COMPOSITE COPY
OF THE
CERTIFICATE OF INCORPORATION
OF
FREEPORT-MCMORAN SULPHUR INC.
ARTICLE I
NAME
The name of this corporation is Freeport-McMoRan Sulphur Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the Corporation's registered office in the State of Delaware
and its registered agent at such address is:
The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
County of New Castle
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law (the "DGCL") .
ARTICLE IV
CAPITAL
1. AUTHORIZED STOCK. The Corporation shall be authorized to issue an
aggregate of 150,000,000 shares of capital stock, of which 100,000,000 shares
shall be Common Stock, $.01 par value per share (the "Common Stock"), and
50,000,000 shares shall be Preferred Stock, $.01 par value per share (the
"Preferred Stock").
2. PREFERRED STOCK. Preferred Stock may be issued from time to time in
one or more series. All shares of any one series of Preferred Stock shall be
identical except as to the dates of issue and the dates from which dividends on
shares of the series issued on different dates will cumulate if cumulative.
(a) Authority is hereby expressly granted to the Board of Directors
to authorize the issuance of one or more series of Preferred Stock, and to
fix by resolution or resolutions providing for the issuance of each such
series the voting powers, designations,
preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions of such series, to the
full extent now or hereafter permitted by law, including, without
limitation, the following:
(1) the number of shares of such series, which may subsequently
be increased, except as otherwise provided by the resolution or
resolutions of the Board of Directors providing for the issuance of
such series, or decreased, to a number not less than the number of
shares of such series then outstanding, by resolution or resolutions
of the Board of Directors, and the distinctive designation thereof;
(2) the dividend rights of such series, the preferences, if any,
over any other class or series of stock, or of any other class or
series of stock over such series, as to dividends, the extent, if any,
to which shares of such series will be entitled to participate in
dividends with shares of any other series or class of stock, whether
dividends on shares of such series will be fully, partially or
conditionally cumulative, or a combination thereof, and any
limitations, restrictions or conditions on the payment of such
dividends;
(3) the rights of such series, and the preferences, if any, over
any other class or series of stock, or of any other class or series of
stock over such series, in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation and the
extent, if any, to which shares of any such series will be entitled to
participate in such event with any other series or class of stock;
(4) the time or times during which, the price or prices at
which, and the terms and conditions on which the shares of such series
may be redeemed;
(5) the terms of any purchase, retirement or sinking funds that
may be provided for the shares of such series; and
(6) the terms and conditions, if any, upon which the shares of
such series will be convertible into or exchangeable for shares of any
other series, class or classes, or any other securities.
(b) The shares of Preferred Stock shall have no voting power or
voting rights with respect to any matter whatsoever, except as may be
otherwise required by law or may be provided in the resolution or
resolutions of the Board of Directors creating the series of Preferred
Stock of which such shares are a part.
(c) No holders of any series of Preferred Stock will be entitled to
receive any dividends thereon other than those specifically provided for by
the Certificate of Designation providing for the issuance of such series of
Preferred Stock, nor will any accumulated dividends on Preferred Stock bear
any interest.
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(d) In the event of any liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, the holders of Preferred
Stock of each series will be entitled to receive only such amount or
amounts as will have been fixed by the Certificate of Designation for the
issuance of such series.
ARTICLE V
INCORPORATOR
The name and address of the incorporator of the Corporation is:
Robert M. Wohleber
1615 Poydras Street
New Orleans, Louisiana 70112
ARTICLE VI
STOCKHOLDER ACTION
Action shall be taken by the stockholders only at an annual or special
meeting of stockholders and may not be effected by any written consent of such
holders.
ARTICLE VII
BOARD OF DIRECTORS
1. POWERS. All of the powers of the Corporation are hereby conferred
upon the Board of Directors of the Corporation, insofar as such powers may be
lawfully vested by this Certificate of Incorporation in the Board of Directors.
In furtherance and not in limitation of those powers, the Board of Directors
shall have the power to make, adopt, alter, amend and repeal from time to time
the Corporation's Bylaws, subject to the provisions of Article X, section 2.
