
rights, options or warrants, or, if a record is not to be taken, the date as of
which the identity of the holders of Common Stock of record entitled to such
dividend, distribution, rights, options or warrants was determined, or (y) the
date an which such reclassification, consolidation, merger, share exchange,
sale, transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding up. Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(i) through (v) of this Section 6(h).
(i) Nonassessability of Common Stock. The Corporation
covenants that all shares of Common Stock which may be issued upon
conversion of Series A Convertible Preferred Stock will upon issue be
fully paid and nonassessable.
(j) Reservation of Shares; Transfer Tax; Etc. The Corporation
shall at all times reserve and keep available, out of its authorized
and unissued stock, solely for the purpose of effecting the conversion
of the Series A Convertible Preferred Stock, such number of shares of
its Common Stock, free from preemptive rights, as shall from time to
time be sufficient to effect the conversion of all shares of Series A
Convertible Preferred Stock from time to time outstanding. The
Corporation shall from time to time, in accordance with the laws of
the State of California, increase the authorized number of shares of
Common Stock if at any time the number of shares of Common Stock not
outstanding shall not be sufficient to permit the conversion of all
the then outstanding shares of Series A Convertible Preferred Stock.
If any shares of Common Stock required to be reserved for
purposes of conversion of the Series A Convertible Preferred Stock
hereunder require registration with or approval of any governmental
authority under any Federal or State law before such shares may be
issued upon conversion, the Corporation covenants that it will in good
faith and as expeditiously as possible endeavor to cause such shares
to be duly registered or approved, as the case may be. If the Common
Stock is listed on the New York Stock Exchange or any other national
securities exchange, the Corporation covenants that it will, if
permitted by the rules of such exchange, list and keep listed on such
exchange, upon official notice of issuance, all shares of Common Stock
issuable upon conversion of the Series A Convertible Preferred Stock
The Corporation covenants that it will pay any and all issue or
other taxes that may be payable in respect of any issue or delivery of
shares of Common Stock on conversion of the Series A Convertible
Preferred Stock .The Corporation shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved
in the issue or delivery of Common. Stock (or other securities or
assets) in a name other than that in which the shares of Series A
Convertible Preferred Stock so converted were registered, and no such
issue or delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of such tax or has
established, to the satisfaction of the Corporation, that such tax has
been paid.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value of the Common Stock, if
any, the Corporation covenants that it will take any corporate action
which may, in the opinion of its counsel, be necessary hi order that
the Corporation any validly and legally issue fully paid and
non-assessable shares of Common Stock as the Conversion Price as so
adjusted.
(k) Other Changes in Conversion Price. The Corporation may, but
shall not be obligated to, make such decreases in the Conversion
Price, in addition of those required or allowed by this Section 6, as
shall be determined by it, as evidenced by a resolution of the Board,
to be advisable in order to avoid or diminish any income tax to
holders of Common Stock resulting from any dividend or distribution of
any capital stock of the Corporation or issuance of rights, options or
warrants to purchase or subscribe for any such stock or from any event
treated as such for income tax purposes.
Section 7. Liquidation Rights.
(a) Liquidation Preference. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of outstanding shares of the Series A
Convertible Preferred Stock shall be entitled, before any payment or
distribution shall be made on Junior Stock, to be paid in full an
amount equal to the Stated Value per share, plus an amount equal to
all accrued but unpaid dividends (whether or not earned or declared),
and no more. After payment of the full amount of such liquidation
distribution, the holders of Series A Convertible Preferred Stock
shall not be entitled to any further participation in any distribution
of assets of the Corporation.
(b) Insufficient Assets
(i) If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders
of the shares of the series A Convertible Preferred Stock and any
other stock of the Corporation ranking, as to liquidation,
dissolution or winding up, on a parity with the Series A
Convertible Preferred Stock (collectively, "Liquidation Parity
Stock"), shall be insufficient to pay in full the preferential
amount set forth in the subparagraph (a) above and liquidating
payments on all Liquidation Parity Stock, then assets of the
Corporation remaining after the distribution to holders of any
Senior Stock then outstanding of the full amounts to which they
may be entitled, or the proceeds thereof, shall be distributed
among the holders of the Series A Convertible Preferred Stock and
all such Liquidation Parity Stock ratably in accordance with the
respective amount which would be payable on such shares of Series
A Convertible Preferred Stock and any such Liquidation Parity
Stock if all amounts payable thereon were paid in full (which, in
the case of such other stock, may include accumulated dividends).
(ii) In the event of any such liquidation, dissolution or
winding up of due Corporation, whether voluntary or involuntary,
unless and until payment in full is made to the holders of all
outstanding shares of the Series A Convertible Preferred Stock of
the liquidation distribution to which they are entitled pursuant
to subparagraph (a) above, no dividend or other distribution
shall be made to the holders of any Junior Stock and no purchase,
redemption or other acquisition for any consideration by the
Corporation shall be made in respect of any Junior Stock, other
than any such dividend or distribution consisting solely of, or
purchase, redemption or acquisition for consideration solely of,
shares of Junior Stock.
(c) Definition. Neither the consolidation nor the merger of
the Corporation into or with another corporation or corporations shall be
deemed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Section 7.
Section 8. Voting Rights.
(a) No Vote Except as Provided. Except as otherwise expressly
provided herein or repaired by law, no holder of shares of Series A
Convertible Preferred Stock shall have or posses any right to notice of
shareholders' meetings or any vote (whether at such a meeting or in writing
without a meeting) with respect to any shares of Series A Convertible
Preferred Stock held by such holder on any matter.
