Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
UNISOURCE WORLDWIDE, INC.
FIRST: The name of the corporation is Unisource Worldwide, Inc.
(hereinafter referred to as the "Corporation").
SECOND: The registered office of the Corporation is to be located at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, in the
County of New Castle, in the State of Delaware. The name of its registered
agent at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware ("GCL").
FOURTH:
A. Authorized Stock.
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The total number of shares of stock which the Corporation shall have
authority to issue is two hundred and sixty million (260,000,000) shares,
consisting of two hundred and fifty million (250,000,000) shares of common
stock, each with a par value of $0.001 per share (hereinafter referred to
as the "Common Stock"), and ten million (10,000,000) shares of preferred
stock, each with a par value of $0.001 per share (hereinafter referred to
as the "Preferred Stock"). The powers, designations, preferences and
relative, participating, optional or other special rights (and the
qualifications, limitations or restrictions thereof) of the Common Stock
and the Preferred Stock are as follows:
B. Preferred Stock.
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(i) The Board of Directors is hereby expressly authorized at any time,
and from time to time, to create and provide for the issuance of shares of
Preferred Stock in one or more series (the "Series Preferred Stock") and,
by filing a certificate pursuant to the GCL (hereinafter referred to as a
"Preferred Stock Designation"), to establish the number of shares to be
included in each such series, and to fix the designations, preferences and
relative, participating, optional or other special rights of the shares of
each such series and the qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
providing for the issue thereof adopted by the Board of Directors,
including, but not limited to, the following:
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(1) the designation of and the number of shares constituting such
series, which number the Board of Director may thereafter (except as
otherwise provided in the Preferred Stock Designation) increase or decrease
(but not below the number of shares of such series then outstanding);
(2) the dividend rate for the payment of dividends on such series, if
any, the conditions and dates upon which such dividends shall be payable,
the preference or relation which such dividends, if any, shall bear to the
dividends payable on any other class or classes of or any other series of
capital stock, the conditions and dates upon which such dividends, if any,
shall be payable, and whether such dividends, if any, shall be cumulative
or non-cumulative;
(3) whether the shares of such series shall be subject to redemption by
the Corporation, and, if made subject to such redemption, the times, prices
and other terms and conditions of such redemption;
(4) the terms and amount of any sinking fund provided for the
purchase or redemption of the shares of such series;
(5) whether or not the shares of such series shall be convertible into
or exchangeable for shares of any other class or classes of, any other
series of any class or classes of capital stock of, or any other security
of, the Corporation or any other corporation, and, if provision be made for
any such conversion or exchange, the times, prices, rates, adjustments and
any other terms and conditions of such conversion or exchange;
(6) the extent, if any, to which the holders of the shares of such
series shall be entitled to vote as a class or otherwise with respect to
the election of directors or otherwise;
(7) the restrictions, if any, on the issue or reissue of shares
of the same series or of any other class or series;
(8) the amounts payable on and the preferences, if any, of the
shares of such series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; and
(9) any other relative rights, preferences and limitations
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of that series.
(ii) The first series of the Series Preferred Stock, par value $0.001 per
share, shall consist of 1,500,000 shares and shall be designated as Series A
Junior Participating Preferred Shares (the "Series A Preferred Shares"). The
voting rights, designations, preferences, qualifications, privileges,
limitations, restrictions, options, conversion rights and other special or
relative rights of the Series A Preferred Shares are as follows:
(1) Dividends and Distributions.
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(a) The rate of dividends payable per share of Series A Preferred
Shares on the first day of January, April, July and October in each year
or such other quarterly payment date as shall be specified by the Board
of Directors (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share
of the Series A Preferred Shares, shall be (rounded to the nearest cent)
equal to the greater of (i) $4.00 or (ii) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate per share
amount (payable in cash, based upon the fair market value at the time
the non-cash dividend or other distribution is declared or paid as
determined in good faith by the Board of Directors) of all non-cash
dividends or other distributions other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock,
par value $0.001 per share, of the Corporation since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of the Series A Preferred Shares. Dividends on
the Series A Preferred Shares shall be paid out of funds legally
available for such purpose. In the event the Corporation shall at any
time after December 11, 1996 (the "Rights Declaration Date") (i) declare
any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, then
in each such case the amounts to which holders of Series A Preferred
Shares were entitled immediately prior to such event under clause (ii)
of the preceding sentence shall be adjusted by multiplying each such
amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Dividends shall begin to accrue and be cumulative on
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outstanding Series A Preferred Shares from the Quarterly Dividend
Payment Date next preceding the date of issue of such Series A Preferred
Shares, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of holders
of Series A Preferred Shares entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the Series A Preferred Shares in an
amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time outstanding.
