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EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
RAYTHEON COMPANY
Raytheon Company (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, does hereby
state as follows:
1. The present name of the Corporation is Raytheon Company. The
Corporation was originally incorporated under the name "Hughes Aircraft Company"
and its original Certificate of Incorporation was filed with the Secretary of
State on December 17, 1953.
2. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors of the Corporation in accordance with the provisions of
Section 245 of the Delaware General Corporation Law.
3. This Restated Certificate of Incorporation only restates and
integrates the provisions of the Corporation's Certificate of Incorporation and
does not further amend the provisions of the Corporation's Certificate of
Incorporation as heretofore amended or supplemented, and there is no discrepancy
between those provisions and the provisions of this Restated Certificate.
Article I.
Name
The name of the corporation (which is hereinafter referred to as the
"Corporation") is: "Raytheon Company"
Article II.
Registered Agent
The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
Article III.
Purpose
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware (the "DGCL").
Article IV.
Capital Stock
Section 1. The Corporation is authorized to issue 1,650,000,000 shares
of capital stock of which (a) 1,450,000,000 shares shall be shares of Common
Stock $.01 par value per share ("Common Stock"), and which shares of Common
Stock shall be divided into two classes, 450,000,000 shares of Common Stock
shall be shares of Class A Common Stock ("Class A Common Stock") and
1,000,000,000 shares of Common Stock shall be shares of Class B Common Stock
("Class B Common Stock"), and (b) 200,000,000 shares shall be shares of
Preferred Stock $.0l par value per share ("Preferred Stock").
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Section 2. Common Stock.
(a) Until the time that any shares of Class B Common Stock are first
issued, the powers, preferences and rights, and the qualifications, limitations
and restrictions of the Common Stock are as follows:
(i) Voting Rights. Except as otherwise required by law, the holders of
Class A Common Stock will be entitled to one vote per share on all matters to be
voted on by the Corporation's stockholders.
(ii) Dividends. The holders of Class A Common Stock will be entitled
to dividends if, when and as declared by the Corporation's board of directors,
out of funds legally available therefor, whether payable in cash, property or
securities of the Corporation.
(b) From and after the time that any shares of Class B Common Stock
are first issued, the powers, preferences and rights, and the qualifications,
limitations and restrictions of the Common Stock are as follows:
(i) Voting. The voting rights of the holders of record of shares of
Class A Common Stock and Class B Common Stock on the relevant record date for
each annual or special meeting of stockholders of the Corporation shall be as
set forth below:
(A) With respect to the election or removal of directors (x) the
holders of record of shares of Class B Common Stock shall be entitled to one (1)
vote for each share of Class B Common Stock standing in each such person's name
on the stock transfer records of the Corporation, which votes shall represent in
the aggregate 19.9% of the total voting power of all holders of Common Stock
entitled to vote thereon, and (y) the holders of record of shares of Class A
Common Stock shall be entitled to such number of votes for each share of Class A
Common Stock standing in each such person's name on the stock transfer records
of the Corporation as shall be necessary to entitle the holders of all shares of
Class A Common Stock to vote, in the aggregate, 80.1% of the total voting power
of all holders of Common Stock entitled to vote thereon. Promptly following the
fixing of a record date for each annual or special meeting of stockholders at
which directors are to be elected or a vote with respect to removal is to be
taken, the Board of Directors of the Corporation (the "Board") shall determine
the number of votes per share of Class A Common Stock that each holder of record
of Class A Common Stock shall be entitled to cast to implement the foregoing.
The determination of such number of votes by the Board shall be final and shall
be set forth in the notice of such meeting of stockholders delivered to the
holders of Common Stock.
