SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED FEBRUARY 28, 1994
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____ to ____
Commission File Number 1-5858
UNIVAR CORPORATION
A Delaware I.R.S. Employer
Corporation No. 91-0816142
6100 Carillon Point
Kirkland, Washington 98033
Telephone No. (206) 889-3400
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of each class on Which Registered
Common Stock, $.33-1/3 Par Value New York Stock Exchange
Pacific Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. [ X ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ X ]
The aggregate market value of voting stock held by non-affiliates of the
registrant at May 16, 1994 was approximately $100,890,000. As of such
date, 21,648,273 shares of the registrant's common stock, $0.33-1/3 par
value, which is the registrant's only class of common stock, were
outstanding.
Documents Incorporated by Reference
The Corporation's definitive Proxy Statement to be filed pursuant to
Regulation 14A under the Securities Exchange Act of 1934 (Item 10 -
Directors Only, and Items 11, 12 and 13 of Part III)
<PAGE>
ITEM 7./FISCAL 1994 COMPARED WITH FISCAL 1993 (con't)
Consolidated operating expenses, including re-engineering costs, as a
percentage of sales, were 13.7% for 1994 compared with 13.5% for 1993.
In the United States, operating expenses, exclusive of re-engineering
charges, as a percentage of sales, increased to 14.1% for 1994 compared
with 13.8% for 1993. Increases in wages, depreciation, and
environmental costs were partially offset by savings realized from
management of health care costs and lease costs, and by continuing
benefits from expense reduction programs. Canadian operating expenses
dropped to 9.8% of sales for 1994 compared with 10.5% of sales for
1993. European operating expenses decreased to 14.6% of sales compared
with 15.1% in the prior year. Reductions in operating expenses, as a
percentage of sales, in both Canada and Europe are due primarily to
increased sales volumes which did not require related increased fixed
costs and realized benefits of continuing cost reduction programs.
During the third quarter, the Corporation initiated an intensive re-
engineering program which, when completed, should result in significant
fundamental changes in business practices in our U.S. operations. The
Corporation has retained a consulting firm which has broad experience
assisting both chemical industry and wholesale distribution clients to
identify and implement the type of changes necessary in order for the
Corporation to achieve a significant competitive advantage. Re-
engineering costs to date total $4.5 million, consisting primarily of
consulting fees and travel costs incurred in the study of current
operations and preliminary designs for change. The Corporation expects
this effort to continue throughout fiscal 1995. Costs are expected to
total approximately $12 million for fiscal 1995, consisting primarily of
consulting fees.
<PAGE>
ACQUISITION OF UNIVAR EUROPE
At the time of the organization of Univar Europe in 1991, Univar and
Pakhoed entered into a Shareholder Agreement which gave Pakhoed a
unilateral right to sell its 49% interest in Univar Europe to Univar
Corporation. On May 18, 1994, Pakhoed gave notice to Univar that
Pakhoed had elected to require Univar to purchase Pakhoed's interest in
Univar Europe. The purchase is expected to close on September 1, 1994.
The anticipated purchase price is approximately $25 million.
LIQUIDITY AND CAPITAL RESOURCES
Cash flows provided from operations totaled $35.4 million for the
current year, compared with $39.9 million for fiscal 1993 and $53.3
million for fiscal 1992. Cash provided by operations was used to
finance the Corporation's capital expenditures, pay dividends, and
reduce debt.
The Corporation has domestic and foreign short-term credit lines
totaling $85.6 million, of which $62.3 million was available at fiscal
year-end 1994. The Corporation and its domestic and Canadian
subsidiaries are parties to a medium-term revolving credit agreement
with a group of banks which provide up to $210 million in available
borrowings, of which $115 million was available at February 28, 1994.
Total short-, medium- and long-term borrowings at fiscal year-end 1994
were $177.7 million, compared with $208.3 million at the end of fiscal
1993. (See Notes 2 and 3 to the financial statements.) The ratio of
interest bearing debt (including non-interest bearing subordinated debt)
to equity, which we have targeted at 1:1 historically, was 1.13:1 at the
end of the current year, down from 1.28:1 at the end of the prior year.