(2) Voting Rights. In addition to any other voting rights required by
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law, the holders of Series A Preferred Shares shall have the following
voting rights:
(a) Subject to the provision for adjustment hereinafter set forth,
each Series A Preferred Share shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding shares of
Common Stock, or (iii) combine the outstanding shares of Common Stock
into a smaller number of shares, then in each such case the number of
votes per share to which holders of Series A Preferred Shares were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(b) In the event that dividends upon the Series A Preferred Shares
shall be in arrears to an amount equal to six full quarterly dividends
thereon, the holders of such Series A Preferred Shares shall become
entitled to the extent hereinafter provided to vote noncumulatively at
all elections of directors of the Corporation, and to receive notice of
all stockholders' meetings to be held for such purpose. At such
meetings, to the extent that directors are being elected, the holders of
such Series A Preferred Shares voting as a class shall be entitled
solely to elect two
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members of the Board of Directors of the Corporation; and all other
directors of the Corporation shall be elected by the other stockholders
of the Corporation entitled to vote in the election of directors. Such
voting rights of the holders of such Series A Preferred Shares shall
continue until all accumulated and unpaid dividends thereon shall have
been paid or funds sufficient therefor set aside, whereupon all such
voting rights of the holders of shares of such series shall cease,
subject to being again revived from time to time upon the reoccurrence
of the conditions above described as giving rise thereto.
At any time when such right to elect directors separately as a class
shall have so vested, the Corporation may, and upon the written request
of the holders of record of not less than 20% of the then outstanding
total number of shares of all the Series A Preferred Shares having the
right to elect directors in such circumstances shall, call a special
meeting of holders of such Series A Preferred Shares for the election of
directors. In the case of such a written request, such special meeting
shall be held within 90 days after the delivery of such request, and, in
either case, at the place and upon the notice provided by law and in the
By-laws of the Corporation; provided, that the Corporation shall not be
required to call such a special meeting if such request is received less
than 120 days before the date fixed for the next ensuing annual or
special meeting of stockholders of the Corporation. Upon the mailing of
the notice of such special meeting to the holders of such Series A
Preferred Shares, or, if no such meeting be held, then upon the mailing
of the notice of the next annual or special meeting of stockholders for
the election of directors, the number of directors of the Corporation
shall, ipso facto, be increased to the extent, but only to the extent,
necessary to provide sufficient vacancies to enable the holders of such
Series A Preferred Shares to elect the two directors hereinabove
provided for, and all such vacancies shall be filled only by vote of the
holders of such Series A Preferred Shares as hereinabove provided.
Whenever the number of directors of the Corporation shall have been
increased, the number as so increased may thereafter be further
increased or decreased in such manner as may be permitted by the By-laws
and without the vote of the holders of Series A Preferred Shares,
provided that no such action shall impair the right of the holders of
Series A Preferred Shares to elect and to be represented by two
directors as herein provided.
So long as the holders of Series A Preferred Shares are entitled
hereunder to voting rights, any vacancy in the Board of Directors caused
by the death or resignation of any director elected by the holders of
Series A Preferred Shares, shall, until the next meeting of stockholders
for the election of directors, in each case be filled by the remaining
director elected by the
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holders of Series A Preferred Shares having the
right to elect directors in such circumstances.
Upon termination of the voting rights of the holders of any series of
Series A Preferred Shares the terms of office of all persons who shall
have been elected directors of the Corporation by vote of the holders of
Series A Preferred Shares or by a director elected by such holders shall
forthwith terminate.
(c) Except as otherwise provided herein, in this Certificate of
Incorporation of the Corporation or by law, the holders of Series A
Preferred Shares and the holders of Common Stock (and the holders of
shares of any other series or class entitled to vote thereon) shall vote
together as one class on all matters submitted to a vote of stockholders
of the Corporation.
(3) Reacquired Shares. Any Series A Preferred Shares purchased or
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otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued
Series Preferred Stock and may be reissued as part of a new series of
Series Preferred Stock to be created by resolution or resolutions of the
Board of Directors.
(4) Liquidation, Dissolution or Winding Up.
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In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of Series A Preferred Shares
shall be entitled to receive the greater of (a) $100 per share, plus
accrued dividends to the date of distribution, whether or not earned or
declared, or (b) an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of Common Stock. In the
event the Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, or
(iii) combine the outstanding shares of Common Stock into a smaller
number of shares, then in each such case the amount to which holders of
Series A Preferred Shares were entitled immediately prior to such event
pursuant to clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(5) Consolidation, Merger, etc. In case the Corporation shall enter
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into
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any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such
case the Series A Preferred Shares shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common
Stock is changed or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the outstanding
shares of Common Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Shares shall be
adjusted by multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(6) No Redemption. The Series A Preferred Shares shall not be
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redeemable.