2. NUMBER OF DIRECTORS. Subject to the restriction that the number of
directors shall not be less than the number required by the DGCL, the number of
directors may be fixed from time to time pursuant to the Corporation's Bylaws;
provided, however, that the number of directors shall not be reduced so as to
shorten the term of any director at the time in office.
3. CLASSIFICATION. The members of the Board of Directors, other than
those who may be elected by the holders of any one or more series of Preferred
Stock voting separately, shall be classified, with respect to the term during
which they shall hold office, into three classes, designated Class I, II and
III, as nearly equal in number as possible. Any increase or decrease in the
number of directors shall be apportioned by the Board of Directors so that all
classes of directors shall be as nearly equal in number as possible. At each
annual meeting of stockholders, directors chosen to succeed those whose terms
then expire 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 duly elected and qualified.
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4. VACANCIES. Subject to any requirements of law and the rights of any
class or series of Capital Stock having a preference over the Common Stock as to
dividends or upon liquidation, and except as provided in Article VII, section 6,
any vacancy on the Board of Directors (including any vacancy resulting from an
increase in the authorized number of directors or from a failure of the
stockholders to elect the full number of authorized directors) may,
notwithstanding any resulting absence of a quorum of directors, be filled only
by the Board of Directors, acting by vote of both (a) a majority of the
directors then in office and (b) a majority of all the Continuing Directors,
voting as a separate group, and any director so appointed shall serve until the
next stockholders' meeting held for the election of directors of the class to
which such director shall have been appointed and until his successor is duly
elected and qualified.
5. REMOVAL. Subject to Article VII, section 6, and notwithstanding any
other provisions of this Certificate of Incorporation or the Corporation's
Bylaws, any director or the entire Board of Directors may be removed at any
time, but only for cause involving fraud or a violation of the duty of loyalty
as determined by a final judgment of a court of competent jurisdiction, and only
by the affirmative vote of holders of not less than 80% of the Voting Stock,
voting together as a single class, at a stockholders' meeting called for such
purpose. At the same meeting in which the stockholders remove one or more
directors, the stockholders may elect one or more successors for the unexpired
term or terms of the director or directors removed. Except as set forth in this
Article VII, section 5, directors shall not be subject to removal.
6. DIRECTORS ELECTED BY PREFERRED STOCKHOLDERS. Notwithstanding anything
in this Certificate of Incorporation to the contrary, whenever the holders of
any one or more series of Preferred Stock shall have the right, voting
separately as a class, to elect one or more directors of the Corporation, the
provisions of this Certificate of Incorporation (as amended from time to time)
fixing the rights and preferences of such Preferred Stock shall govern with
respect to the nomination, election, term, removal, vacancies or other related
matters with respect to such directors.
ARTICLE VIII
CERTAIN BUSINESS COMBINATIONS
1. SUPERMAJORITY VOTE. In addition to any affirmative vote required by
law or this Certificate of Incorporation (notwithstanding the fact that a lesser
percentage may be specified by law or this Certificate of Incorporation) and
except as otherwise expressly provided in Article VIII, section 2:
(a) any merger, consolidation or share exchange of the Corporation or
any Subsidiary with an Interested Stockholder or with any other
corporation, whether or not itself an Interested Stockholder, which is, or
after such merger, consolidation or share exchange would be, an Affiliate
or Associate of an Interested Stockholder;
(b) any sale, lease, transfer, exchange, mortgage, pledge, loan,
advance or other similar disposition (in one or more series of
transactions), with or for the direct or indirect benefit of any Interested
Stockholder or any Affiliate or Associate thereof, of any assets of the
Corporation or any Subsidiary having, measured at the time the transaction
or
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transactions are approved by the Board of Directors, an aggregate book
value or Market Value as of the end of the Corporation's most recently
ended fiscal quarter of 5% or more of the lesser of (i) the total Market
Value of the outstanding stock of the Corporation or (ii) the Corporation's
net worth as of the end of its most recently ended fiscal quarter;
(c) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation or any Subsidiary;
(d) the issuance or transfer by the Corporation or any Subsidiary, in
one transaction or in a series of transactions in any twelve-month period,
of any Equity Securities of the Corporation or any Subsidiary that have an
aggregate Market Value of $1 million or more to any Interested Stockholder
or any Affiliate or Associate thereof, except pursuant to the exercise of
warrants or rights to purchase securities offered pro rata to all holders
of the Corporation's Voting Stock or by any other method affording
substantially proportionate treatment to the holders of Voting Stock;
(e) any reclassification or recapitalization of securities of the
Corporation, including any reverse stock split, any merger, consolidation
or share exchange of the Corporation with any Subsidiary, or any other