(B) With respect to all matters on which holders of Common Stock shall
be entitled to vote other than the election or removal of directors, each share
of Class A Common Stock and each share of Class B Common Stock shall be entitled
to cast one (1) vote per share, and the approval of any such matter shall
require the affirmative vote of the holders of the shares of Class A Common
Stock and the shares of Class B Common Stock outstanding at the relevant record
date, with each class voting separately, in each case acting by such vote as
would be required under applicable law were such class of Common Stock the only
class of Common Stock of the Corporation then outstanding (or by such greater
vote than would be required under applicable law as may be set forth herein or
in the By-Laws of the Corporation), as well as the approval of the holders of
any class or series of Preferred Stock which may be entitled to vote thereon.
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(ii) Dividends. Subject to the rights of the holders of any class or
series of outstanding Preferred Stock and subject to any other provisions hereof
and applicable law, holders of shares of Class A Common Stock and holders of
shares of Class B Common Stock shall be entitled to receive such dividends and
other distributions in cash, stock or property of the Corporation as may be
declared thereon by the Board from time to time out of assets or funds of the
Corporation legally available therefor; provided that if a dividend or other
distribution on any Common Stock is declared or paid by the Corporation (which
declaration and payment shall be solely in the discretion of the Board),
including, but not limited to, dividends or other distributions payable in cash,
Common Stock or options or warrants to purchase Common Stock or securities
exchangeable for or convertible into Common Stock or other securities or
property of the Corporation, such dividend or other distribution shall be
declared and paid to the holders of Class A Common Stock and Class B Common
Stock and the holders of shares of Class A Common Stock and the holders of
shares of Class B Common Stock shall be entitled to receive the same amount per
share of any such dividends and other distributions in cash, securities or
property of the Corporation (and with respect to dividends or distributions not
in cash, in the same form); provided, however, that nothing in this Article IV
shall prevent the declaration of a dividend or other distribution of shares of
Class A Common Stock to holders of Class A Common Stock and shares of Class B
Common Stock to holders of Class B Common Stock so long as, immediately
following such dividend or other distribution, the number of shares of Class A
Common Stock and Class B Common Stock then outstanding bears the same
relationship to each other as did the number of shares of Class A Common Stock
and Class B Common Stock outstanding immediately prior to such dividend or other
distribution.
(iii) Split, Subdivision or Combination. In the case of any split,
sub-division, combination or reclassification of Class A Common Stock or Class
B Common Stock, the shares of Class B Common Stock or Class A Common Stock as
the case may be, shall also be split, subdivided, combined or reclassified so
that the number of shares of Class A Common Stock and Class B Common Stock
outstanding immediately following such split, subdivision, combination or
reclassification shall bear the same relationship to each other as did the
number of shares of Class A Common Stock and Class B Common Stock outstanding
immediately prior to such split, subdivision, combination or reclassification.
(iv) Liquidation, Dissolution, Mergers, etc. In the event of any
liquidation, dissolution or winding up (either voluntary or involuntary) of the
Corporation, the holders of Class A Common Stock and the holders of Class B
Common Stock shall be entitled to receive the assets and funds of the
Corporation available for distribution, after payments to creditors and to the
holders of any Preferred Stock of the Corporation that may at the time be
outstanding, in proportion to the number of shares held by them, respectively,
without regard to class. In the event of any corporate merger, consolidation,
purchase or acquisition of property or stock or other reorganization in which
any consideration is to be received by the holders of Class A Common Stock or
the holders of Class B Common Stock, the holders of Class A Common Stock and the
holders of Class B Common Stock shall receive the same type and amount of
consideration on a per share basis.
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(v) Repurchases, etc. The Corporation shall not directly or indirectly
redeem, purchase, repurchase or otherwise acquire for consideration (including,
without limitation, by directly or indirectly assisting or supporting any other
person or entity in any direct or indirect redemption, purchase, repurchase or
other acquisition for consideration), and shall not directly or indirectly in
any other fashion agree to, facilitate, condone or support in any way or manner
whatsoever any direct or indirect redemption, purchase, repurchase or other
acquisition for consideration by any person or entity of, any shares of Common
Stock unless such redemption, purchase, repurchase or other acquisition is
effected ratably in accordance with the number of outstanding shares of Class A
Common Stock and Class B Common Stock, is for consideration of the same type and
amount as to shares of Class A Common Stock and shares of Class B Common Stock,
and is not in any other way prejudicial to the rights of the holders of one
class of Common Stock in favor of the other class of Common Stock; provided,
however, that in the case of an offer to purchase shares of Common Stock by the
Corporation made to all holders of Common Stock, the Corporation shall purchase
shares of Common Stock ratably in accordance with the number of shares of each
class of Common Stock tendered thereunder.