(b) Election of Directors. At any meeting of shareholders for the
election of directors of the Corporation (or, in lieu thereof, by the
unanimous written consent of the outstanding shares of Series A Convertible
Preferred Stock), the holders of Series A Convertible Preferred Stock shall
have the right, voting or consenting separately as a series, to the
exclusion of the holders of the Corporation's Common Stock or any other
series of Preferred Stock or any other class or series of capital stock of
the Corporation, to elect the Applicable Number (as hereinafter defined) of
directors of the Corporation (each a "Series A Director). Any Series A
Director may be removed by, and (except as provided elsewhere in the
paragraph (b)) shall not be removed without cause (or, except to the extent
required by law, with cause) except by, the vote or consent of the holders
of record of a majority of the outstanding shares of Series A Convertible
Preferred Stock, voting or consenting separately as a series, at a meeting
of the shareholders or of the holders of the shares of Series A Convertible
Preferred Stock called for that purpose or pursuant to a written consent of
the Series A Convertible Stock, as the case may be. Any vacancy in the
office of a Series A Director may be filled only by the vote or consent of
the holders of the outstanding shares of Series A Convertible Preferred
Stock, voting or consenting separately as a series, at a meeting of the
shareholders or of the holders of the shares of Series A Convertible
Preferred Stock called for that purpose or pursuant to a written consent of
the Series A Convertible Preferred Stock, as the case may be or, in the
case of a vacancy created by removal of a Series A Director, as provided
above, at the same meeting at which such removal shall be voted or by
written consent of a majority of the outstanding shares of Series A
Convertible Preferred Stock. In no instance shall the Board of Directors of
the Corporation have the power to fill any vacancy in the office of a
Series A Director. Whenever holders of the Series A Convertible Preferred
Stock shall cease to be entitled to elect the then established Applicable
Number of directors, then and in any such case such Series A Director or
Directors as shall be designated by majority vote of the holders of the
Series A Convertible Preferred Stock shall, without any further action,
immediately cease to be a director of the Corporation. As used herein, the
Applicable Number at any time shall mean the smallest whole number that is
greater than or equal to the product of (i) 2/11 and (ii) the total number
of directors at such time (including the directors that the holders of
Series A Preferred Stock are entitled to elect at such time);provided,
however, the Applicable Number shall be reduced by the minimum number of
directorships in order that the sum of (i) the Applicable Number and (ii)
the minimum whole number of directors which can be elected (through the
application of cumulative voting) by shares of Common Stock (x) obtained
upon conversion of the Series A Convertible Preferred Stock or exercise of
the Series A Warrants and (y) held of record by the holder (or subsidiaries
thereof) not equal or exceed a majority of the total number of directors of
the Company; and, provided further, however, until the date of the
Corporation's 1995 annual meeting of shareholders (currently scheduled for
May 23, 1995), the board of directors of the Corporation shall consist of
twelve members, of which the Applicable Number elected by the holders of
Series A Convertible Preferred Stock shall be two
directors (it being understood that, on said annual meeting date, the size
of the board of directors shall be reduced to eleven members again, with
the removal or non-election of one non-Series A Director).
(c) Certain Actions. So long as any shares of the Series A
Convertible Preferred Stock shall remain outstanding, the consent the
holders of a majority of the shares of the Series A Convertible Preferred
Stock at the time outstanding, acting as a separate series, given in person
or by proxy, either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or validating:
(i) The authorization, creation, issuance or sale of any
shares of any class or series of capital stock of the Corporation
which shall rank senior to the Common Stock of the Corporation as
to dividend rights or rights upon liquidation, winding up or
dissolution of the Corporation, whether such capital stock shall
constitute Senior Stock. Parity Stock (including Series A
Convertible Preferred Stock) or Junior Stock, or otherwise, or
any security convertible thereinto or exchangeable therefor or
representing the right to acquire any of the forgoing; provided,
however, that no such consent is or shall be necessary for the
authorization, creation, issuance or sale of (A) additional
shares of Series A Convertible Stock issuable, at the election of
the Company, pursuant to Section 4.3 of the Investment Agreement
or (B) additional shares of Series A Convertible Preferred Stock
payable as a dividend in accordance with Section 3(b) above
(including, without limitation, such shares payable as a dividend
upon additional shares issued as contemplated by clause (A) of
this paragraph (i));
(ii) Any amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation or of the By-laws of
the Corporation (including any adoption of a Certificate of
Determination of any series of stock of the Corporation);
(iii) The merger or consolidation of the Corporation with
or into, or the sale or conveyance of all or substantially all of
the assets of the Corporation to, any person or entity (provided,
however, that on and after December 16, 1997, in lieu of the
right to vote on or consent with respect to the actions specified
in this paragraph (iii) as a separate series, the Series A
Convertible Preferred Stock shall have the right to vote or
consent together with the Common Stock, as a single class, and in
any such vote or consent a holder of shares of Series A
Convertible Preferred Stock shall be entitled to a number of
votes to equal the number of shares of Common Stock (rounded down
to the nearest share) into which such shares of Series A
Convertible Preferred Stock are convertible on the date the vote
is taken or consent is given); or
(iv) Any dividend or other distribution to all holders
of its Common Stock of cash or property or any purchase or
acquisition by the Corporation or any of its subsidiaries of its
Common Stock in an aggregate amount that, combined together with
(A) the aggregate amount of any other such distributions to all
holders of its Common Stock within the 12 months preceding the
date of payment of such distribution and in respect of which no
vote was required pursuant to this paragraph (iv) and (B) the
aggregate of any cash plus the fair market value of consideration
payable in respect of any purchase or acquisition by the
Corporation or any of its subsidiaries for all or any portion of
the Common Stock concluded within thc 12 months preceding the
date of payment of such distribution and in respect of which no
vote was required pursuant to this paragraph (iv). exceeds 15% of
the product of the Current Market Price per share of the Common
Stock of the Corporation on the date for the determination of
holders of shares of Common Stock entitled to receive such
distribution times the number of shares of Common Stock
outstanding on such date;
provided, however, that no such consent of the holders of the Series A
Convertible Preferred Stock shall be requited if, at or prior to the time when
any such action of the type referred to in subparagraphs (i), (ii), (iii) and
(iv) of this Section 8is to take effect provision is made for the redemption of
all shares of Series A Convertible Preferred Stock at the time outstanding and
deposit of the aggregate Redemption Price is made pursuant to Section 4(b)
(iii).
