Exhibit No. 3(a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MARRIOTT INTERNATIONAL, INC.
Marriott International, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The present name of the Corporation is "Marriott International,
Inc." The name under which the Corporation was originally incorporated is
"Marriott Hotel Productions, Inc." The original Certificate of Incorporation
was filed with the Secretary of State of the State of Delaware on July 2, 1971.
2. This Amended and Restated Certificate of Incorpation has been duly
adopted and proposed to the stockholders of the Corporation by the Board of
Directors of the Corporation, and has been approved and adopted by the
stockholders of the Corporation, in accordance with Sections 242 and 245 of
the General Corpation Law of the State of Delaware.
3. Pursuant to Sections 242 and 245 of the General Corporation Law of
the State of Delaware, this Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the Certificate
of Incorporation of the Corporation.
4. The text of the Certificate of Incorporation as heretofore amended
is hereby restated and further amended to read in its entirety as hereinafter
set forth:
ARTICLE 1
NAME
The name of the Corporation is Sodexho Marriott Services, Inc.
ARTICLE 2
REGISTERED OFFICE
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, Delaware 19801. The name of the
Corporation's registered agent at such address is The Corporation Trust
Company.
ARTICLE 3
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.
ARTICLE 4
Capitalization
The total number of shares of stock which the Corporation shall have
authority to issue is 301,000,000, consisting of 1,000,000 shares of
Preferred Stock, without par value (hereinafter referred to as "Preferred
Stock"), and 300,000,000 shares of Common Stock, par value $1.00 per share
(hereinafter referred to as "Common Stock"). Of the Preferred Stock shares,
300,000 shall be designated as Series A Junior Participating Preferred
Stock, without par value, having the designations, powers, preferences and
rights, and subject to the qualifications, limitations and restrictions, set
forth in Appendix A hereto.
Effective as of the date of filing of this Certificate of Incorporation
(the "Effective Time"), each four issued and outstanding shares of Common
Stock shall be combined into one share of validly issued, fully paid and
nonassessable Common Stock. The number of authorized shares, the number of
shares of treasury stock and the par value of the Common Stock shall not be
affected by the foregoing combination of shares. Each stock certificate that
prior to the Effective Time represented shares of Common Stock shall,
following the Effective Time, represent the number of shares of Common Stock
into which the shares of Common Stock represented by such certificate shall
be combined. The Corporation shall not issue fractional shares or scrip as a
result of the combination of shares, but shall arrange for the disposition of
fractional shares on behalf of those record holders of Common Stock at the
Effective Time who would otherwise be entitled to fractional shares as a
result of the combination of shares.
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to provide for the issuance of
shares of Preferred Stock in series and, by filing a certificate pursuant to
the applicable law of the State of Delaware (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 designations,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The authority of the
Board of Directors with respect to each series shall include, but not be
limited to, determination of the following:
(1) The designation of the series, which may be by distinguishing
number, letter or title.
(2) The number of shares of the series, which number the Board of
Directors may thereafter (except where otherwise provided in the
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Preferred Stock Designation) increase or decrease (but not below the
number of shares thereof then outstanding).
(3) The amounts payable on, and the preferences, if any, of shares of
the series in respect of dividends, and whether such dividends, if any,
shall be cumulative or noncumulative.
(4) Dates at which dividends, if any, shall be payable.
(5) The redemption rights and price or prices, if any, for shares of
series.
(6) The terms and amount of any sinking fund provided for the purchase
or redemption of shares of the series.
(7) The amounts payable on, and the preferences, if any, of shares of
the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation.
(8) Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series, or any other security,
of the Corporation or any other corporation, and, if so, the specification
of such other class or series of such other security, the conversion or
exchange price or prices or rate or rates, any adjustments thereof, the
date or dates at which such shares shall be convertible or exchangeable and
all other terms and conditions upon which such conversion of exchange may
be made.
(9) Restrictions on the issuance of shares of the same series or of any
other class or series.
(10) The voting rights, if any, of the holders of shares of the series.
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. Except as may be provided in this Certificate
of Incorporation or in a Preferred Stock Designation or by applicable law,
the holders of shares of Common Stock shall be entitled to one vote for each
such share upon all questions presented to the stockholders, 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 holders of shares of Common Stock shall at all times, except as
otherwise provided in this Certificate of Incorporation as required by law,
vote as one class, together with the holders of any other class or series of
stock of the Corporation accorded such general voting rights.