(vi) Rights Otherwise Identical. Except as expressly set forth herein,
the rights of the holders of Class A Common Stock and the rights of the holders
of Class B Common Stock shall be in all respects and for all purposes and in all
circumstances absolutely and completely identical and the Corporation shall not
in any other manner directly or indirectly take any other action or in any other
fashion agree to, facilitate, condone or support any transaction in which the
holders of the Class A Common Stock and the Class B Common Stock are subject to
discriminatory or unequal treatment.
Section 3. Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series. The Board is hereby authorized to provide by
resolution from time to time for the issuance of shares of Preferred Stock in
series and, by filing a certificate pursuant to the DGCL (hereinafter referred
to as a "Preferred Stock Designation"), to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, privileges, preferences and rights of the shares of each such series and
the qualifications, limitations and restrictions thereof. The authority of the
Board with respect to each series shall include, but not be limited to,
determination of the following:
(a) the designation of the series, which may be by distinguishing
number, letter or title;
(b) the number of shares of the series, which number the Board may
thereafter (except where otherwise provided in the Preferred Stock Designation)
increase or decrease (but not below the number of shares thereof then
outstanding);
(c) whether dividends, if any, shall be cumulative or noncumulative,
and, in the case of shares of any series having cumulative dividend rights, the
date or dates or method of determining the date or dates from which dividends on
the shares of such series shall be cumulative;
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(d) the rate of any dividends (or method of determining such
dividends) payable to the holders of the shares of such series, any conditions
upon which such dividends shall be paid and the date or dates or the method of
determining the date or dates upon which such dividends shall be payable;
(e) the price or prices (or method of determining such price or
prices) at which, the form of payment of such price or prices (which may be
cash, property or rights, including securities of the same or another
corporation or other entity) for which, the period or periods within which and
the terms and conditions upon which the shares of such series may be redeemed,
in whole or in part, at the option of the Corporation or at the option of the
holder or holders thereof or upon the happening of a specified event or events,
if any;
(f) the obligation, if any, of the Corporation to purchase or redeem
shares of such series pursuant to a sinking fund or otherwise and the price or
prices at which, the form of payment of such price or prices (which may be cash,
property or rights, including securities of the same or another corporation or
other entity) for which, the period or periods within which and the terms and
conditions upon which the shares of such series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(g) the amount payable out of the assets of the Corporation to the
holders of shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation;
(h) provisions, if any, for the conversion or exchange of the shares
of such series, at any time or times at the option of the holder or holders
thereof or at the option of the Corporation or upon the happening of a specified
event or events, into shares of any other class or classes or any other series
of the same or any other class or classes of stock, or any other security, of
the Corporation, or any other corporation or other entity, and the price or
prices or rate or rates of conversion or exchange and any adjustments applicable
thereto, and all other terms and conditions upon which such conversion or
exchange may be made;
(i) restrictions on the issuance of shares of the same series or of
any other class or series, if any; and
(j) the voting rights, if any, of the holders of shares of the series.
Section 4. Series A Junior Participating Preferred Stock. The Board
hereby authorizes the issuance of the Series A Junior Participating Preferred
Stock as follows:
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(a) Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 4,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
(b) Dividends and Distributions.
(i) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of shares of Class A
Common Stock and Class B Common Stock of the Corporation, and of any other
junior stock shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock in an
amount per share (rounded to the nearest cent) equal to the greater of (A) $1 or
(B) subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause (B)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
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(ii) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (i) of this subsection
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
(c) Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(ii) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock or by
law, the holders of shares of Series A Preferred Stock and the holders of shares
of Class B Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
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(iii) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
(d) Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 4(b) are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(A) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(B) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(C) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(D) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock or any shares of stock ranking on a parity
with the Series A Preferred Stock except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(ii) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (i) of
this Section 4(d), purchase or otherwise acquire such shares at such time and in
such manner.