Section 9. Preemptive Rights. In the event the Company intends to issue and
sell shares of Common Stock in a public offering as contemplated by Section Suds
8.10 of the Investment Agreement, the Company shall first provide the holders of
Series A Convertible Preferred Stock 60 day's prior written notice of such
intent. At the holder's election, each holder of Series A Convertible Preferred
Stock has the preemptive right to participate in such Common Stock offering up
to the holder's fully converted/exercised interest in the Common Stock of the
Company at the per share price received by the Company (i.e., without
underwriter's discount) in such public offering. For purposes of the foregoing,
the holder's fully converted/exercised interest in the Common Stock shall equal
the quotient of (I) the number of shares of Common Stock beneficially owned or
obtainable by the holder and its affiliates by virtue of ownership of the Series
A Preferred Shares (including any additional shares actually issued by virtue of
the provision permitting payment of dividends in kind on the Series A Preferred
Shares) and the Series A Warrants and conversion or exercise thereof divided by
(II) the sum of(A) the total number of shares of Common Stock of the Company
then outstanding plus (B) the number of shares referred to in (1). This
preemptive right shall terminate when this security is not held by American
International Group, Inc. or subsidiaries or affiliates thereof.
Section 10. Exclusion of Other Rights. Except as may otherwise be required
by law, the shares of Series A Convertible Preferred Stock shall not have any
preferences or relative, participating, optional or other special rights, other
than those specifically set forth in this resolution (as such resolution may be
amended from time to time) and in the Articles of Incorporation of the
Corporation, as amended. Without limitation of the foregoing, the shares of
Series A Convertible Preferred Stock shall have no preemptive or subscription
rights except as provided in Section 9.
Section 11. Headings of Subdivisions. The headings of the various
subdivisions hereof are far convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
Section 12. Severability of Provisions. If any right, preference or
limitation of the Series A Convertible Preferable Stock set forth in this
resolution (as such resolution may be amended from time to time) is invalid,
unlawful or incapable of being enforced by reason of any rule of law or public
policy, all other rights, preferences and limitations as forth in this
resolution (as so amended) which can be given effect without the invalid,
unlawful or unenforceable right, preference or limitation shall, nevertheless,
remain in full force and effect, and no right, preference or limitation herein
set forth shall be deemed dependent upon any other such right, preference or
limitation unless so expressed herein.
Neil H. Ashley declares under penalty of perjury under the laws of the
State of California that he has read the foregoing certificate and knows the
contents thereof and that the same is true of his own knowledge.
Dated: December 5, 1994 By: /s/
---------------------------------
Neil H. Ashley,
Chief Executive Officer
John R. Bollington declares under penalty of perjury under the laws of the
State of California that he has read the foregoing certificate and knows the
contents thereof and that the same is true of his own knowledge.
Dated: December 5, 1994 By: /s/
----------------------------------
John R. Bollington,
Secretary
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
20TH CENTURY INDUSTRIES
Neil H. Ashley and John R. Bollington certify that:
1. They are the Chief Executive Officer and Secretary, respectively, of
20th Century Industries, a California corporation.
2. Article IV of the Articles of Incorporation is hereby amended to
read in full as follows:
IV
This corporation is authorized to issue two classes of shares to be
designated respectively "Preferred Shares" and "Common Shares" the total
number of shares which this corporation has authority to issue is
110,500,000 and the aggregate per value of all shares that arc to have a
par value shall be $500,000; the number of Preferred Shares that are to
have a per value shall be 500,000 and the par value of each share of such
class shall be $1 and the number of Common Shares without per value shall
be 110,000,000. The Preferred Shares may be issued from time to time in one
or more series. The board of directors is hereby authorized to fix or alter
the dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices and the liquidation preferences of any wholly
unissued series of Preferred Shares, and the number of shares constituting
any such series and the designation thereof, or any of them; and to
increase or decrease the number of shares of any series subsequent to the
issue of shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of any series shall
be so decreased, the shares constituting such decrease shall resume the
status which they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
3. Articles V, VI, VII and VIII of the Articles of Incorporation are
hereby renumbered as Articles VI, VII, VIII and IX, respectively.
4. A new Article V is hereby added to the Articles of Incorporation,
which shall read in full as follows:
V
A. Prohibited Transfer; Excess Stock. Except as provided in
Section G, until the Restriction Termination Date, any attempted direct or
indirect Transfer of Stock shall be deemed a "Prohibited Transfer" if (i)
such Transfer would increase the Percentage of Stock Owned by any Person
that (or by any Person whose Stock is or by virtue of such Transfer would
be attributed to any Person that), either after giving effect to the
attribution rules (including the option attribution rules) of Section 382
or without regard to such attribution rules, Owns, by virtue of such
Transfer would Own, a has any time since the period beginning three years
prior to the date of such Transfer Owned, Stock in excess of the Limit,
(ii) such Transfer would increase the Percentage of Stock Owned by any 5%
Shareholder (including but not limited to a Transfer that results in the
creation of a 5% Shareholder), or (iii) such Transfer would cause an
"ownership change" of the corporation within the meaning of Section 382.
Except as otherwise provided in Sections D and F, the Stock or Option
sought to be Transferred in the Prohibited Transfer shall be deemed "Excess
Stock."