The increase over our target is due mainly to the subordinated debt owed
to the minority shareholder by Univar Europe of approximately $20.1
million. Subsequent to year end, as described in a preceding section,
Univar Corporation sold 2 million shares of stock at a price of $18.74
per share for a total purchase price of $37.5 million. Additionally,
the Corporation announced it will acquire the minority shareholder's
interest in Univar Europe. As a result of these transactions, the
Corporation expects its ratio of interest bearing debt to equity to be
significantly lower than the historical target.
The Corporation believes its internally generated cash, together with
its access to available worldwide bank lines, will be adequate to cover
anticipated liquidity requirements.
Working capital, excluding cash and cash equivalents and short-term
borrowings, totaled $98.6 million at the end of fiscal 1994, compared
with $102.7 million and $110.5 million at the end of fiscal 1993 and
1992, respectively. The decrease is due primarily to continuing
emphasis on inventory management programs.
At fiscal year-end 1994, the ratio of current assets to current
liabilities was 1.28:1 compared to 1.31:1 at fiscal year-end 1993. The
change for the current year was due primarily to utilization of
available cash to reduce debt and to reduction of inventories.
<PAGE>
Dividends and Return on Equity
Cash dividends declared and paid during the year totaled $0.30 per
share, unchanged from the two prior years. Return on beginning equity
was 3.3% for the current year compared with a return of 3.0% for the
fiscal year ended 1993 and a negative return of 3.8% for fiscal 1992.
Business Acquisitions and Divestitures
During fiscal 1994, the Corporation completed small acquisitions in
Canada and the U.S., which together are expected to add approximately
$28 million in sales volume. The aggregate purchase price was $4.4
million, consisting of inventories and non-compete covenants.
During fiscal 1994, in a series of transactions, the Corporation sold
its textile chemical distribution business. This business contributed
approximately $21 million of sales for fiscal 1994 and $37 million in
sales for fiscal 1993. Proceeds from the combined transactions totaled
$2.8 million, resulting in a gain on the sale of $0.4 million. Assets
sold consisted primarily of inventories and a small amount of fixed
assets.
During fiscal 1992, the Corporation completed acquisitions which
provided entry into the European market and enhanced its competitive
market position in the northeastern United States and in Canada. The
Corporation's European acquisition, described in Note 7 to the financial
statements, resulted in the acquisition of a 51% owned subsidiary,
Univar Europe N.V., a Netherlands corporation, and of four companies
with operations in the United Kingdom, Scandinavia, Switzerland and
northern Italy. Funding of the $59.1 million acquisition was provided
in part by seller financing totaling approximately $8.9 million. The
balance of the funding was provided proportionately by the Corporation
(51%) and by Pakhoed (49%) in the form of interest and non-interest
bearing debt and equity. The Corporation funded its contribution with
proceeds from the sale of shares to Dow as described in Note 7 of the
financial statements. On May 18, 1994, Univar agreed to acquire
Pakhoed's 49% minority interest in Univar Europe. See the "Subsequent
Events" discussion included above.
On December 13, 1991, the Corporation, through its Canadian subsidiary,
Van Waters & Rogers Ltd., acquired substantially all of the working
capital and selected fixed assets and real property of Harcros Chemicals
Canada Inc., a Canadian corporation, for a purchase price of $30.4
million (U.S. Dollars). Funding for the acquisition was provided by a
combination of available cash in the Canadian subsidiary and borrowings
under existing Canadian bank lines.
During the fiscal 1992 year, the Corporation also completed two other
U.S. business acquisitions for an aggregate purchase price of $11.1
million.
See Note 10 to the financial statements for sales and other operations
data by geographic area.
<PAGE>
NOTE 3 - LONG TERM DEBT AND REVOLVING CREDIT (con't)
The Corporation has entered into certain interest rate swap agreements
to manage its exposure to interest rate fluctuations. At February 28,
1994, the aggregate notional value of these agreements totaled $50
million, with a weighted average remaining life of approximately 7
years. These agreements effectively convert a portion of the
Corporation's floating rate debt to fixed rate debt with rates ranging
from 6.77% to 7.25% The estimated aggregate fair value of the
contracts, as measured by the amount required to terminate the
agreements at the balance sheet date, was approximately $2.8 million.
The Corporation is exposed to, but does not anticipate, credit loss in
the event of counterparty nonperformance.
In 1992, Univar Europe executed a foreign currency denominated note
(U.S. dollar equivalent of $6.0 million at February 28, 1994) in
connection with its acquisition of certain subsidiaries (see Note 7).