transaction (whether or not involving an Interested Stockholder) that has
the effect, directly or indirectly, in one transaction or a series of
transactions, of increasing by 5% or more the voting power (regardless of
when exercisable) or the proportionate amount of the outstanding shares of
any class or series of Equity Securities of the Corporation or any
Subsidiary directly or indirectly Beneficially Owned by any Interested
Stockholder or any Affiliate or Associate thereof;
(f) any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by the
Corporation or any Subsidiary to an Interested Stockholder or any Affiliate
or Associate thereof, except proportionately as a stockholder; or
(g) any agreement, contract or other arrangement providing directly
or indirectly for any of the foregoing;
shall require (i) the approval by a majority of both the directors then in
office and a majority of the Continuing Directors, voting as a separate group,
and (ii) the affirmative vote of both (A) holders of not less than 80% of the
Voting Stock, voting together as a single class, and (B) holders of not less
than 75% of the Voting Stock (other than Voting Stock Beneficially Owned by the
Interested Stockholder who is, or whose Affiliate or Associate is, a party to
the proposed Business Combination) voting as a separate class. In addition, a
proxy or information statement describing the proposed Business Combination and
complying with the requirements of the Exchange Act and the rules and
regulations promulgated thereunder shall be mailed to all stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (regardless of whether such proxy or information statement is
required pursuant to such act).
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2. EXCEPTIONS TO SUPERMAJORITY VOTE REQUIREMENTS. If all conditions
specified in either of paragraphs (a) or (b) below are met, the provisions of
Article VIII, section 1, shall not be applicable to any Business Combination,
and such Business Combination shall require only such vote, if any, as may be
required by any other provisions of this Certificate of Incorporation or the
Corporation's Bylaws, as well as such vote, if any, of the holders of any class
or series of stock of the Corporation as may be required by law, and shall
further require only the delivery of such proxy or information statements, if
any, as may be required by law:
(a) The Business Combination shall have been approved prior to the
time such Interested Stockholder became an Interested Stockholder by a
majority of the directors then in office and a majority of the Continuing
Directors, voting as a separate group; or
(b) All of the following five conditions have been met:
(1) The aggregate amount of the cash and the Market Value as of
the Valuation Date of consideration other than cash to be received per
share by holders of Common Stock in such Business Combination is at
least equal to the highest of the following:
(A) the highest per share price, including any brokerage
commissions, transfer taxes and soliciting dealer's fees, paid by
the Interested Stockholder for any shares of Common Stock
acquired by it within the two-year period immediately prior to
the Announcement Date or in the transaction in which it became an
Interested Stockholder, whichever is higher;
(B) the Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is
higher; or
(C) the price per share equal to the Market Value per share
of Common Stock determined pursuant to clause (B) immediately
preceding, multiplied by a fraction, the numerator of which is
the highest per share price, including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the
Interested Stockholder for any shares of Common Stock acquired by
it within the two-year period immediately prior to the
Announcement Date, and the denominator of which is the Market
Value per share of Common Stock on the first date in such two-
year period on which the Interested Stockholder acquired any
shares of Common Stock.
(2) The aggregate amount of the cash and the Market Value as of
the Valuation Date of consideration other than cash to be received per
share by holders of shares of any class or series of outstanding stock
other than Common Stock is at least equal to the highest of the
following, whether or not the Interested Stockholder has previously
acquired any shares of any such class or series of stock:
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(A) the highest per share price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees, paid by
the Interested Stockholder for any shares of such class or series
of stock acquired by it within the two-year period immediately
prior to the Announcement Date or in the transaction in which it
became an Interested Stockholder, whichever is higher;
(B) the highest preferential amount per share to which the
holders of shares of such class or series of stock are entitled
in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(C) the Market Value per share of such class or series of
stock on the Announcement Date or on the Determination Date,
whichever is higher; or
(D) the price per share equal to the Market Value per share
of such class or series of stock, determined pursuant to clause
(C) immediately preceding, multiplied by a fraction, the
numerator of which is the highest per share price, including any
brokerage commissions, transfer taxes and soliciting dealers'
fees, paid by the Interested Stockholder for any shares of any
such class or series of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement Date, and
the denominator of which is the Market Value per share of the
same class or series of voting stock on the first day in such
two-year period on which the Interested Stockholder acquired any
shares or the same class or series of Voting Stock.