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
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on the part of any person, whether or not the Corporation shall have notice
thereof, except as expressly provided by applicable law.
ARTICLE 5
BY-LAWS
In furtherance of, and not in limitation of, the powers conferred by law,
the Board of Directors is expressly authorized and empowered:
(1) to adopt, amend or repeal the Bylaws of the Corporation; provided,
that the Bylaws adopted by the Board of Directors under the powers hereby
conferred may be amended or repealed by the Board of Directors or by the
stockholders having voting power with respect thereto; and
(2) from time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the Corporation, or any of them, shall be open to
inspection of stockholders; and, except as so determined or as expressly
provided in this Certificate of Incorporation or in any Preferred Stock
Designation, no stockholder shall have any right to inspect any account,
book or document of the Corporation other than such rights as may be
conferred by applicable law.
The Corporation may in its Bylaws confer powers upon the Board of Directors
in addition to the foregoing and in addition to the powers and authorities
expressly conferred upon the Board of Directors by applicable law.
ARTICLE 6
BOARD OF DIRECTORS
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, to elect additional directors under specified circumstances,
the number of directors of the Corporation shall be fixed in such manner as
prescribed by the Bylaws of the Corporation and may be increased or decreased
from time to time in such manner as prescribed by the Bylaws.
Unless and except to the extent that the Bylaws of the Corporation shall
so require, the election of directors of the Corporation need not be by
written ballot.
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ARTICLE 7
RESTRICTIONS ON TRANSFER
(1) Restrictions on Transfer. (a) Except as provided in Section 6 of
this Article 7, during the Restricted Period no Transfer of any Equity
Securities shall be made by any Person if such Transfer would result in any
Person or Persons acting pursuant to a plan (or a series of related
transactions) having a Fifty Percent or Greater Interest. Except as provided
in Section 6 of this Article 7, any attempted or purported Transfer of shares
of Equity Securities during the Restricted Period that, if effective, would
result in any Person or Persons acting pursuant to a plan (or a series of
related transactions) having a Fifty Percent or Greater Interest shall be
void ab initio, and the intended transferee shall acquire no rights or
interest in such shares of Equity Securities.
(b) Except as otherwise provided in this Certificate of Incorporation,
the Equity Securities shall be freely transferable.
(2) Remedies for Breach. If the Board of Directors of the Corporation
shall determine in good faith that a Person has attempted to acquire, may
acquire or intends to acquire Beneficial Ownership of any shares of Equity
Securities or any interest therein in a Transfer that is or would be void
pursuant to Section 1(a) of this Article 7, the Board of Directors shall be
empowered to take any action it deems advisable to refuse to give effect to
or to prevent such purported Transfer, including, but not limited to,
refusing to give effect to such attempted or purported Transfer on the books
of the Corporation, demanding the repayment of any distributions received in
respect to shares of Equity Securities acquired in violation of Section 1(a)
of this Article 7 or instituting proceedings to enjoin or rescind such
attempted or purported Transfer.
(3) Notice of Restricted Transfer. Any Person who acquires or attempts
to acquire Equity Securities in a Transfer which may result in a violation of
Section 1(a) of this Article 7 shall immediately give written notice thereof
to the Corporation and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect,
if any, of such purported Transfer or attempted Transfer on the Tax Free
Status of the Distribution. Failure to give such notice shall not otherwise
limit the rights and remedies of the Board of Directors provided herein in
any way.
(4) Remedies Not Limited. Nothing contained in this Article 7 shall
limit the authority of the Board of Directors to take such other action as it
deems necessary or advisable to protect the Tax Free Status of the
Distribution.
(5) Ambiguity. In the case of any ambiguity in the application of any of
the provisions of this Article 7, including any definition contained in
Section 10 of this Article 7, the Board of Directors shall have the power to
determine the application of the provisions of this Article 7 with respect to
any situation based upon its reasonable belief, understanding or knowledge
of the circumstances.