(7) Ranking. The Series A Preferred Shares shall rank junior to all
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other series of the Corporation's Series Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
(8) Fractional Shares. Series A Preferred Shares may be issued in
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fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Preferred Shares.
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C. Common Stock.
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Each holder of Common Stock shall have one vote in respect of each
share of Common Stock held by such holder of record on the books of the
Corporation for the election of directors and on all other matters on which
stockholders of the Corporation are entitled to vote. Subject to any
rights that may be conferred upon any holders of Preferred Stock or any
other series or class of stock as set forth in this Certificate of
Incorporation (excluding Common Stock), upon dissolution, the holders of
Common Stock then outstanding shall be entitled to receive the net assets
of the Corporation. Such net assets shall be divided among and paid to the
holders of Common Stock, on a pro-rata basis, according to the number of
shares of Common Stock held by them. Subject to any rights that may be
conferred upon any holders of Preferred Stock or any other series or class
of stock as set forth in this Certificate of Incorporation (excluding
Common Stock), the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets
of the Corporation which are by law available therefor, dividends payable
either in cash, in stock or otherwise.
FIFTH: The Corporation is to have perpetual existence.
SIXTH:
A. Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock as set forth in this
Certificate of Incorporation (excluding Common Stock) to elect additional
directors under specified circumstances, the number of directors of the
Corporation shall be fixed, and may be increased or decreased from time to
time, in such a manner as may be prescribed by the By-laws of the
Corporation.
B. Unless and except to the extent that the By-laws of the
Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
C. The directors, other than those who may be elected by the holders
of any series of Preferred Stock or any other series or class of stock
(excluding Common Stock) as set forth in this Certificate of Incorporation,
shall be divided into three classes as nearly equal in size as possible and
designated as Class I, Class II and Class III. Class I directors shall be
initially elected for a term expiring at the annual meeting of stockholders
next held after September 30, 1997, Class II directors shall be initially
elected for a term expiring at the annual meeting of stockholders next held
after September 30, 1998, and Class III directors shall be initially
elected for a term expiring at the annual meeting of stockholders next held
after September 30, 1999. Members of each class shall
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hold office until their successors are elected and qualified. At each
annual meeting of the stockholders of the Corporation, the successors of
the class of directors whose term expires at that meeting shall be elected
to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election, and until
their successors are elected and qualified.
D. Advance notice of stockholder nominations for the election of
directors and advance notice of other stockholder action proposed to be
taken at a stockholder's meeting shall be given in the manner provided in
the By-laws of the Corporation.
E. Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock (excluding Common Stock) as set
forth in the Certificate of Incorporation to elect directors under
specified circumstances and applicable law, any director may be removed
from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 66 2/3% of the voting power of all the
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class. Vacancies in the Board of
Directors shall be filled in the manner provided in the By-laws of the
Corporation.
F. Subject to the rights of the holders of any Preferred Stock or any
other series or class of stock (excluding Common Stock) set forth in the
Certificate of Incorporation, a special meeting of the stockholders shall
be called only by the secretary of the Corporation at the request of (i) a
majority of the total number of directors which the Corporation at the time
would have if there were no vacancies or (ii) by any person authorized by
the Board of Directors (through a vote of a majority of the total number of
directors which the Corporation at the time would have if there were no
vacancies) to call a special meeting.
G. Subject to the rights of the holders of any series of Preferred
Stock or any other series or class of stock (excluding Common Stock) set
forth in the Certificate of Incorporation to elect additional directors
under specified circumstances or to consent to specific actions taken by
the Corporation, any action required or permitted to be taken by the
stockholders of the Corporation must be taken at an annual or special
meeting of the stockholders and may not be taken by any consent in writing
by such stockholders.
H. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of
shares representing at least 66-2/3% of the voting power of the then
outstanding voting stock of the Corporation entitled to vote in elections
of directors generally, voting together as a single class, shall be
required to amend, repeal or adopt any provisions inconsistent with this
Article SIXTH.
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SEVENTH: The Board of Directors shall have the power, in addition to the
stockholders, to make, alter, or repeal the By-laws of the Corporation.
EIGHTH: A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Neither the amendment nor repeal of this Article EIGHTH, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article
EIGHTH, shall eliminate or reduce the effect of this Article EIGHTH in respect
of any matter occurring, or any cause of action, suit or claim that, but for
this Article EIGHTH, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders are granted subject to this reservation.
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