(3) The holders of any class or series of the Corporation's
outstanding stock shall receive the consideration in cash or in the
same form as the Interested Stockholder has previously paid for shares
of the same class or series of stock. If the Interested Stockholder
has paid for shares of any class of stock with varying forms of
consideration, the form of consideration for such class of stock shall
be either in cash or the form used to acquire the largest number of
shares of such class or series of stock previously acquired by it. In
making any price calculation under paragraph (b) of Article VIII,
section 2, appropriate adjustments shall be made to reflect any
reclassification or stock split (including any reverse stock split),
stock dividend, recapitalization, reorganization or any similar
transaction which has the effect or increasing or reducing the number
of outstanding shares of stock.
(4) After the Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
(A) there shall have been no failure to declare and pay at
the regular date therefor any full periodic dividends, whether or
not cumulative, on any outstanding Preferred Stock of the
Corporation or other Capital Stock
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entitled to a preference over the Common Stock as to dividends
or upon liquidation;
(B) there shall have been no reduction in the annual rate
of dividends paid on the Common Stock, except as necessary to
reflect any subdivision of the Common Stock, and no failure to
increase the annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or other similar transaction
which has the effect of reducing the number of outstanding shares
of Common Stock; and
(C) the Interested Stockholder did not become the
Beneficial Owner of any additional shares of stock of the
Corporation except as part of the transaction that resulted in
such Interested Stockholder becoming an Interested Stockholder or
by virtue of proportionate stock splits or stock dividends.
The provisions of clauses (A) and (B) immediately preceding shall not
apply if no Interested Stockholder or any Affiliate or Associate
thereof voted as a director of the Corporation in favor of foregoing
or reducing dividends in the manner specified in such clauses and the
Interested Stockholder, within ten days after any such act or failure
to act that resulted in such loss or diminution of dividends, notifies
the Board of Directors of the Corporation in writing that the
Interested Stockholder disapproves thereof and requests in good faith
that the Board of Directors rectify such act or failure to act.
(5) After the Interested Stockholder has become an Interested
Stockholder, the Interested Stockholder shall not have received the
benefit, directly or indirectly, except proportionately as a
stockholder, of any loans, advances, guarantees, pledges or other
financial assistance provided by the Corporation or any Subsidiary,
whether in anticipation of or in connection with such Business
Combination or otherwise.
3. DETERMINATIONS. For the purpose of this Article VIII, so long as
Continuing Directors constitute at least a majority of the entire Board of
Directors, the Board of Directors shall have the power to make a good faith
determination, on the basis of information known to them, of: (a) the number of
shares of Capital Stock of which any person or entity is the Beneficial Owner,
(b) whether any person or entity is an Interested Stockholder or an Affiliate or
Associate thereof, (c) whether any person or entity has an agreement,
arrangement or understanding with another as to the matters referred to in the
definition of Beneficial Owner herein, (d) whether any transaction constitutes a
Business Combination (including the power to determine in good faith the book
value or market value of the assets of the Corporation or any Subsidiary) or is
a transaction with or for the benefit of an Interested Stockholder, (e) whether
any of the events referred to in paragraph (b)(4) of Article VIII, section 2,
have occurred, and (f) such other matters with respect to which a determination
is required under this Article VIII. All such good faith determinations by the
Board of Directors shall
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be conclusive and binding on the Corporation and its stockholders for all
purposes of this Article VIII.
ARTICLE IX
LIMITATION OF LIABILITY AND INDEMNIFICATION
1. LIMITATION OF LIABILITY. No director shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except (a) for breach of the director's duty of
loyalty to the Corporation or its stockholders, (b) for acts or omissions not in
good faith or that involve intentional misconduct of a knowing violation of law,
(c) pursuant to Section 174 of the DGCL, or (d) for any transaction from which
such director derived an improper personal benefit.