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(e) Reacquired Shares. Any shares of Series A Preferred Stock
purchased or 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 shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
(f) Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock or (2) to the holders
of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock except
distributions made ratably on the Series A Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, other than the merger of Raytheon Company with
and into the Corporation, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case each share of Series A
Preferred Stock shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
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(h) No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
(i) Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's Preferred Stock.
(j) Amendment. The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock voting together
as a single class.
Section 5. General. The Common Stock shall be subject to the express
terms of the Preferred Stock and any series thereof. Except as otherwise
provided by law or by the resolution or resolutions adopted by the Board
designating the rights, powers and preferences of any series of Preferred Stock
the Common Stock shall have the exclusive right to vote for the election of
directors and for all other purposes, and holders of Preferred Stock shall not
be entitled to receive notice of any meeting of stockholders at which they are
not entitled to vote. The Corporation shall be entitled to treat the person in
whose name any share of its stock is registered as the owner thereof for all
purposes and shall not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not the
Corporation shall have notice thereof, except as expressly provided by
applicable law.
Article V.
Stockholder Action
Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
such holders and may not be effected by any consent in writing by such holders.
Except as otherwise required by law and subject to the rights of the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of stockholders of the
Corporation for any purpose or purposes may be called only by the Board pursuant
to a resolution stating the purpose or purposes thereof approved by a majority
of the total number of directors which the Corporation would have if there were
no vacancies (the "Whole Board") or by the Chairman of the Board and any power
of stockholders to call a special meeting is specifically denied. No business
other than that stated in the notice shall be transacted at any special meeting.
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Article VI.
Board of Directors
Section 1. Number, election and terms. The number of directors of the
Corporation shall be, except as otherwise fixed by or pursuant to the provisions
of Article IV relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional directors under specified circumstances, fixed
from time to time exclusively pursuant to a resolution adopted by a majority of
the Whole Board (but shall not be less than three). The directors, other than
those who may be elected by the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible, one class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
1998, another class to be originally elected for a term expiring at the annual
meeting of stockholders to be held in 1999, and another class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
2000, with each director to hold office until such person's successor is duly
elected and qualified. At each succeeding annual meeting of stockholders,
directors elected to succeed those directors whose terms then expire shall be
elected for a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until such
person's successor shall have been duly elected and qualified.
Section 2. Stockholder nomination of director candidates; Stockholder
Proposal of Business. Advance notice of stockholder nominations for the election
of directors and of the proposal of business by stockholders shall be given in
the manner provided in the By-Laws of the Corporation, as amended and in effect
from time to time.
Section 3. Newly created directorships and vacancies. Except as
otherwise provided for or fixed by or pursuant to the provisions of Article IV
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, (i) newly created directorships
resulting from any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum of the Board, and not by the stockholders and (ii) newly created
directorships resulting from any increase in the number of directors after the
adoption of a resolution by a majority of the Whole Board in accordance with
Section 1 of this Article VI shall be filled by the affirmative vote of the
holders of Common Stock, voting in accordance with the provisions of Section
2(a)(i) of Article IV regarding election of directors at the next succeeding
annual or special meeting of stockholders. Any director appointed in accordance
with clause (i) of the preceding sentence shall hold office until the next
annual or special meeting of stockholders and until such director's successor
shall have been duly elected and qualified. Any director elected in accordance
with clause (ii) of the preceding sentence shall hold office for the remainder
of the full term of the class of director in which the new directorship was
created and until such director's successor shall have been duly elected and
qualified. No decrease in the number of directors constituting the Board shall
shorten the term of any incumbent director.