B. Transfer of Excess Stock to Trustee. Except as otherwise
provided in Sections D and F, a Prohibited Transfer shall be void and o as
to the Purported Transferee in the Prohibited Transfer and such Purported
Transferee shall not be recognized as the owner of the Excess Stock for any
purpose and shall not be entitled to any rights as a stockholder of the
corporation arising from the ownership of Excess Stock, including, but not
limited to, the right to vote such Excess Stock or to receive dividends or
other distributions in respect thereof or, in the case of Options, to
receive Stock in respect of their exercise. Any Excess Stock shall
automatically be transferred to the Trustee in trust for the benefit of the
Charitable Beneficiary, effective as of the close of business on the
business day prior to the date of the Prohibited Transfer; provided,
however, that if the transfer to the trust is deemed ineffective for any
reason, such Excess Stock shall nevertheless be deemed to have been
automatically transferred to the person selected as the Trustee at such
time, and such person shall have rights consistent with those of the
Trustee as described in this section and in Section C below. Any dividend
or other distribution with respect to such Excess Stock paid prior to the
discovery by the corporation that the Excess Stock has been transferred to
the Trustee ("Prohibited Distributions) shall be deemed to be held by the
Purported Transferee as agent for the Trustee, and shall be paid to the
Trustee upon demand, and any dividend or distribution declared but unpaid
shall be paid when due to the Trustee. Any vote cast by a Purported
Transferee with respect to Excess Stock prior to the discovery by the
corporation that the Excess Stock has been transferred to the Trustee will
be rescinded as void and shall be recast in accordance with the desires of
the Trustee acting far the sole benefit of the Charitable Beneficiary. The
Purported Transferee and any other Person holding certificates representing
Excess Stock shall immediately surrender such certificates to the Trustee.
The Trustee shall have all the rights of the owner of the Excess Stock,
including the right to vote, to receive dividends or other distributions,
and to receive proceeds from liquidation, which rights shall be exercised
for the sole benefit of the Charitable Beneficiary.
C. Disposition of Excess Stock. As soon as practicable
following receipt of notice from the corporation that Excess Stock has been
transferred to the Trustee, due Trustee shall take such actions as it deems
necessary to dispose of the Excess Stock in an arm's- length transaction
that would not constitute a Prohibited Transfer. Upon the disposition of
much Excess Stock, (i) the interest of the Charitable Beneficiary in the
Excess Stock shall terminate, and (ii) the Trustee shall distribute the net
proceeds of the sale as follows: (a) the Purported Transferee shall receive
an amount of the net proceeds of such series not to exceed the Purported
Transferee's costs incurred to acquire such Excess Stock, or, if such
Excess Stock was Transferred for less than fair market value, the fair
market value of the Excess Stock on the date of the Prohibited Transfer, in
each case less all costs incurred by the corporation, the Trustee and the
Transfer Agent in enforcing the Restrictions, and (b) the Charitable
Beneficiary shall receive the balance of the net proceeds from the sale of
the Excess Stock, if any, together with any Prohibited Distributions
received from the Purported Transferee and any, other distributions with
respect to such Excess Stock while such Stock was held by the Trustee. In
the event the Purported Transferee has disposed of the Excess, Stock and
distributed the proceeds and other amounts otherwise than in accordance
with this section, then (w) such Purported Transferee shall be deemed to
have disposed of such Excess Stock as an agent for the Trustee, (x) such
Purported Transferee shall be deemed to hold such proceeds and any
Prohibited Distributions as an agent for the Trustee, (y) such Purported
Transferee shall be required to return to the Trustee the proceeds from
such sale, together with any Prohibited Distributions theretofore received
by the Purported Transferee with respect to such Excess Stock, provided
that upon receipt of written permission from the Trustee, the Purported
Transferee will be entitled to retain an amount of such sale proceeds not
to exceed the amount that such Purported Transferee would have received
from the Trustee if the Trustee had obtained and resold the Excess Stock at
any time during the period beginning on the date of the Prohibited Transfer
giving rise to such Excess Stock and ending on date of such disposition by
the Purported Transferee, assuming for this purpose that the Trustee would
have sold the Excess Stock for an amount equal to the lowest-quoted trading
price of such Excess Stock during such period, and (a) the trustee shall
transfer any remaining proceeds to the Charitable Beneficiary. Neither the
Trustee, the corporation, the Purported Transferee nor any other party
shall claim an income tax deduction with respect to any transfer to the
Charitable Beneficiary and neither the Trustee nor the corporation shall
benefit In any way from the enforcement of the Restrictions, except insofar
as these restrictions to protect the corporation's Income Tax Net Operating
Loss Carryover. Neither the Trustee, the corporation nor the Transfer Agent
shall have any liability to any Person for any loss arising from or related
to a Prohibited Transfer.