2. AUTHORIZATION OF FURTHER ACTIONS. The Board of Directors may (a)
cause the Corporation to enter into contracts with directors providing for the
limitation of liability set forth in this Article IX to the fullest extent
permitted by law, (b) adopt Bylaws or resolutions, or cause the Corporation to
enter into contracts, providing for indemnification of directors and officers of
the Corporation and other persons (including without limitation directors and
officers of the Corporation's direct and indirect subsidiaries) to the fullest
extent permitted by law, and (c) cause the Corporation to exercise the powers
set forth in Section 145(g) of the DGCL, notwithstanding that some or all of the
members of the Board of Directors acting with respect to the foregoing may be
parties to such contracts or beneficiaries thereof.
3. SUBSIDIARIES. The Board of Directors may cause the Corporation to
approve for its direct and indirect subsidiaries limitation of liability and
indemnification provisions comparable to the foregoing.
4. AMENDMENTS. Any amendment or repeal of this Article IX shall not
adversely affect any elimination or limitation of liability of a director of the
Corporation under this Article IX with respect to any action or inaction
occurring prior to the time of such amendment or repeal. No amendment or repeal
of any Bylaw or resolution relating to indemnification shall adversely affect
any person's entitlement to indemnification whose claim thereto results from
conduct occurring prior to the date of such amendment or repeal.
ARTICLE X
AMENDMENTS; DEFINITIONS
1. AMENDMENTS TO CERTIFICATE OF INCORPORATION. Articles VII, VIII, IX
and X of this Certificate of Incorporation shall not be amended in any manner
(whether by modification or repeal of an existing Article or Articles or by
addition of a new Article or Articles), except upon resolutions adopted by the
affirmative vote of holders of not less than 80% of the Voting Stock, voting
together as a single class; provided, however, that if such resolutions shall
first be adopted by both a majority of the directors then in office and a
majority of the Continuing Directors, voting as a separate group, then such
resolutions shall be deemed adopted by the stockholders upon the affirmative
vote of holders of not less than a majority of the Voting Stock, voting as a
single class.
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2. AMENDMENTS TO BYLAWS. The Corporation's Bylaws may be altered,
amended or repealed, or new Bylaws may be adopted by:
(a) the stockholders, but only upon the affirmative vote of holders
of not less than 80% of the Voting Stock, voting together as a single
class; or
(b) the Board of Directors, but only upon the affirmative vote of
both (i) a majority of the directors then in office and (ii) a majority of
the Continuing Directors, voting as a separate group.
3. DEFINITIONS. For purposes of this Certificate of Incorporation:
(a) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
promulgated under the Exchange Act (the term "registrant" in such Rule
12b-2 meaning in this case the Corporation); provided, however, that in no
event shall the Corporation, any of its Subsidiaries, any Employee Benefit
Plan or any of the other persons or entities exempted from the definition
of Interested Stockholder in this Article X, section 3, be deemed to be an
Affiliate or Associate of any Interested Stockholder.
(b) "Announcement Date" means the first general public announcement
of the proposal or intention to make a proposal to consummate a Business
Combination or its first communication generally to stockholders of the
Corporation, whichever is earlier.
(c) A person shall be deemed to be the "Beneficial Owner" of and be
deemed to "Beneficially Own" any shares of capital stock (regardless
whether owned of record):
(1) Which that person or any of its Affiliates or Associates,
directly or indirectly, owns beneficially; or
(2) Which such person or any of its Affiliates or Associates has
(A) the right to acquire (whether exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (B) the right to vote
pursuant to any agreement, arrangement or understanding; or
(3) Which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
voting capital stock of the Corporation or any Subsidiaries.
(d) "Business Combination" means any transaction referred to in any
one or more of the clauses (a) through (g) of Article VII, section 1.
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(e) "Capital Stock" means any Common Stock, Preferred Stock or other
shares of capital stock of the Corporation.