The due date of the note payable is June 1995, but may be deferred up to
December 1998 if the seller has not achieved certain minimum net worth
requirements by December 1994. In accordance with contract provisions,
the seller has agreed to provide indemnification to Univar Europe for
certain environmental and other undisclosed liabilities that existed as
of the acquisition date. Univar Europe has the right to offset these
liabilities against the note's principal balance. Payment of this note
is reflected in the schedule of maturities of long-term debt for 1999 at
the full amount although potential for reduction exists.
Univar Europe was capitalized, in part, with interest and non-interest
bearing subordinated debt provided to Univar Europe by the Corporation
and the minority shareholder. While the loans made by the Corporation
to Univar Europe are eliminated in the consolidated balance sheet, the
following subordinated loans, denominated in foreign currencies, made by
the minority shareholder to Univar Europe are included in the
Corporation's consolidated balance sheet:
Subordinated Debt (Thousands of dollars) 1994 1993
Non-interest bearing notes payable $13,600 $14,081
Interest bearing notes payable 6,502 7,573
-------- --------
$20,102 $21,654
======== ========
The interest and non-interest bearing subordinated notes are denominated
in Swedish Krona, British Pounds Sterling and Swiss Francs. The notes
are payable at the mutual consent of the Corporation and the minority
shareholder or in the event of a change in ownership of Univar Europe.
Interest is payable quarterly at rates of 90-day STIBOR plus 0.5%, or
Sterling LIBOR (Pound Sterling based London Interbank Offering Rate)
plus 0.5%. The 90-day STIBOR and 90-day Sterling LIBOR were 7.6% and
5.4%, respectively, at Univar Europe's year-end.
<PAGE>
NOTE 5 - TAXES ON INCOME (con't)
FASB Statement No. 109 "Accounting for Income Taxes," was adopted
effective March 1, 1993, resulting in a change in the method of
accounting for income taxes. The favorable impact of the change is not
material and is included in the provision for taxes on income for the
year.
Domestic and foreign components of income (loss) before taxes on income
and minority interest consisted of the following:
(Thousands of dollars) 1994 1993 1992
Domestic $ -246 $ 1,618 $-12,659
Foreign 10,488 6,810 4,856
-------- -------- --------
$10,242 $ 8,428 $ -7,803
======== ======== ========
Provision for (benefit of) taxes on income (loss) consisted of the
following components:
(Thousands of dollars) 1994 1993 1992
Current
Federal $ 889 $ 408 $-3,512
State and Local 140 498 -1,394
Foreign 5,261 1,900 2,492
-------- -------- --------
6,290 2,806 -2,414
Deferred -------- -------- --------
Federal -1,770 358 12
State and Local 291 -770 44
Foreign -408 417 573
-------- -------- --------
-1,887 5 629
-------- -------- --------
$ 4,403 $2,811 $-1,785
======== ======== ========
Deferred tax balances consisted of the following temporary differences
at February 28, 1994 and March 1, 1993:
(Thousands of dollars) 1994 1993
Deferred Tax Deferred Tax Deferred Tax Deferred Tax
Assets Liabilities Assets Liabilities
Alternative minimum
tax $ 7,500 $ --- $ 6,312 $ ---
Tax loss and credit
carryforwards 480 --- 3,446 ---
Self-Insurance
Reserves 2,410 --- 2,271 ---
Pension and other
compensation accruals 1,266 --- 2,323 ---
State Income Tax
Accrual 1,268 --- --- ---
Vacation accrual 1,268 --- --- ---
Property --- 37,233 --- 39,424
Other 4,162 4,784 7,872 8,563
-------- ------- --------- --------
Total $ 18,354 $42,017 $22,224 $ 47,987
======== ======= ========= ========
<PAGE>
NOTE 6 - PENSION AND OTHER POST-RETIREMENT BENEFITS
PENSION BENEFITS
The Corporation and its subsidiaries have defined benefit pension plans
covering substantially all employees in the U.S., Canada, and the United
Kingdom, excluding those employees covered by unions that operate plans
independent of the Corporation or its subsidiaries. The Corporation's
funding policy is to contribute annually amounts that provide for
benefits attributed to service to date and benefits expected to be
earned during the plan year, based on the projected final average
compensation and where pension laws or economics either require or
encourage funding.