D. Transfers by 5% Shareholders. In the event a Prohibited
Transfer is attributable to a Transfer by a 5% Shareholder, the corporation
and the Transfer Agent shall make all reasonable efforts to locate the
Person or Public Group who acquired the Excess Stock (the Public
Purchaser). In the event the corporation is able to locate the Public
Purchaser within ninety (90) days of the Prohibited Transfer, the
corporation shall request that the Public Purchaser surrender the Excess
Stock, together with any dividends or other distributions theretofore
received with respect to the Excess Stock by the Public Publisher, to the
Purported Transferor, and, if such Stock is surrendered, the Public
Publisher shall surrender to the Public Publisher the purchase price paid
by the Public Purchaser for the Excess Stock, plus, if the Public Purchaser
acquired Ownership of due Excess Stock without knowledge that such
acquisition was a Prohibited Transfer, an amount equal to all other losses,
damages, costs and expenses incurred by the Public Purchaser to acquire
Ownership of the Excess Stock and to comply with the Restrictions
(including any loss incurred as a remit of a decline in value of such
Stock). In the event the Transfer Agent and the corporation are unable to
locate due Public Purchaser within ninety (90) days following the
Prohibited Transfer, or the Public Purchaser refuses to surrender or has
disposed of the Excess Stock prior to the surrender of the Excess Stock to
the Purported Transferor, such Stock shall no longer be treated as Excess
Stock and due corporation shall (i) purchase from one or more third
parties, in one or more transactions that would, to the extent possible,
reduce the Ownership of Stock by the Person or Public Group whose Ownership
increased as a result of the Prohibited Transfer to an amount equal to such
Ownership immediately prior to the Prohibited Transfer, shares of Stock
equal in type and number to the Stock Transferred in the Prohibited
Transfer (which Stock shall be treated as Excess Stock), (ii) hold such
Stock for and on behalf of the Purported Transferor, (iii) treat such Stock
as Owned by the Purported Transferor since the date of the Prohibited
Transfer for all purposes, including the right to vote and to receive
dividends and other distributions, and (iv) for all purposes treat any
dividends and other distributions made to such Person or Public Group as a
dividend or other distribution to the Purported Transferor, a payment by
the Purported Transferor to the corporation to be applied against the
Amount Due (as defined below), and a non-dividend payment to the Persons or
Public Group who received such distributions. To the extent reasonably
possible, any votes cast by such Person or Public Group from and after the
date of the Prohibited Transfer with respect to Excess Stock shall be
rescinded in the same proportion as the votes actually cast by such Person
or Public Group, and the Purported Transferor shall be entitled to cast
those votes that were rescinded. The corporation shall hold such Excess
Stock, and any dividends or other distributions thereon, on behalf of the
Purported Transferor, as security for payment of the Amount Due, until the
earlier of such the as (y) the corporation has received, either directly
from the Purported Transferor or indirectly from any dividends or other
distributions theretofore received by the corporation with respect to such
Excess Stock on behalf of the Purported Transferor (or any amounts deemed
paid by the Purported Transferor as provided in this Section D), or any
combination thereof, an amount equal to the amount incurred by the
corporation to fund the purchase such Excess Stock plus all costs incurred
by the corporation in enforcing due Restrictions with respect to such
Prohibited Transfer (including the amount of any non dividend payment
deemed made by the corporation to the Person or Public Group as provided in
this Section D), plus interest on all such amounts from the dates incurred
by the corporation at the "applicable federal rate" detrained under Section
1274(d) of the Code (collectively, the "Amount Due") (it being the intent
to treat the Amount Due and any portion thereof as a loan to the Purported
Transferor), or (z) the corporation is able to dispose of such Excess Stock
on behalf of the Purported Transferor in a transaction that would not be a
Prohibited Transfer, in which case the corporation will sell such Excess
Stock and distribute to the Purported Transferor any proceeds (together
with any other cash distributions theretofore received (or deemed received)
with respect to the Exams Stock) in excess of the Amount Due. The
obligation of the Purported Transferor for the Amount Due shall be payable
on demand by the corporation. In the event the Amount Due exceeds the
proceeds from & a sale of Excess Stock and any cash distributions
theretofore received (or deemed received) by the corporation on behalf of
the Purported Transferor with respect to such Excess Stock, the balance
shall be due from the Purported Transferor on demand.
E. Transfer Agent's Rights and Responsibilities. The Transfer
Agent shall not register any Transfer of Stock on the corporation's stock
transfer records if it has knowledge that such Transfer is a Prohibited
Transfer. The Transfer Agent shall have the right, prior and as a condition
to registering any Transfer of Stock on the corporation's stock transfer
records, to request any transferee of the Stock to submit an affidavit, on
a form agreed to by the Transfer Agent and the corporation, stating the
number of shares of each class of Stock Owned by the transferee (and by
Persons who would Own the transferees Stock) before the proposed Transfer
and that would, if effect were given to the proposed Transfer, be Owned by
the transferee (and by Persons who would Own the prospective transferee's
Stock) after the proposed Transfer. If either (i) the Transfer Agent does
not receive such affidavit, or (ii) such affidavit evidences that the
Transfer was a prohibited Transfer, the Transfer Agent shall notify the
corporation and shall not take enter the Prohibited Transfer into the
corporation's stock transfer records, and the Trustee, the corporation and
the Transfer Agent shall take such steps as provided in the Restrictions in
order to dispose of the Excess Stock purportedly Owned by such Purported
Transferee. If the Transfer Agent, for whatever reason, enters a Prohibited
Transfer in the corporation stock transfer records, such Transfer shall be
nonetheless void and shall have no force and effect, in accordance with the
Restrictions, and the corporation's stock transfer records shall be revised
to so provide.
F. Certain Indirect Prohibited Transfers. In the event a
Transfer would be a Prohibited Transfer as a result of attribution to the
Purported Transferee of the Ownership of Stock by a Person (an "Other
Person') who is non controlling, controlled by or under common control with
the Purported Transferee, which Ownership is nevertheless attributed to the
Purported Transferee, the Restrictions shall not apply in a manner that
would invalidate any Transfer to such Other Person, and the Purported
Transferee and any Persons controlling, controlled by or under common
control with the Purported Transferee (collectively, the "Purported
Transferee Group) shall automatically be deemed to have transferred to the
Trustee at the time and in a manner consistent with Section B hereof,
sufficient Stock (which Stock shall (i) consist only of Stock held legally
or beneficially, whether directly or indirectly, by any member of the
Purported Transferee Group, but not Stock held through any Other Person,
other than shares held through a Person acting as agent or fiduciary for
any member of the Purported Transfers Group, (ii) be deemed transferred to
the Trustee, in the inverse order in which it was acquired by members of
the Purported Transferee Group, and (iii) be treated as Excess Stock) to
cause the Purported Transferee, following such transfer to the Trustee, not
to be in violation of the Restrictions; provided, however, that to the
extent the foregoing provisions of this Section F would not be effective to
prevent a Prohibited Transfer, the Restrictions shall apply to such other
Stock Owned by the Purported Transferee (including Stock actually owned by
Other Persons), in a manner designed to minimize the amount of Stock
subject to the Restrictions or as otherwise determined by the Board of
Directors to be necessary to prevent a Prohibited Transfer (which Stock
shall be treated as Excess Stock).