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Section 4. Removal. Subject to the rights of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any director may
be removed from office only for cause by the affirmative vote of the holders of
the shares of Common Stock, voting together as a single class in the same manner
and with the same votes per share as provided in Section 2(a)(i) of Article IV
with respect to the election of directors (i.e. with the holders of Class A
Common Stock having 80.1% of the total voting power to remove directors and the
number of votes per share necessary to achieve such voting power determined by
the Board).
Article VII.
By-Laws
The By-Laws may be altered or repealed and new By-Laws may be adopted
(1) at any annual or special meeting of stockholders, by the affirmative vote of
the holders of the shares of Common Stock voting in accordance with Section
2(a)(ii) of Article IV; provided, however, that in the case of any such
stockholder action at a special meeting of stockholders, notice of the proposed
alteration, repeal or adoption of the new By-Law or By-Laws must be contained in
the notice of such special meeting, or (2) by the affirmative vote of a majority
of the Whole Board.
Article VIII.
Amendment of Certificate of Incorporation
The Corporation reserves the right at any time from time to time to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and, except as set forth in Article X all rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to this Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the right reserved in this Article.
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Article IX.
Corporate Action
In addition to any other considerations which the Board may lawfully
take into account, in determining whether to take or to refrain from taking
corporate action on any matter, including making or declining to make any
recommendation to the stockholders of the Corporation, the Board may in its
discretion consider the long-term as well as short-term best interests of the
Corporation (including the possibility that these interests may be best served
by the continued independence of the Corporation), taking into account, and
weighing as the directors deem appropriate, the effects of such action on
employees, suppliers and customers of the Corporation and its subsidiaries and
the effect upon communities in which offices or other facilities of the
Corporation are located, and any other factors the directors consider pertinent.
Article X.
Limited Liability; Indemnification
Section 1. Limited Liability of Directors. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the DGCL as the same exists or may hereafter be amended. Neither
the amendment nor repeal of Section 1 of this Article X shall eliminate or
reduce the effect of Section 1 of this Article X in respect of any matter
occurring, or any cause of action, suit or claim that, but for Section l of this
Article X would accrue or arise, prior to such amendment or repeal.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director or officer or in any other capacity while
serving as a director or officer shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, to the fullest
extent permitted by law, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgment, fines, amounts paid or
to be paid in settlement, and excise taxes or penalties arising under the
Employee Retirement Income Security Act of 1974, as in effect from time to time)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director or
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officer, and shall inure to the benefit of such person's heirs, executors and
administrators; provided, however, that, except as provided in paragraph (b) of
this Section, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board. The right to indemnification conferred in this Section shall be a
contract right and shall include the right to have the Corporation pay the
expenses incurred in defending any such proceeding in advance of its final
disposition; any advance payments to be paid by the Corporation within 20
calendar days after the receipt by the Corporation of a statement or statements
from the claimant requesting such advance or advances from time to time;
provided, however, that, if and to the extent the DGCL requires, the payment of
such expenses incurred by a director or officer in such person's capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise. The
Corporation may, to the extent authorized from time to time by the Board, grant
rights to indemnification, and rights to have the Corporation pay the expenses
incurred in defending any proceeding in advance of its final disposition, to any
employee or agent of the Corporation to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Section is not paid in full by the Corporation within 30 calendar days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to. recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board,
independent legal counsel, or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
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(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person (including, without limitation, any person other than an
officer or director of the Corporation) may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, By-Laws, agreement, vote
of stockholders or disinterested directors or otherwise. No repeal or
modification of this Article shall in any way diminish or adversely affect the
rights of any director or officer of the Corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
(d) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
(e) Severability. If any provision or provisions of this Article X
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(1) the validity, legality and enforceability of the remaining provisions of
this Article X (including, without limitation, each portion of any paragraph of
this Article X containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby, and (2) to the fullest
extent possible, the provisions of this Article X (including, without
limitation, each such portion of any paragraph of this Article X containing any
such provision held to be invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be duly executed this 11th day of February,
1998.
RAYTHEON COMPANY
By: /s/ Thomas D. Hyde
Thomas D. Hyde
Senior Vice President and
General Counsel