The U.S. funded plan is the largest plan. Its benefits are based on
length of service and the employee's highest five-year average
compensation. The rate of increase in future compensation levels, and
the expected long-term rate of return on plan assets used in determining
the actuarial present value of the projected benefit obligations were 6%
and 10%, respectively, for both 1994 and 1993. The weighted average
discount rate used was 7.8% and 8.6%, for 1994 and 1993, respectively.
The market value of assets, consisting primarily of cash equivalents
and equity securities is as reported by the trustee bank serving the
pension plan.
Employees of non-U.S. subsidiaries generally receive pension benefits
from corporate sponsored plans or from statutory plans administered by
governmental agencies in their countries. Corporate sponsored foreign
plans have applied the provisions of Statement of Financial Accounting
Standards No. 87 using assumptions that are similar to those utilized
for the U.S. plans.
The status of the Corporation's funded defined benefit plans is as
follows:
(Thousands of dollars) 1994 1993
Actuarial present value of
benefit obligations
Vested $84,544 $70,161
Non-vested 2,228 1,884
------- -------
Accumulated benefit
obligation $86,772 $72,045
======= =======
Projected benefit obligation $109,866 $90,529
Plan assets at fair value -80,395 -68,236
-------- -------
Projected benefit obligation
in excess of plan assets 29,471 22,293
Unrecognized net transition
obligation 327 396
Unrecognized prior service
cost -244 -71
Unrecognized net loss (plan
changes and actuarial losses) -26,251 -15,065
Accrued pension cost, included -------- --------
in current and long-term
liabilities $ 3,303 $ 7,553
======== ========
<PAGE>
NOTE 7 - BUSINESS ACQUISITIONS AND DIVESTITURES
During fiscal 1994, the Corporation completed small acquisitions in
Canada and the U.S., which together are expected to add approximately
$28 million in sales volume. The aggregate purchase price was $4.4
million, consisting of inventories and non-compete covenants.
During fiscal 1994, in a series of transactions, the Corporation sold
its textile chemical distribution business. This business contributed
approximately $21 million of sales for fiscal 1994 and $37 million of
sales for fiscal 1993. Proceeds from the combined transactions totaled
$2.8 million, resulting in a gain on the sale of $0.4 million. Assets
sold consisted primarily of inventories and a small amount of fixed
assets.
The Corporation and its then 31% shareholder, Pakhoed Investeringen B.V.
(Pakhoed), entered into an agreement resulting in the formation of
Univar Europe, which was incorporated in The Netherlands in 1990.
Univar Europe was 51% owned by the Corporation and 49% owned by Pakhoed.
On May 18, 1994, the Corporation agreed to acquire Pakhoed's 49%
interest in Univar Europe. See Note 12 - Subsequent Events.
Univar Europe was capitalized with equity and with interest and non-
interest bearing foreign currency denominated subordinated debt provided
to Univar Europe by the Corporation and Pakhoed. Prior to 1991, Univar
Europe had no operations.
Univar Europe acquired all of the capital stock of four companies which
comprised the Beijer Industrial Distribution Group (BID Group). The
transaction included the acquisition in June 1991 of K&K-Greeff
(Holdings) Ltd., a British corporation with operations in the United
Kingdom; and MB-Sveda AB, a Swedish corporation with operations in
Scandinavia. In August 1991, the Corporation completed its acquisition
of the BID Group by acquiring Scheller Handel AG, a Swiss corporation
with operations in Switzerland; and Benfer-Scheller SpA, an Italian
corporation with operations in northern Italy. The operations of the
acquired companies are comparable to the Corporation's North American
industrial chemical distribution activities.
The aggregate purchase price of $59.1 million consisted of cash
consideration of $47.7 million, a foreign currency denominated note
payable valued at $7.6 million, related expenses of $2.5 million and a
foreign currency denominated contract for deferred consideration in an
amount to be determined. The future amount of the deferred
consideration to be paid (at current exchange rates) will be a minimum
of $1.6 million and a maximum of $8.0 million. The exact future amount
is to be determined based on earnings of the entities acquired. The
deferred consideration is non-interest bearing, and is payable in fiscal
1996. The discounted future value of the minimum amount is included in
long-term debt. Funding for the Corporation's 51% share of the
aggregate purchase price was provided through the sale of 1.9 million
shares of the Corporation's common stock to The Dow Chemical Company
(Dow) as described in Note 12.