G. Exceptions. The term "Prohibited Transfer" shall not
include: (i) he original issuance of Series A Convertible Preferred Stock
pursuant to the Investment Agreement, (ii) the original issuance of Series
A Warrants pursuant to the Investment Agreement, (iii) the conversion of
Series A Convertible Preferred Stock, (iv) the sale of Series A Convertible
Preferred Stock or Common Shares acquired upon the conversion thereof if
the series would not be a Prohibited Transfer but for the transferor's
ownership of Stock, in either case in compliance with the Investment
Agreement, (v) any purchase of Stock permitted by Section 6.1(b) of the
Investment Agreement, (vi) any series of any securities of the corporation
acquired pursuant to the Investment Agreement after the Restriction
Effective Date if such acquisition was not prohibited pursuant to the terms
of the Investment Agreement, (vii) any Transfer described lit Section
382(1)(3)(B) of the Code (relating to transfers upon death or divorce and
certain gifts) if all Persons who would Own the Stock Transferred would be
treated for purposes of Section 382 as having Owned such Stock at all times
beginning more than three (3) years prior to the date of the Transfer,
(viii) any series of Common Stock by a Person who 0mm more than 4.75% of
the outstanding Common Stock on November 15, 1994 if such sale would not
result in a net increase in the amount of Stock owned by 5% Shareholders
during the three-year period ending on the date of such series, provided
such sale would not otherwise be prohibited under the Restrictions but for
such transferor's Ownership of Stock, and (ix) any Transfer with respect to
which the Person who would otherwise be the Purported Transferee obtains or
is granted the prior written approval of the Board of Directors of the
corporation, which approval shall be granted in its sole and absolute
discretion after considering all facts and circumstances, including but not
limited to future events the occurrence of which are deemed by the Board of
Directors of the corporation to be reasonably possible.
H. Legend. All certificates or other instruments evidencing
Ownership of Stock shall bear a conspicuous legend describing the
restrictions. The Board of Directors shall take such actions as it deems
necessary to substitute certificates evidencing ownership of Stock and
bearing such legend for certificates not baring such legend.
I. Prompt Enforcement; Further Actions. As soon as practicable
and within thirty (30) business days of learning of a purported Prohibited
Transfer, the corporation through its Secretary or any assistant Secretary
shall demand that the Purported Transferee (or any other member of the
Purported Transferee Group) or Public Purchaser surrender to the Trustee
the certificates representing the Excess Stock or any resale proceeds
therefrom, and any Prohibited Distributions or other dividends or
distributions received thereon, and if such surrender is not made within
twenty (20) business days from the date of such demand, the corporation
shall institute legal proceedings to compel such surrender and for
compensatory damages on account of any failure to take such actions;
provided. however, that nothing in this Section I shall preclude the
corporation in its discretion from immediately bringing legal proceedings
without a prior demand, and also provided that failure of the corporation
to act within the time periods set out in this section shall not constitute
a waiver of any right of the corporation to compel any transfer required
hereby. Upon a determination by the Board of Directors that then has been
or is threatened a Prohibited Transfer, the Board of Directors may
authorize such additional action as it deems advisable to give effect to
the Restrictions, including, without limitation, refusing to give effect on
the books of the Company to any such purported Prohibited Transfer or
instituting proceedings to enjoin any such purported Prohibited Transfer.
Nothing contained in the Restrictions shall limit the authority of the
Board of Directors to take such other action to the extent permitted by law
as it deems necessary or advisable to protect the corporation and the
Interests of the holders of its securities in preserving the Income Tax Net
Operating Loss Carryover, including, but not limited to, refusing to give
effect to any Prohibited Transfer or other action on the books of the
corporation or instituting proceedings to enjoin any Prohibited Transfer or
other action; provided, however, that any Prohibited Transfer shall
nevertheless result in the consequences otherwise described in the
Restrictions.
J. Board Authority to Interpret. The Board of Directors shall
have the authority to interpret the provisions of the Restrictions for the
purpose of protecting the Income Tax Net Operating Loss Carryover. Any such
interpretation shall be final and binding on any Person or Public Group who
Owns or purports to acquire Ownership of Stock.
K. Damages. Any person who knowingly violates the Restrictions,
and any persons controlling, controlled by or under common control with
such a person, shall be jointly and severally liable to the corporation
for, and shall indemnify & and hold the corporation harmless against, any
and all damages suffered as a result of such violation, branding but not
limited to damages resulting from a reduction In or elimination of the
corporations ability to utilize its Income Tax Net Operating Loss
Carryover, and attorneys' and accountants' fees incurred in connection with
such violation.
L. Severability. If any part of the Restrictions is judicially
determined to be invalid on otherwise unenforceable, such invalidity or
unenforceable shall not affect the remainder of the Restrictions, which
shall be thereafter interpreted as if the invalid or unenforceable part
were not contained herein, and, to the maximum extent possible, in a manner
consistent with preserving the ability of the corporation to utilize to the
greatest extent possible the Income Tax Net Operating Loss Carryover.
M. Effects on Stock Exchange Transactions. Nothing in the
Restrictions shall preclude the settlement of a transaction entered into
through the facilities of the New York Stock Exchange. The Stock that is
the subject of such transaction shall continue to be subject to the terms
of the Restrictions after such settlement.
N. Definitions:
"AIG shall mean American International Group, Inc., a Delaware
corporation, and its subsidiaries, collectively.
"Charitable Beneficiary" shall mean an organization described
in Sections l70(b)(1)(A), 170(c)(2) and 5Ol(c)(3) of the Code designated in
writing by the corporation.
"Code" shall mean the Internal Revenue Code of 1986, as amended
and as it may be amended from time to time hereafter.
