EXHIBIT 3.1
INTERDIGITAL COMMUNICATIONS CORPORATION
AMENDED & RESTATED
ARTICLES OF INCORPORATION
In compliance with the requirements of the Pennsylvania
Business Corporation Law of 1988, as amended, the Articles of Incorporation of
INTERDIGITAL COMMUNICATIONS CORPORATION are hereby amended and restated in their
entirety to read as follows:
ARTICLE FIRST
The name of the Corporation is InterDigital Communications Corporation.
ARTICLE SECOND
The location and post office address of its registered office is 781
Third Avenue, King of Prussia, Pennsylvania 19406-1409.
ARTICLE THIRD
The Corporation is incorporated under the Business Corporation Law of
the Commonwealth of Pennsylvania for the purpose or purposes of engaging in or
doing any lawful act concerning any or all lawful business for which
corporations may be incorporated under the Pennsylvania Business Corporation
Law, including but not limited to manufacturing, owning, using, leasing and
dealing in personal property of every class and description, and acquiring,
owning, using and disposing of real property of any nature whatsoever.
ARTICLE FOURTH
The term for which the Corporation is to exist is perpetual.
ARTICLE FIFTH
The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is:
(i) 100,000,000 shares of Common Stock, $0.01 par value per share ("Common
Stock"), and
(ii) 14,398,600 shares of Preferred Stock, $0.10 par value per share
("Preferred Stock").
The voting rights, designations, preferences, qualifications,
privileges, limitations, options, conversion rights and other special rights
(the "Rights and Preferences") of the shares of the respective classes of stock
of the Corporation are and will be determined as follows:
A. Preferred Stock
The Board of Directors of the Corporation shall have full and
complete authority, by resolution from time to time, to establish one or more
series and to issue shares of Preferred Stock and to fix, determine and vary the
Rights and Preferences of each series of Preferred Stock, including, but not
limited to, dividend rates and manner of payment, preferential amounts payable
upon voluntary or involuntary liquidation, voting rights, conversion rights,
redemption prices, terms and conditions and sinking fund and stock purchase
prices, terms and conditions.
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B. Series B Junior Participating Preferred Stock.
The series of Preferred Stock, $.10 par value per share, of
the Corporation known as Series B Junior Participating Preferred Stock shall
have the following Rights and Preferences:
Section 1. Designation and Amount.
The shares of such series shall be designated as "Series B
Junior Participating Preferred Stock" and the number of shares constituting such
series shall be 90,000. In this Article Fifth, the Series B Junior Participating
Preferred Stock is sometimes referred to as the "Series B Preferred Stock."
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any other series of Preferred Stock or any other shares of
preferred stock of the Corporation ranking prior and superior to the shares of
Series B Preferred Stock with respect to dividends, each holder of one
one-thousandth (1/1000) of a share (a "Unit") of Series B Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for that purpose, (i) dividends payable in cash when
and if declared by the Board of Directors of the Corporation in respect of the
Common Stock (each such date being a "Dividend Payment Date") commencing on the
first Dividend Payment Date after the first issuance of such Unit of Series B
Preferred Stock, in an amount per Unit (rounded to the nearest cent) equal to,
subject to the provision for adjustment hereinafter set forth, the aggregate per
share amount of all cash dividends declared on shares of the Common Stock since
the immediately preceding Dividend Payment Date, or, with respect to the first
Dividend Payment Date, since the first issuance of a Unit of Series B Preferred
Stock, and (ii) subject to the provision for adjustment hereinafter set forth,
distributions (payable in kind) on each Dividend Payment Date in an amount per
Unit equal to the aggregate per share amount of all noncash 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 shares of common stock since the immediately preceding
Dividend Payment Date, or with respect to the first Dividend Payment Date, since
the first issuance of a Unit of Series B Preferred Stock. In the event that the
Corporation shall at any time after December 13, 1996 (the "Rights Declaration
Date"), (i) declare any dividend on outstanding shares of Common Stock payable
in shares of common stock, (ii) subdivide outstanding shares of Common Stock or
(iii) combine outstanding shares of Common Stock into a smaller number of
shares, then in each such case the amount to which the holder of a Unit of
Series B Preferred Stock was entitled immediately prior to such event pursuant
to the next preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common Stock
that are outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution
on Units of Series B Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the shares of Common
Stock (other than a dividend payable in shares of Common Stock).
Section 3. Voting Rights.
The holders of Units of Series B Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each Unit of Series B Preferred Stock shall entitle the holder thereof to
one vote on all matters submitted to a vote of the holders of Common Stock of
the Corporation. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock or (iii) combine the outstanding shares of Common Stock into a smaller
number of shares, then in each such case the number of votes per Unit to which
holders of Units of Series B Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction the
numerator of which shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such event.