<PAGE>
NOTE 8 - COMMON STOCK TRANSACTIONS (See also Note 12 - Subsequent
Events)
STOCK OPTIONS AND RESTRICTED STOCK AWARDS
The Corporation's long-term incentive stock plans (the Plans) provide
for the granting, to officers and key employees, of non-qualified stock
options, incentive stock options, and restricted stock awards. For
incentive stock options, the option price cannot be less than the fair
market value of the common stock at the date of grant. Non-qualified
stock options may be granted at less than the fair market value of the
common stock. Under one program, options become exercisable beginning 3
years after the date of grant, and expire 10 years and 3 months after
the date of grant, based on the Corporation's performance compared with
performance of a selected peer group.
Under all other programs, options become exercisable at the rate of 20%
per year beginning two years after the date of grant, and expire ten
years after the date of grant. Options may be exercisable as determined
by the committee of the Board of Directors that administers the Plans.
Restricted Stock Awards (RSA's) may be granted or sold to officers and
key employees. RSA's may not be sold or otherwise disposed of during
the established restriction periods, presently five and six years.
NOTE 12 - SUBSEQUENT EVENTS
UNIVAR EUROPE STOCK PURCHASE AGREEMENT
At the time of the organization of Univar Europe in 1991, Univar and
Pakhoed entered into a Shareholder Agreement which gave Pakhoed a
unilateral right to sell its 49% interest in Univar Europe. On May 18,
1994, Pakhoed gave notice to Univar that Pakhoed had elected to require
Univar to purchase Pakhoed's interest in Univar Europe. The purchase is
expected to close on September 1, 1994. The anticipated purchase price
is approximately $25 million.
SCHEDULE V -- PROPERTY, PLANT AND EQUIPMENT
UNIVAR CORPORATION AND SUBSIDIARIES
FOR THE YEARS ENDED FEBRUARY 28/29, 1994, 1993, and 1992
(Thousands of Dollars)
ADDITIONS
Balance at Assets of
Beginning of Additions Company
Classification Year at Cost Acquired Retirements
Year ended
Feb. 28, 1994:
Land $ 23,362 $ 429 $ $ 0
Buildings 101,539 3,014 -340
Equipment 209,054 8,264 -5,953
Leased property
under capital
leases 5,419 318 -314
Construction in
progress 8,200 1,999 0
------- ------- ------- -------
$347,574 $14,024 $ 0 -6,607
======== ======= ======= ======
Year ended
Feb. 28, 1993:
Land $ 22,601 $ 11 $ $ 0
Buildings 107,777 1,776 -291
Equipment 153,969 9,595 -7,457
Leased property
under capital
leases 5,582 -66
Construction in
progress 62,886 5,175 -216
-------- ------- ------- -------
$352,815 $16,557 $ 0 $-8,030
======== ======== ======= =======
Year ended
Feb. 29, 1992:
Land $ 17,261 $ 68 $ 5,449 $ -15
Buildings 82,717 737 18,511 -631
Equipment 115,421 9,892 24,355 -2,577
Leased property
under capital
leases 5,082 459 --
Construction in
progress 51,634 20,255 206 92
------- ------- ------- -------
$272,115 $30,952 $48,980 $-3,131
======== ======= ======= =======
<PAGE>
Exhibit
Number Description
Exhibits identified in parentheses below, on file with the Securities
and Exchange Commission, are incorporated herein by reference as
exhibits hereto.
(3.1) Restated Certificate of Incorporation of the
Registrant, as amended August 21, 1987 (filed as Exhibit
3.1 to Form 10-K dated May 22, 1989, File No. 1-5858).
(3.2) By-laws of the Registrant, as amended October 26,
1990.
3.3 Restated Certificate of Incorporation of the
Registrant, as amended September 19, 1989.
(4.1) Certificate of Designation of Series A Junior
Participating Convertible Preferred Stock of Univar
Corporation (filed as Exhibit 4(ii) to Form 8-K dated May
13, 1994, File No. 1-5858)
(10.1) Univar Corporation 1979 Executive Stock Purchase
Agreement, as amended (filed with Registration Statement
on Form S-3, File No. 33-3933).