(6) Exceptions. Notwithstanding any other provision of this Article 7,
the restrictions contained in Section 1(a) of this Article 7 shall not apply
to any
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Transfer of any Equity Securities if there is provided to the Board of
Directors a ruling from the Internal Revenue Service satisfactory to the
Board of Directors in its reasonable discretion, or an opinion of counsel
satisfactory to each of the Board of Directors and New Marriott in its
reasonable discretion, to the effect that such Transfer will not adversely
affect the Tax Free Status of the Distribution. In determining the effect, if
any, of a proposed Transfer on the Tax Free Status of the Distribution, the
Board of Directors may require such representations and undertakings from
such Persons and may impose such other conditions on the effectiveness of the
Transfer as the Board deems necessary in its reasonable discretion.
(7) Severability. If any provision of this Article 7 or any application
of any such provision is determined in a final and nonappealable judgment of
a court of competent jurisdiction to be void, invalid or unenforceable, the
validity of the remaining provisions shall not be affected and other
applications of the provision so determined to be void, invalid or
unenforceable shall be affected only to the extent necessary to comply with
the determination of such court.
(8) New York Stock Exchange Transactions. Nothing in this Article 7-
shall preclude the settlement of any transaction entered into through the
facilities of the New York Stock Exchange, Inc.
(9) Amendment. During the Restricted Period, the provisions set forth in
this Article 7 may not be amended, altered, changed or repealed in any
respect, and no other provision may be adopted, amended, altered, changed or
repealed which would have the effect or modifying or permitting the
circumvention of the provisions set forth in this Article 7, unless such
action is (i) proposed to the stockholders of the Corporation with the
approval of not less than two-thirds (66 2/3%) of the total number of
directors of the Corporation and (ii) approved by the affirmative vote of the
holders of not less than two-thirds (66 2/3%) of the total voting power of
all outstanding securities of the Corporation then entitled to vote generally
in the election of directors, voting together as a single class.
(10) Definitions. For purposes of this Article 7, the following terms
shall have the following meanings:
"Beneficial Ownership" means, with respect to any Person, ownership of
Equity Securities equal to the sum (without duplication) of (i) the amount of
Equity Securities directly owned by such Person, (ii) the amount of Equity
Securities held by all Persons related to such Person (within the meaning of
Sections 267(b) or 707(b)(1) of the Code) and (iii) the amount of Equity
Securities which are attributable to such Person taking into account
constructive ownership rules of Section 318(a)(2) of the Code, as modified by
Section 355(e)(4)(c)(ii) of the Code. The terms "Beneficial Owner",
"Beneficially Own", "Beneficially Owns" and "Beneficially Owned" shall have
correlative meanings.
"Code" means the Internal Revenue Code of 1986, as amended.
"Distribution" means the distribution of 100% of the capital stock of
New Marriott by the Corporation to the Corporation's stockholders pursuant to
the
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Distribution Agreement dated as of September 30, 1997, as amended, between
the Corporation and New Marriott.
"Equity Securities" means any stock of the Corporation or other equity
securities treated as stock for tax purposes, or options, warrants, rights,
convertible debt, or any other instrument or security that affords any Person
the right, whether conditional or otherwise, to acquire stock of the
Corporation.
"Fifty Percent or Greater Interest" means Beneficial Ownership of 50% or
more (by value or by voting power) of the Equity Securities of the
Corporation.
"Governmental Entity" means any court, agency, authority, board, bureau,
commission, department, regulatory or administrative body, office or
instrumentality of any nature whatsoever of any governmental or
quasi-governmental unit (including the New York Stock Exchange or any other
national stock exchange), whether federal, state, parish, county, district,
municipality, city, political subdivision or otherwise, domestic or foreign,
or an other entity exercising executive, legislative, judicial regulatory or
administrative functions of or pertaining to government, whether now or
hereafter in effect.
"Person" means an individual, corporation, limited liability company,
partnership, estate, trust, association, private foundation within the
meaning of Section 509(a) of the Code, joint stock company or other entity or
organization, including any Governmental Entity or authority.
"New Marriott" means New Marriott MI, Inc. (to be renamed Marriott
International, Inc. upon the consummation of the Distribution).
"Restricted Period" means the period ending on March 27, 2001.