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(B) Except as otherwise provided herein or by law, the holders
of Units of Series B Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of holders
of Common Stock of the Corporation.
(C) Except as set forth herein, holders of Units of Series A
Preferred Stock shall have no special voting rights and their consents shall not
be required (except to the extent they are entitled to vote with holders of
shares of Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever any dividends or distributions payable, on Units
of Series B Preferred Stock as provided in Section 2 have not been paid in full,
thereafter and until all such accrued and unpaid dividends and distributions,
whether or not declared, on outstanding Units of Series B Preferred Stock shall
have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or repurchase or otherwise acquire for consideration, any shares
of junior stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of parity stock, except dividends paid ratably on
Units of Series B Preferred Stock and shares of all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of such Units and all such shares are then entitled;
(iii) redeem or repurchase or otherwise acquire for
consideration shares of any parity stock; provided, however, that the
Corporation may at any time redeem, repurchase or otherwise acquire shares of
any such parity stock in exchange for shares of any junior stock;
(iv) repurchase or otherwise acquire for consideration (other
than shares of junior stock) any Units of Series B Preferred Stock, except in
accordance with a repurchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such Units on the same
terms.
(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, repurchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares.
Any Units of Series B 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 Units shall, upon
their cancellation, become authorized but unissued Units 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 voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (i) to the
holders of shares of junior stock unless the holders of Units of Series B
Preferred Stock shall have received, subject to adjustment as hereinafter
provided in paragraph (B), the amount, per Unit, equal to the aggregate per
share amount to be distributed to holders of shares of common stock, or (ii) to
the holders of shares of parity stock, unless simultaneously therewith
distributions are made ratably on Units of Series B Preferred Stock and all
other shares of such parity stock in proportion to the total amounts to which
the holders of Units of Series B Preferred Stock are entitled under clause (i)
of this sentence and to which the holders of shares of such parity stock are
entitled, in each case upon such liquidation, dissolution or winding up.
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(B) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of
Common Stock, or (iii) combine outstanding shares of Common Stock into a smaller
number of shares, then in each such case the aggregate amount to which holders
of Units of Series B Preferred Stock were entitled immediately prior to such
event pursuant to clause (i)(b) of paragraph (A) of this Section 6 shall be
adjusted by multiplying such amount by a fraction the numerator of which shall
be the number of shares of Common Stock that are outstanding immediately after
such event and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately 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
exchanged for or converted into other stock or securities, cash and/or any other
property, then in any such case Units of Series B Preferred Stock shall at the
same time be similarly exchanged for or converted into an amount per Unit
(subject to the provision for adjustment hereinafter set forth) equal to 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 converted or exchanged. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on outstanding shares of
Common Stock payable in shares of Common Stock, (ii) subdivide outstanding
shares of Common Stock, or (iii) combine outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the immediately
preceding sentence with respect to the exchange or conversion of Units of Series
B Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which shall be
the number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 8. Redemption.
The Units of Series B Preferred Stock shall not be redeemable.
Section 9. Ranking.
The Units of Series B Preferred Stock shall rank junior to all
other series of the Preferred Stock and to any other class of preferred stock
that hereafter may be issued by the Corporation as to the payment of dividends
and the distribution of assets, unless the terms of any such series or class
shall provide otherwise.
Section 10. Amendment.
The Articles, including, without limitation, this resolution,
shall not hereafter be amended, either directly or indirectly, or through merger
or consolidation with another corporation in any manner that would alter or
change the powers, preferences or special rights of the Series B Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding Units of Series B Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares.
The Series B Preferred Stock may be issued in Units or other
fractions of a share, which Units or fractions shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series B Preferred Stock.
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Section 12. Certain Definitions.
As used herein with respect to the Series B Preferred Stock,
the following terms shall have the following meanings:
(A) The term "Common Stock" means the class of common stock
designated as the Common Stock, par value $.01 per share, of the Corporation at
the date hereof or any other class of stock resulting from successive changes or
reclassification of the common stock.
(B) The term "junior stock" (i) as used in Section 4 means the
common stock and any other class or series of capital stock of the Corporation
hereafter authorized or issued over which the Series B Preferred Stock has
preference or priority as to the payment of dividends and (ii) as used in
Section 6, shall mean the common stock and any other class or series of capital
stock of the Corporation over which the Series B Preferred Stock has preference
or priority in the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
(C) The term "parity stock" (i) as used in Section 4, means
any class or series of stock of the Corporation hereafter authorized or issued
ranking pari passu with the Series B Preferred Stock as to dividends and (ii) as
used in Section 6, shall mean any class or series of capital stock ranking pari
passu with the Series B Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up.