(10.2) 1981 Stock Option Plan (filed with Registration
Statement on Form S-8, File No. 2-98329).
(10.3) Univar Corporation 1986 Long-Term Incentive Stock
Plan (filed with Registration Statement on Form S-8, File
No. 33-34700).
(10.4) Agreement for Exchange of Capital Stock, dated as
of September 19, 1986, (filed as Exhibit 2(i) to Form 8-K
dated November 1, 1986, File No. 0-2754).
(10.5) Asset Purchase and Sale Agreement, dated as of
September 19, 1986, (filed as Exhibit 2(ii) to Form 8-K
dated November 1, 1986, File No. 0-2754).
(10.6) First Amendment to Asset Purchase and Sale
Agreement, dated as of October 21, 1986 (filed as Exhibit
2(iii) to Form 8-K dated November 1, 1986, File No. 0-
2754).
(10.7) Addendum to Asset Purchase and Sale Agreement,
dated as of October 31, 1986 (filed as Exhibit 2(iv) to
Form 8-K dated November 1, 1986 (File No. 0-2754).
(10.8) Standstill Agreement between Univar Corporation and
Pakhoed Investeringen B.V., dated as of September 19, 1986
(filed as Exhibit 4(i) to Form 8-K dated November 1, 1986,
File No. 0-2754).
Exhibit 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
UNIVAR CORPORATION
1. UNIVAR CORPORATION was incorporated under the name of VWR
UNITED CORPORATION by the filing of its Certificate of Incorporation
with the Secretary of State of Delaware on September 16, 1966.
2. This Restated Certificate of Incorporation was duly adopted
by the Board of Directors and shareholders of this corporation in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
3. This Restated Certificate of Incorporation restates,
integrates, and further amends the provisions of the corporation's
Certificate of Incorporation, as theretofore amended or supplemented.
4. The provisions of this Restated Certificate of Incorporation
are as follows:
ARTICLE I
The name of the corporation (hereinafter called the "Corporation")
is UNIVAR CORPORATION.
ARTICLE II
The respective names of the County and of the City within the
County in which the registered office of the Corporation is to be
located in the State of Delaware are the County of New Castle and the
City of Wilmington. The name of the registered agent of the Corporation
is The Corporation Trust Company. The street and number of said
registered office and the address by street and number of said
registered agent is 1209 Orange Street, Wilmington, Delaware.
ARTICLE III
The purpose of the Corporation is to create the maximum continuing
rate of value growth through long-term profit on invested capital and
the growth of that capital.
To accomplish this purpose, the Board of Directors, management and
employees of the Corporation will strive to:
Properly select business opportunities versus risk;
Develop and maintain strategic direction for all business
segments;
Develop and maintain superior management and organizational
structures;
Encourage employee involvement in the business process;
Provide all employees the opportunity of a value growth
environment of good employment, training, advancement
and recognition of their achievements;
Create market understanding of the intrinsic values so
created;
Conduct its business legally and ethically within the free
enterprise system as a responsible corporate citizen.
In carrying out this purpose, the Corporation is authorized to
engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
1. The total number of shares of all classes of stock which
this Corporation shall have authority to issue is 40,750,000 shares to
be divided into two classes consisting of 40,000,000 shares of common
stock of the par value of $.33-1/3 per share (hereinafter designated
"Common Stock") and 750,000 shares of preferred stock of no par value
(hereinafter designated "preferred stock"). The Common Stock shall have
one vote for each share. The preferred stock shall have such full or
limited or no voting powers as shall be stated and expressed in the
resolution or resolutions of the Board of Directors of this Corporation
providing for the issue of such stock pursuant to authority vested in it
by the provisions of its Certificate of Incorporation, as amended;
provided, however, that said preferred stock shall never have voting
powers in excess of one vote per share.
The preferred stock may be issued in one or more series of stock
and each such series may have such voting powers (but not in excess of
one vote per share), full or limited or no voting powers, and such
designation, preferences, and relative participating optional or other
special rights and qualifications, limitations or restrictions thereof
as shall be stated and expressed in a resolution or resolutions
providing for the issue of such preferred stock adopted by the Board of
Directors pursuant to the authority hereby granted; provided, however,
that no shares of preferred stock shall be given a preference over the
Common Stock or other junior stock of more than $20.00 per share plus
accumulated dividends out of the assets of the Corporation on any
liquidation, dissolution or winding up of the Corporation.