"Control" shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management, policies or
decisions of a Person, whether through the ownership of voting securities,
by contract, family relationship or otherwise. The terms "controlling,"
"controlled by" and "under common control with" shall have correlative
meanings. A Person shall be
deemed to control or be under common control with a Purported Transferee If
the Excess Stock Owned by such Person Is treated as Owned by the Purported
Transferee by virtue of the family attribution rules of Section 318 of the
Code.
"5% Shareholder" shall mean any Person or Public Group who is a
"5-percent shareholder" of due corporation within the meaning of Section
382, substituting "4.75 percent" for "5 percent" each place it appears
therein.
"Income Tax Net Operating Loss Carryover" shall mean the net
operating loss, capital loss, net unrealized built-in loss, general
business credit, alternative minimum tax credit, foreign tax credit and any
other carryovers or losses as determined for United States federal income
tax purposes that are or could become subject to limitation under Section
382, and to which the corporation is entitled under the Code and
Regulations, at any the during which the Restrictions are in force.
"Investment Agreement" shall mean that Investment and Strategic
Alliance Agreement between the corporation and AIG, dated as of October 17,
1994, including the Exhibits and Schedules thereto, as it may be amended
from time to time.
"Limit" shall mean the lesser of (i) 4.75 Percent of the Stock,
(ii) 4.75 percent of the outstanding Common Shares or (iii) 4.75 percent of
the outstanding Series A Convertible Preferred Stock.
"Option" shall mean any interest that could give rise to the
Ownership of Stock and that is an option, contract, warrant, convertible
instrument, put, call, stock subject to a risk of forfeiture, pledge of
stock or any interest that is similar to any of such interests or any other
Interest that would be treated, under paragraph (d)(9) of Treasury
Regulation Section 1.382-4, in the nine manner as an option, whether or not
any of such interests is subject to contingencies.
"Own," and all derivations of the word "Own," shall mean any
direct or indirect, actual or beneficial interest, including, except as
otherwise provided, a constructive ownership interest under the attribution
rules (including the option attribution rules) of Section 382. In
determining whether a Person Owns an amount of Stock in excess of the
Limit, Options Owned by such Person (or other Persons whose Ownership of
Stock is or would be attributable under Section 382 to such Person) shall
be treated as exercised (and the Stock that would be acquired if such
Options Owned by other Persons were exercised shall be treated as not
outstanding) and Options Owned by other Persons shall be treated as not
exercised (and the Stock dint would be acquired if such Options Owned by
Other Persons we exercised shall be treated as not outstanding), in each
case without regard to whether such treatment would result in an ownership
change within the meaning of Section 382. In determining whether a Transfer
that is an exercise, conversion or similar transaction with respect to an
Option increases the Percentage Ownership of Stock of any Person or Public
Group, such Option shall be treated as if it were not Owned by such Person
immediately prior to such Transfer.
"Percent," "Percentage" or "%" shall mean percent or percentage
by value.
"Person" shall mean any individual (other than a Public Group
treated as an individual under Section 382) or any "entity" as that term is
defined in Regulations Section 1.382-3(a).
"Public Group" shall have the meaning assigned to such term in
the application Regulations under Section 382. Any Transfer or attempted
Transfer of Stock to or from an individual or entity whose Stock is
included in determining the Percentage of Stock Owned by a Public Group for
purposes of Section 382 shall be treated as a Transfer or attempted
Transfer to such Public Group.
"Purported Transferee" shall mean a Person or Public Group who
acquires Ownership of Excess Stock in a Prohibited Transfer or, except as
otherwise provided in the Restrictions, any subsequent transferee of such
Excess Stock.
"Purported Transferor" shall mean a Person who Transfers Excess
Stock in a Prohibited Transfer.
"Regulations" shall mean Treasury Regulations, including
proposed or temporary regulations, promulgated under the Code, as the same
may be amended from time to time. References herein to specific provisions
of temporary Regulations shall include the analogous provisions of final
Regulations or other successor Regulations.
"Restriction Effective Date" shall mean the date of the closing
of the purchase of the Series A Convertible Preferred Stock by AIG pursuant
to the Investment Agreement.
"Restriction Termination Date" shall mean the earliest to occur
of (a) the end of due thirty-eighth (38th) month following the Restriction
Effective Date, (b) the first day of the first taxable year following the
taxable year (or years) in which the Income Tax Net Opening Loss Carryover
has been reduced to zero, or (c) the date upon which the Board of Directors
has determined that there has been a change in law (including but not
limited to the repeal of Section 382 without a successor provision that
places restrictions on the Income Tax Net Operating Loss Carryover based on
changes of ownership of the corporation's Stock similar to Section 382)
eliminating the need for the Restrictions in order to preserve the
corporation's ability to utilize the income Tax Net Operating Loss
Carryover.
"Restrictions" shall - the restrictions on the Transfer and
Ownership of Stock as set forth in this Article V.
"Section 382" shall mean Section 382 of the Code and the
Regulations promulgated thereunder, and any successor statute and
regulations.
"Stock" shall mean the Common Shares, the Series A Convertible
Preferred Stock, and any interest in the corporation that would be treated
as stock under Section 382, without regard to clauses (ii)(B) and (iii)(B)
of paragraph (f)(18) of Temporary Treasury Regulation Section 1.382-2T (but
only if, in determining the Ownership by any Person of Stock, the uniform
treatment of such interest as Stock or as not Stock, as the case may be,
would increase such Person's Percentage Ownership of Stock), and shall also
include any Stock the ownership of which may be acquired by the exercise of
an Option.