ARTICLE SIXTH
Shareholder's cumulative voting rights for the election of directors
are eliminated and denied.
ARTICLE SEVENTH
(a) The Directors, other than those who may be elected by the holders
of any class or series of stock entitled to elect directors separately, shall be
classified, with respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible, as shall be provided in
the manner specified in the By-laws of the Corporation, one class to be
originally elected for a term expiring at the annual meeting of shareholders to
be held in 1985, another class to be originally elected for a term expiring at
the annual meeting of shareholders to be held in 1986, and another class to be
originally elected for a term expiring at the annual meeting of shareholders to
be held in 1987, with each class to hold office until its successor is elected
and qualified. At each annual meeting of the shareholders of the Corporation,
the successors of the class of Directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting of
shareholders held in the third year following the year of their election.
(b) Except as otherwise provided for or fixed by or pursuant to the
provisions of Article Fifth hereof relating to the rights of the holders of any
class or series of stock entitled to elect Directors separately, newly created
directorships resulting from any increase in the number of Directors and
separately, newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled by
the Directors in the manner provided in the By-laws of the Corporation, to hold
office for the remainder of the full term of the class of Directors in which the
new directorship was created or the vacancy occurred and until such Director's
successor shall have been elected and qualified. No decrease in the number of
Directors constituting the Board of Directors shall shorten the term of any
incumbent Director.
(c) Except for the rights of any class or series of stock entitled to
elect Directors separately, any Director may be removed from office, without
assigning any cause, but only by the affirmative vote of the holders of 80
percent of the combined voting power of the then outstanding shares of stock
entitled to vote generally in the election of Directors, voting together as a
single class.
(d) Notwithstanding anything contained in the Articles of Incorporation
or By-laws to the contrary, and subject to the rights of any class or series of
stock entitled to elect Directors separately, the affirmative vote of the
holders of at least 80 percent or more of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend
or repeal this Article Seventh or to adopt any provision inconsistent herewith."
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ARTICLE EIGHTH
(a) The holders of all the shares outstanding and entitled to vote may,
by a majority vote, in the manner set forth in the By-laws, alter, amend or
repeal the By-laws of the Corporation, provided, however, that the affirmative
vote of the holders of 80 percent or more of the combined voting power of the
then outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend
or repeal Sections 3.1, 3.4, 3.11 or 8.1 of the By-laws of the Corporation, or
to adopt any provision inconsistent therewith.
(b) The Board of Directors, by a majority vote of the members thereof,
may make, alter, amend or repeal any provisions of the By-laws, in the manner
set forth in the By-laws. The shareholders shall have the right to change such
action by a majority vote of the shareholders entitled to vote thereon at any
Annual Meeting duly convened after notice to the shareholders of such purpose,
provided, however, that the vote of the holders of at least 80 percent of the
combined voting power of all of the then outstanding shares of stock entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to change such action with respect to Sections 3.1, 3.4, 3.11
or 8.1.
(c) Notwithstanding anything contained in the Articles of Incorporation
to the contrary, and subject to the rights of any class or series of stock
entitled to elect Directors separately, the affirmative vote of the holders of
at least 80 percent of the combined voting power of the then outstanding shares
of stock entitled to vote generally in the election of directors, voting
together as a single class, shall be required to alter, amend or repeal this
Article Eighth or to adopt any provision inconsistent herewith.
ARTICLE NINTH
The vote of shareholders of the Corporation required to approve any
Business Combination shall be as set forth in this Article Ninth. The term
"Business Combination" shall have the meaning ascribed to it in (a)(B) of this
Article; each other capitalized term used in this Article shall have the meaning
ascribed to it in (c) of this Article.
(a) (A) In addition to any affirmative vote required by law or the
Articles of Incorporation or any resolution adopted pursuant to Article Fifth of
the Articles of Incorporation, and except as otherwise expressly provided in (b)
of this Article Ninth, a Business Combination shall not be consummated without
the affirmative vote of the holders of at least 80 percent of the combined
voting power of the then outstanding shares of stock of all classes and series
of the Corporation entitled to vote generally in the election of Directors
("Voting Stock"), in each case voting together as a single class (it being
understood that for purposes of this Article Ninth, each share of the Voting
Stock shall have the number of votes granted to it pursuant to Article Fifth of
the Article of Incorporation). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or by the Articles of Incorporation or any
resolution or resolutions adopted pursuant to Article Fifth of the Articles of
Incorporation or in any agreement with any national securities exchange or
otherwise.