2. The shares of stock of this Corporation may be issued by
this Corporation from time to time for such consideration, not less than
the par value thereof except as otherwise provided by law, as from time
to time may be fixed by the Board of Directors of this Corporation; and
all issued shares of the capital stock of this Corporation shall be
deemed fully paid and non-assessable and the holders of such shares
shall not be liable thereunder to this Corporation or to its creditors.
3. No shareholder of this Corporation shall have any preemptive
or preferential right of subscription to any shares of any stock of this
Corporation, issued or sold, nor any right of subscription to any
thereof other than such, if any, as the Board of Directors of this
Corporation in its discretion from time to time may determine.
4. The minimum amount of capital with which it will commence
business is Two Thousand Dollars ($2,000.00).
ARTICLE V
The existence of this Corporation is to be perpetual.
ARTICLE VI
The private property of the shareholders shall not be subject to
the payment of corporate debts to any extent whatever.
ARTICLE VII
1. Subject to the provisions of any series of preferred stock
which may at the time be outstanding, any "Major Transaction" (as
hereinafter defined) shall require the affirmative vote of the holders
of not less than 80% of the outstanding "Voting Stock" (as hereinafter
defined) of the Corporation, which shall include the affirmative vote of
at least 50% of the outstanding Voting Stock held by shareholders other
than the "Related Person" (as hereinafter defined) involved in such
Major Transaction, provided however that such voting requirement shall
not be applicable if:
(a) The Major Transaction was approved by the Board of
Directors of the Corporation either (i) prior to the Related Person
involved in the Major Transaction having become a Related Person, or
(ii) after such Related Person became such but only if the Related
Person has sought and obtained the unanimous approval by the Board of
Directors of such Related Person's acquisition of 20% or more of the
outstanding shares of Voting Stock prior to such acquisition being
consummated; or
(b) The Major Transaction involves solely the Corporation
and a Subsidiary none of whose stock is Beneficially Owned by a Related
Person (other than Beneficial Ownership) arising solely because of
control of the Corporation); provided that each shareholder of the
Corporation receives the same type of consideration in such transaction
in proportion to his stockholdings; or
(c) Prior to becoming a Related Person, such Related
Person made a tender offer for Voting Stock which: (i) conformed in all
respects to federal laws and regulations governing such a transaction
whether or not the Corporation or such stock was then regulated by or
registered under said laws, (ii) committed such Related Person to take
all shares tendered if it took any shares, and (iii) resulted in such
Related Person acquiring at least 75% of the shares of each class of
Voting Stock held by persons other than such Related Person; or
(d) All the following conditions are satisfied:
(i) The cash or fair market value of the property,
securities or other consideration to be received per share (as adjusted
for stock splits, stock dividends, reclassifications of shares into a
lesser number and similar events) by holders of Common Stock of the
Corporation in the Major Transaction is not less than the higher of (A)
the highest per share price (including brokerage commissions, soliciting
dealers' fees, dealer-management compensation, and other expenses,
including, but not limited to, costs of newspaper advertisements,
printing expenses and attorneys' fees) paid by such Related Person in
acquiring any of its holdings of the Corporation's Common Stock or (B)
an amount which bears the same or a greater percentage relationship to
the market price of the Corporation's Common Stock immediately prior to
the announcement of such Major Transaction as the highest per share
price determined in (A) above bears to the market price of the
Corporation's Common Stock immediately prior to the commencement of
acquisition of the Corporation's Common Stock by such Related Person;
and
(ii) After becoming a Related Person and prior to the
consummation of such Major Transaction, (A) such Related Person shall
not have acquired any shares of stock, directly or indirectly, from the
Corporation or a Subsidiary (except upon conversion of convertible
securities acquired by it prior to becoming a Related Person or upon
compliance with the provisions of this Article VII or as a result of a
pro rata stock dividend or stock split) and (B) such Related Person
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 provided by the
Corporation or a Subsidiary, or made any major changes in the
Corporation's business or equity capital structure without the unanimous
vote of the members of the Board then in office; and
(iii) A proxy statement responsive to the
requirements of the Securities Exchange Act of 1934, whether or not the
Corporation is then subject to such requirements, shall be mailed to all
shareholders of the Corporation for the purpose of soliciting
shareholder approval of such Major Transaction and shall contain at the
front thereof, in a prominent place any recommendations as to the
advisability (or inadvisability) of the Major Transaction which the
Continuing Directors, or any outside Directors, may choose to state.