"Tax Free Status" shall mean the qualification of the Distribution (i) as
a transaction described in Section 368(a)(1)(D) and Section 355(a)(1) of the
Code, (ii) as a transaction in which the stock distributed thereby is
qualified property for purposes of Section 355(c)(2) of the Code, and (iii)
as a transaction in which the Corporation recognizes no income or gain other
than intercompany items or excess loss accounts taken into account pursuant
to the Treasury Regulations promulgated pursuant to Section 1502 of the Code.
"Transfer" means any sale, transfer, gift, assignment, devise or other
disposition of a share of Equity Securities, or any interest therein
(including the granting of any option (including, but not limited to, an
option to acquire an option or any series of such options)), whether
voluntary or involuntary, whether of record or of Beneficial Ownership, and
whether by operation of law or otherwise (including, but not limited to, any
transfer of an interest in other entities which results in a change in the
Beneficial Ownership of shares of Equity Securities). The terms "Transfers"
and "Transferred" shall have correlative meanings.
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ARTICLE 8
INDEMNIFICATION
Each person who was or is a party or is threatened to be made a party to,
or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted from time to time by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be amended (but, if
permitted by applicable law, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment) or any other applicable laws as presently or
hereafter in effect. The Corporation may, by action of the Board of
Directors, provide indemnification to employees and agents (other than a
director or officer) of the Corporation, to directors, officers, employees or
agents of any subsidiary of the Corporation, and to each person serving at
the request of the Corporation or any of its subsidiaries as a director,
officer, partner, member, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, with the same scope and effect as the foregoing indemnification
of directors and officers of the Corporation. The Corporation shall be
required to indemnify any 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 of Directors or is a Proceeding
to enforce such person's claim to indemnification pursuant to the rights
granted by this Certificate of Incorporation or otherwise by the Corporation.
Without limiting the generality or the effect of the foregoing, the
Corporation may enter into one or more agreements with any person which
provide for indemnification greater or different than that provided in this
Article 8. Any amendment or repeal of this Article 8 shall not adversely
affect any right or protection existing hereunder in respect of any act or
omission occurring prior to such amendment or repeal.
ARTICLE 9
DIRECTORS' LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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 General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. Any amendment or repeal of
this Article 9 shall not adversely affect any right or protection of a
director of the Corporation existing hereunder in respect of any act or
omission occurring prior to such amendment or repeal.
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If the General Corporation Law of the State of Delaware shall be amended
to authorize corporate action further eliminating or limiting the liability
of directors, then a director of the Corporation, in addition to the
circumstances in which such director is not liable immediately prior to such
amendment, shall be free of liability to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended.
ARTICLE 10
AMENDMENTS
Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time and from time
to time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation or a Preferred Stock Designation, 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
herein or by applicable law, and 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 10; provided that (i) any amendment or repeal of
Article 8 or Article 9 of this Certificate of Incorporation shall not
adversely affect any right or protection existing thereunder in respect of
any act or omission occurring prior to such amendment or repeal; and (ii) no
Preferred Stock Designation shall be amended after the issuance of any shares
of the series of Preferred Stock created thereby, except in accordance with
the terms of such Preferred Stock Designation and the requirements of
applicable law.
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IN WITNESS WHEREOF, Marriott International, Inc. has caused this Amended
and Restated Certificate of Incorporation to be signed by its_________________
and attested to by its Secretary as of March 27, 1998.
MARRIOTT INTERNATIONAL, INC.
By:
-----------------------------
Name:
Title:
ATTEST:
------------------------------
Name: W. David Mann
Title: Secretary
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Appendix A
[insert Certificate of Designations for
Series A Junior Participating Preferred Stock]
[file: 18770/004/CORP.DOC/app.a]
Appendix A
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" and the number
of shares constituting such series shall be 300,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
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 last 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 Junior
Participating Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10 or (b) subject to the provision for
adjustment hereinafter set forth, 1000 times the aggregate per share amount
of all cash dividends, and 1000 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, par value $1 per share, of the
Corporation (the "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 Junior Participating
Preferred Stock. In the event the Corporation shall at any time after
September 27, 1993 (the "Rights Declaration Date") (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into
a smaller number of shares, then in each such case the amount to which
holders of shares of Series A Junior Participating 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.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of
Series A Junior Participating Preferred Stock, 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 Junior Participating 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 Junior Participating 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 Junior
Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30
days prior to the date fixed for the payment thereof.