(B) The term "Business Combination" as used in this Article
Ninth shall mean:
(1) any merger or consolidation of the Corporation or any
Subsidiary with (i) any Interested Shareholder or (ii) any
other corporation or entity (whether or not itself an
Interested Shareholder) which is, or after each merger or
consolidation would be, an Affiliate of an Interested
Shareholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of all or a
Substantial Part of the assets of the Corporation or any
Subsidiary; or (3) the issuance or transfer by the Corporation
or any Subsidiary (in one transaction or a series of
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Shareholder or any Affiliate of
any Interested Shareholder in exchange for cash, securities or
other property (or a combination thereof), other than the
issuance of securities upon the conversion of convertible
securities of the Corporation or any Subsidiary which were not
acquired by such interested Shareholder (or such Affiliate)
from the Corporation or a Subsidiary; or
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(4) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of
an Interested Shareholder or any Affiliate of any Interested
Shareholder; or
(5) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction (whether or not with or
into or otherwise involving an interested Shareholder) which
in any such case has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares
of any class or series of stock or securities convertible into
stock of the Corporation or any Subsidiary which is directly
or indirectly beneficially owned by any Interested Shareholder
or any Affiliate of any Interested Shareholder;
(b) The provisions of (a) of this Article Ninth shall not be
applicable to any Business Combination in respect of which all of the conditions
specified in either of the following paragraphs A and B are met, and such
Business Combination shall require only such affirmative vote as is required by
law and any other provision of the Articles of Incorporation and any resolution
or resolutions of the Board of Directors adopted pursuant to Article Fifth of
the Articles of Incorporation.
(A) Such Business Combination shall have been approved by a
majority of the Disinterested Directors, or
(B) Each of the six conditions specified in the following
clauses (1) through (6) shall have been met:
(1) the aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination
(the "Consummation Date") of any consideration other than cash
to be received by holders of Common Stock in such Business
Combination shall be at least equal to the higher of the
following:
(i) (if applicable) the highest per
share price (including any brokerage
commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any
shares of Common Stock beneficially owned by
the Interested Shareholder which were
acquired beneficially by such Interested
Shareholder (x) within the two-year period
immediately prior to the Announcement Date
or (y) in the transaction in which it became
an Interested Shareholder, whichever is
higher; or
(ii) the Fair Market Value per share
of Common Stock on the Announcement Date or
on the date on which the Interested
Shareholder became an Interested Shareholder
(the Determination Date), whichever is
higher; and
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(2) the aggregate amount of the cash and the Fair Market Value
as of the Consummation Date of any consideration other than
cash to be received per share by holders of shares of any
other class or series of Voting Stock shall be at least equal
to the highest of the following (it being intended that the
requirements of this clause (B)(2) shall be required to be met
with respect to every class and series of such outstanding
Voting Stock, whether or not the Interested Shareholder
beneficially owns any shares of a particular class or series
of Voting Stock):
(i) (if applicable) the highest per
share price (including any brokerage
commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any
shares of such class or series of Voting
Stock beneficially owned by the Interested
Shareholder which were acquired beneficially
by such Interested Shareholder (x) within
the two-year period immediately prior to the
Announcement Date or (y) in the transaction
in which it became an interested
Shareholder, whichever is higher;
(ii) (if applicable) the highest
preferential amount per share to which the
holders of shares of such class or series of
Voting Stock are entitled in the event of
any voluntary or involuntary liquidation,
dissolution or winding up of the
Corporation; and
(iii) the Fair Market Value per
share of such class or series of Voting
Stock on the Announcement Date or the
Determination Date, whichever is higher; and
(3) the consideration to be received by holders of a
particular class or series of outstanding Voting Stock
(including Common Stock) shall be in cash or in the same form
as was previously paid in order to acquire beneficially shares
of such class or series of Voting Stock that are beneficially
owned by the Interested Shareholder and if the Interested
Shareholder beneficially owns shares of any class or series of
Voting Stock that were acquired with varying forms of
consideration, the form of consideration to be received by
holders of such class or series of Voting Stock shall be
either cash or the form used to acquire beneficially the
largest number of shares of such class or series of Voting
Stock beneficially acquired by it prior to the Announcement
Date; and
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(4) after such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business
Combination:
(i) except as approved by a majority
of the Disinterested Directors, there shall
have been no failure to declare and pay at
the regular dates therefor the full amount
of any dividends (whether or not cumulative)
payable on any class or series of stock
having preference over the Common Stock as
to dividends or upon liquidation;
(ii) there shall have been (x) no
reduction in the annual rate of dividends
paid on the Common Stock (except as
necessary to reflect any subdivision of the
Common Stock), except as approved by a
majority of the Disinterested Directors, and
(y) an increase in such annual rate of
dividends (as necessary to prevent any such
reduction) in the event of any
reclassification (including any reverse
stock split) recapitalization,
reorganization or any similar transaction
which has the effect of reducing the number
of outstanding shares of the Common Stock,
unless the failure so to increase such
annual rate was approved by a majority of
the Disinterested Directors; and
(iii) such Interested Shareholder
shall not have become the beneficial owner
of any additional shares of Voting Stock
except as part of the transaction in which
it became an Interested Shareholder; and
(5) after such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have
received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax
credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise; and
(6) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of
the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions replacing
such Act, rules or regulations) shall be mailed to public
shareholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions).