(f) "Continuing Director" means (i) any member of the Board of
Directors who is not an Interested Stockholder or an Affiliate or Associate
thereof, and who was a director of the Corporation prior to the time the
Interested Stockholder became an Interested Stockholder, and (ii) any other
member of the Board of Directors who is not an Interested Stockholder or an
Affiliate or Associate thereof, and was recommended or elected by a
majority of the Continuing Directors at a meeting at which a quorum
consisting of a majority of the Continuing Directors was present, provided
that, in the absence of an Interested Stockholder, any reference to
"Continuing Directors" shall mean all the directors then in office.
(g) "Determination Date" means the date on which an Interested
Stockholder first became an Interested Stockholder.
(h) "Employee Benefit Plan" means any option, bonus, profit sharing,
employee stock ownership, dividend reinvestment, savings or similar plan of
the Corporation or any Subsidiary, or any trust related thereto.
(i) "Equity Security" means (1) any stock or similar security,
certificate of interest, or participation in any profit-sharing agreement,
voting trust certificate, or certificate of deposit for the foregoing, (2)
any security convertible, with or without consideration, into an equity
security, or any warrant or other security carrying any right to subscribe
to or purchase an equity security, or (3) any put, call, straddle, or other
option, right or privilege to acquire an equity security from or to sell an
equity security to another without being bound to do so.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Interested Stockholder" means any person (other than the
Corporation, any Subsidiary, any Employee Benefit Plan, any fiduciary with
respect to an Employee Benefit Plan acting in such capacity, any person
owning Capital Stock as of the date of filing this Certificate of
Incorporation, or any Affiliate or Associate of any of the foregoing) who
(1) is the Beneficial Owner, directly or indirectly, of shares of Capital
Stock (including two or more classes or series voting together as a single
class) representing 15% or more of the Voting Stock or (2) is an Affiliate
or Associate of the Corporation and at any time within the two-year period
immediately prior to the date in question was the Beneficial Owner,
directly or indirectly, of shares of Capital Stock (including two or more
classes or series voting together as a single class) representing 15% or
more of the Voting Stock. For the purpose of determining whether a person
is an Interested Stockholder, the number of shares of Voting Stock deemed
to be outstanding shall include shares deemed owned by the person through
application of paragraph (c) of Article IX, section 3 but shall not include
any other shares of Voting Stock that may be issuable pursuant to any
agreement, arrangement, or understanding or upon exercise of conversion
rights, warrants or options, or otherwise.
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(l) "Market Value" means:
(1) in the case of stock, the highest closing sale price during
the 30 calendar day period immediately preceding the date in question
of a share of such stock on the New York Stock Exchange, or, if such
stock is not listed on the New York Stock Exchange, then on any
national securities exchange on which the Common Stock is listed, or
if neither listed on a national securities exchange nor quoted on the
Nasdaq National Market, the highest closing sales price during the 30
calendar day period immediately preceding the date in question, the
closing bid quotation with respect to a share of such stock during the
30 calendar day period preceding the date in question as quoted by
Nasdaq or another generally recognized reporting system, or if no such
quotation is available, the fair market value on the date in question
of a share of such stock as determined by a majority of the Continuing
Directors at a meeting of the Board of Directors at which a quorum
consisting of at least a majority of the then Continuing Directors is
present; and
(2) in the case of property other than cash or stock, the fair
market value or such property on the date in question as determined by
a majority of the Continuing Directors at a meeting of the Board of
Directors at which a quorum consisting of at least a majority of the
then Continuing Directors is present.
(m) A "person" means any individual, firm, corporation or other
entity, or a group of persons acting or agreeing to act together in the
manner set forth in Rule 13d-5 under the Exchange Act.
(n) "Subsidiary" means any corporation, partnership or other entity
of which the Corporation, directly or indirectly, owns voting stock or
similar interests having a majority of the votes entitled to be cast.
(o) "Valuation Date" means:
(1) for a Business Combination voted upon by stockholders, the
later of the day prior to the date of the stockholders' vote or the
date 20 business days prior to the consummation of the Business
Combination; and
(2) for a Business Combination not voted upon by stockholders,
the date of the consummation of the Business Combination.
(p) "Voting Stock" means the outstanding shares of Capital Stock
entitled to vote generally in an election of directors.
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