"Transfer" shall mean any direct or indirect acquisition or
disposition of stock, whether by sale, exchange, merger, consolidation,
transfer, assignment, conveyance, distribution, pledge, inheritance, gift,
mortgage, the creation of any security interest in, or lien or encumbrance
upon, or any other acquisition or disposition of any kind and in any
manner, whether voluntary or involuntary, knowing or unknowing, by
operation of law or otherwise. Notwithstanding any understandings or
agreements to which an Owner of Stock is a party, any arrangement, the
effect of which is to transfer any or all of the rights arising from
Ownership of Stock, shall be treated as a Transfer. A Transfer shall also
include (i) a transfer of an interest in an entity and a change in the
relationship between two or more Persons that results in a change in the
Ownership of Stock and (ii) the creation, grant, exercise, conversion,
Transfer or other disposition of or with respect to an Option, regardless
of whether such Option previously had been treated as exercised or
converted for any other purpose; provided, however, that a Transfer shall
not include the issuance or disposition (other than a conversion, exercise
or similar transaction in which Stock is acquired) of an Option described
in paragraph (d)(9) of Treasury Regulation Section 1.382-4, and whether an
Option is so described shall be determined by the Board of Directors in its
sole and absolute discretion.
"Transfer Agent" means the Person responsible for maintaining
the books and records in which are recorded the ownership and transfer of
shares of Stock or any Person engaged by the corporation for the purpose of
fulfilling the duties required to be fulfilled by the Transfer Agent
hereunder.
"Trustee" means the trustee of the trust appointed by the
corporation, provided that the Trustee shall be a Person unaffiliated with
the corporation, any 5% Shareholder, and any Person purchasing or disposing
of Stock in a Prohibited Transfer.
5. The foregoing amendments to the Articles of Incorporation of the
corporation have been approved by the Board of Directors.
6. The foregoing amendments to the Articles of Incorporation of the
corporation have been duly approved by the required vote of shareholders in
accordance with Section 902 of the Corporations Code. The corporation has only
one class of shares outstanding, to wit, Common Stock. The total number of
outstanding shares of Common Stock of the corporation is 51,472,471. The vote
of a majority of the outstanding shares of Common Stock was required to approve
the foregoing amendments. The number of shares of Common Stock voting in favor
of the amendments equaled or exceeded the vote required.
/s/
--------------------------------
NEIL H. ASHLEY
/s/
--------------------------------
JOHN R. BOLLINGTON
Each of the undersigned declares under the penalty of perjury under the
laws of the State of California that the matters set forth in the foregoing
Certificate are true and correct of his own knowledge and that this declaration
was executed on December 15, 1994, at Woodland Hills, California.
/s/
--------------------------------
NEIL H. ASHLEY
/s/
--------------------------------
JOHN R. BOLLINGTON
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
20TH CENTURY INDUSTRIES
William L. Mellick and Michael J. Cassanego, certify that:
1. They are the President and Secretary, respectively, of 20th Century
Industries, a California corporation (this "Corporation").
2. Article I of the Articles of Incorporation of this Corporation is
amended to read as follows:
"I
The name of this corporation is 2lst CENTURY INSURANCE GROUP."
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the Board of Directors of this Corporation.
4. The foregoing amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section 902 of
the California Corporations Code. The total number of outstanding shares of the
Corporation is 87,251,339. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote required was more
than 50 percent. The Corporation has no shares of Series A Convertible Preferred
outstanding.
The undersigned further declare under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
and correct of their own knowledge.
Dated: September 8, 1999
/s/
--------------------------------
Name: William L. Mellick
Title: President
/s/
--------------------------------
Name: Michael J. Cassanego
Title: Secretary
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
20TH CENTURY INDUSTRIES
William L. Mellick and Michael J. Cassanego, certify that
1. They are the President and Secretary, respectively, of 20th Century
Industries, a California corporation (this "Corporation").
2. Article I of the Articles of Incorporation of this Corporation is
amended to read as follows:
"I
The name of this corporation is 2lst CENTURY INSURANCE GROUP."
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the Board of Directors of this Corporation.
4. The foregoing amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section 902 of
the California Corporations Code. The total number of outstanding shares of the
Corporation is 87,251,339. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote required was more
than 50 percent.
The Corporation has no shares of Series A Convertible Preferred
outstanding.
The undersigned further declare under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
and correct of their own knowledge.
Dated: September 8, 1999
/s/
--------------------------------
Name: William L. Mellick
Title: President
/s/
--------------------------------
Name: Michael J. Cassanego
Title: Secretary
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
20TH CENTURY INDUSTRIES
William L. Mellick and Michael J. Cassanego, certify that:
1. They are the President and Secretary, respectively, of 20th Century
Industries, a California corporation (this "Corporation").
2. Article I of the Articles of Incorporation of this Corporation is
amended to read as follows:
"I
The name of this corporation is 2lst CENTURY INSURANCE GROUP."
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the Board of Directors of this Corporation.
4. The foregoing amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section 902 of
the California Corporations Code. The total number of outstanding shares of the
Corporation is 87,251,339. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote required was more
than 50 percent.
The Corporation has no shares of Series A Convertible Preferred
outstanding.
The undersigned further declare under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
and correct of their own knowledge.
Dated: September 8, 1999
/s/
--------------------------------
Name: William L. Mellick
Title: President
/s/
--------------------------------
Name: Michael J. Cassanego
Title: Secretary
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
20TH CENTURY INDUSTRIES
William L. Mellick and Michael J. Cassanego, certify that
1. They are the President and Secretary, respectively, of 20th Century
Industries, a California corporation (this "Corporation").
2. Article I of the Articles of Incorporation of this Corporation is
amended to read as follows:
"I
The name of this corporation is 2lst CENTURY INSURANCE GROUP."
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the Board of Directors of this Corporation.
4. The foregoing amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section 902 of
the California Corporations Code. The total number of outstanding shares of the
Corporation is 87,251,339. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote required was more
than 50 percent.
The Corporation has no shares of Series A Convertible Preferred
outstanding.
The undersigned further declare under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
and correct of their own knowledge.
Dated: September 8, 1999
/s/
--------------------------------
Name: William L. Mellick
Title: President
/s/
--------------------------------
Name: Michael J. Cassanego
Title: Secretary