(c) For the purposes of this Article Ninth:
(A) A "person" shall mean any individual, firm, corporation or
other entity.
(B) "Interested Shareholder" shall mean any person (other than
the Corporation or any Subsidiary) who or which: (1) is the
beneficial owner, directly or indirectly, of more than 20
percent of the combined voting power of the then outstanding
shares of Voting Stock; or
(2) is an Affiliate 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 20
percent or more of the combined voting power of the then
outstanding shares of Voting Stock; or
(3) is an assignee or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock that were
at any time within the two-year period immediately prior to
the date in question beneficially owned by any Interested
Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(C) A person shall be a "beneficial owner" of any Voting
Stock:
(1) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is
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 or
direct the vote pursuant to any agreement, arrangement or
understanding; or
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(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 Stock.
(D) For the purposes of determining whether a person is an
Interested Shareholder pursuant to (c)(B) of this Article Ninth, the number of
shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of (c)(C) of this Article 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.
(E) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on May 25,
1984.
(F) "Subsidiary" means any corporation of which more than 50
percent of the combined voting power of the then outstanding shares of stock
entitled to vote generally in the election of directors is owned, directly or
indirectly, by the Corporation or by a Subsidiary or by the Corporation and one
or more Subsidiaries; provided, however, that for the purposes of the definition
of Interested Shareholder set forth in (c)(B) of this Article Ninth, the term
"Subsidiary" shall mean only a corporation of which a majority of the combined
voting power of the then outstanding shares of stock entitled to vote generally
in the election of directors is owned, directly or indirectly, by the
Corporation.
(G) "Disinterested Director" means any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a nominee of, the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Disinterested Director who is unaffiliated with, and not a nominee of, the
Interested Shareholder and who is recommended to succeed a Disinterested
Director by a majority of Disinterested Directors then on the Board of
Directors.
(H) "Fair Market Value" means: (1) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such stock on the principal United States
securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sales price or bid quotation with respect to a
share of such stock during the 30-day period preceding the date in question as
quoted by the National Association of Securities Dealers, Inc. Automated
Quotations Systems or any system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined by a majority of the Disinterested Directors in good faith;
and (2) in the case of stock of any class or series which is not traded on any
United States registered securities exchange nor in the over-the-counter market
or in the case of property other than cash or stock, the fair market value of
such property on the date in question as determined by a majority of the
Disinterested Directors in good faith.
(I) In the event of any Business Combination in which the
Corporation survives, the phase "other consideration to be received" as used in
(b)(B)(1) and (2) of this Article Ninth shall include the shares of the Common
Stock and/or the shares of any other class of outstanding Voting Stock retained
by the holders of such shares.
(J) "Announcement Date" means the date of first public
announcement of the proposed Business Combination.
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(K) "Determination Date" means the date on which the
Interested Shareholder became an Interested Shareholder.
(L) "Substantial Part" means more than 50 percent of the book
value of the total assets of the entity in question, as of the end of its most
recent fiscal year ending period to the Consummation Date.
(d) A majority of the Disinterested Directors of the Corporation shall
have the right and power to determine, on the basis of information known to them
after reasonable inquiry, all facts necessary to determine compliance with this
Article Ninth, including, without limitation (A) whether a person is an
Interested Shareholder, (B) the number of shares of Voting Stock beneficially
owned by any person, (C) whether a person is an Affiliate or Associate of
another person and (D) whether the requirements of (b) of this Article Ninth
have been met with respect to any Business Combination. The good faith
determination of a majority of the Disinterested Directors on such matters shall
be conclusive and binding for all purposes of this Article Ninth.
(e) Nothing contained in this Article Ninth shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by law.
(f) Notwithstanding anything contained in the Articles of Incorporation
to the contrary, the affirmative vote of the holders of at least 80 percent of
the voting power of the Voting Stock, voting together as a single class, shall
be required to alter, amend, or repeal this Article Ninth or to adopt any
provision inconsistent herewith.
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