SECTION 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the
holder thereof to 1000 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
Common Stock, or (iii) combine the outstanding Common Stock in a smaller
number of shares, then in each such case the number of votes per share to
which holders of shares of Series A Junior Participating 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.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall
mark the beginning of a period (herein called a "default period") which
shall extend until such time when all accrued and unpaid dividends for
all previous quarterly dividend periods and for the current quarterly
dividend period on all shares of Series A Junior Participating Preferred
Stock then outstanding shall have been declared and paid or set apart
for payment. During each default period, all holders of Preferred Stock
(including
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holders of the Series A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall have the right
to elect two (2) Directors.
(ii) During any default period, such voting rights of the
holders of Series A Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of
this Section 3(C) or at any annual meeting of stockholders, and thereafter
at annual meetings of stockholders, provided that neither such voting
right nor the right of the holders of any other series of Preferred Stock,
if any, to increase, in certain cases, the authorized number of Directors
shall be exercised unless the holders of one-third in number of shares of
Preferred Stock outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not affect the
exercise by the holders of Preferred Stock of such voting right. At any
meeting at which the holders of Preferred Stock shall exercise such voting
right initially during an existing default period, they shall have the
right, voting as a class, to elect Directors to fill such vacancies, if
any, in the Board of Directors as may then exist up to two (2) Directors
or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting
does not amount to the required number, the holders of the Preferred Stock
shall have the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required number.
After the holders of the Preferred Stock shall have exercised their right
to elect Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior to or
pari passu with the Series A Junior Participating Preferred
Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called by the President,
a Vice President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this paragraph (c)(iii) shall be given to
each holder of record of Preferred Stock by mailing a copy of such notice
to him at his last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request or in default
of the calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding.
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Notwithstanding the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of
the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of Directors until
the holders of Preferred Stock shall have exercised their right to
elect two (2) Directors voting as a class, after the exercise of which
right (x) the directors so elected by the holders of Preferred Stock
shall continue in office until the successors shall have been elected
by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 3) be filled by vote of a majority of
the remaining Directors theretofore elected by the holders of the
class of stock which elected the Director whose office shall have
become vacant. References in this paragraph (C) to Directors elected by
the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (y)
of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the
holders of Preferred Stock as a class shall terminate, and (z) the
number of Directors shall be such number as may be provided for in the
certificate of incorporation or by-laws irrespective of any increase
made pursuant to the provisions of paragraph (C)(ii) of this Section 3
(such number being subject, however, to change thereafter in any
manner provided by law or in the certificate of incorporation or
by-laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining Directors.
(d) Except as set forth herein, holders of Series A Junior
Participating 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.
SECTION 4. Certain Restrictions
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in
full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
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(ii) declare or pay dividends on 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 Junior
Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating 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;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity 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
Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any share of stock ranking
on a parity with the Series A Junior Participating 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.
(b) 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 (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled 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 to be created by resolution or
resolutions of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
SECTION 6. Liquidation, Dissolution or Winding up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior Participating
Preferred Stock unless, prior thereto, the holders of shares of Series A
Junior Participating Preferred Stock
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shall have received $1000 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation Preference"). Following the
payment of the full amount of Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1000 (as appropriately adjusted as set forth
in subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock) (such
number in clause (ii) immediately above being referred to as the "Adjustment
Number"). Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed in
the ratio of the Adjustment Number to one (1) with respect to such Preferred
Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of Preferred Stock, if
any, which rank on a parity with the Series A Junior Participating Preferred
Stock, then such remaining assets shall be distributed ratably to the holders
of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
(C) 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 Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment 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 prior to such event.
SECTION 7. Consolidation, Merger, Etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchange for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares
of Series A Junior Participating Preferred Stock 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 1000 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
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Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding 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 Junior Participating 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.
SECTION 8. No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
SECTION 9. Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred Stock as
to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise.
SECTION 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Junior Participating Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of a majority or more of the outstanding
shares of Series A Junior Participating Preferred Stock, voting separately as
a class.
SECTION 11. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share but no such fraction
shall be less than one one-thousandth of a share which shall entitle the
holder, in proportion to such holders 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 Junior Participating
Preferred Stock.
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