2. For purposes of this Article VII, the following defined
terms shall have the following meanings:
(a) The term "Major Transaction" shall mean (1) any merger
or consolidation of this Corporation or a Subsidiary with or into a
Related Person, (2) any sale, lease, exchange, transfer or other
disposition, including without limitation, a mortgage or any other
security device, of all or any Substantial Part of the assets of this
Corporation (including without limitation any securities of a
Subsidiary) or of a Subsidiary, to a Related Person, (3) any merger or
consolidation of a Related Person with or into this Corporation or a
Subsidiary, (4) any sale, lease, exchange, transfer or other disposition
of all or any Substantial Part of the assets of a Related Person to the
Corporation or a Subsidiary, (5) the issuance of any securities of this
Corporation or a Subsidiary to a Related Person, (6) the acquisition by
this Corporation or a Subsidiary of any securities of a Related Person,
(7) any reclassification of Voting Stock of this Corporation, or any
recapitalization involving Voting Stock of this Corporation, proposed by
a Related Person within five years after such Related Person became a
Related Person, (8) any loan or other extension of credit by the
Corporation or a Subsidiary to a Related Person or any guarantees by the
Corporation or a Subsidiary of any loan or other extension of credit by
any person to a Related Person, and (9) any agreement, contract or other
arrangement providing for any of the transactions described in this
definition of Major Transaction.
(b) The terms "Beneficial Owner" and correlative terms
shall have the meanings ascribed to them in Rule 13d-3 and related
interpretive releases promulgated and issued under the Securities
Exchange Act of 1934. Without limitation, any shares of Voting Stock of
the Corporation which any Related Person has the right to vote or to
acquire pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed 'Beneficially
owned, by such Related Person.
(c) The term "Related Person" shall mean and include any
individual, corporation, partnership or other person or entity and each
member of any "person" as such term is defined in Section 13(d)(3) of
the Securities Exchange Act of 1934 which, together with its
"affiliates" and "associates" (as those terms are defined in Rule 12b-2
under the Securities Exchange Act of 1934) or other members of such
"person" and any other person or entity with which it or its affiliates
or associates has any agreement, arrangement, or understanding, directly
or indirectly, for the purpose of acquiring, holding, voting or
disposing of Voting Stock of the Corporation, is the Beneficial Owner of
20% or more in the aggregate of the outstanding shares of Voting Stock
of the Corporation, and any "affiliate," "associate" or member of such
"person," of any such other persons or entities.
(d) The term "Substantial Part" shall mean more than ten
percent of the total assets of the person or entity in question, as of
the end of its most recent fiscal year ending prior to the time the
determination is being made.
(e) The term "Subsidiary" shall mean any corporation or
other entity more than 50% of the stock of which is Beneficially owned
by the Corporation.
(f) The term "Voting Stock" shall mean all Common Stock
and any other shares entitled to vote for the election of Directors of
the Corporation.
(g) For the purposes of subparagraph l(d)(i) of this
Article VII, the "other consideration to be received" shall include,
without limitation, Voting Stock of the Corporation retained by its
existing public shareholders in the event of a Major Transaction which
is a merger or consolidation in which the Corporation is the surviving
corporation.
(h) With respect to any proposed Major Transaction, the
term "Continuing Director" shall mean a director who was a member of the
Board of Directors of the Corporation immediately prior to the time that
any Related Person involved in the proposed Major Transaction acquired
20% or more of the outstanding shares of Voting Stock of the
Corporation, and the term "Outside Director" shall mean a director who
is not (1) an officer or employee of the Corporation or any of its
Subsidiaries or any relative of an officer or employee, (2) a Related
Person or an officer, director or employee, associate or affiliate of a
Related Person, or a relative of any of the foregoing, or (3) a person
having a direct or indirect material business relationship with the
Corporation or any subsidiary.
3. The Board of Directors of the Corporation shall have the
power and duty to determine for the purposes of this Article VII, on the
basis of information known to the Corporation, whether (a) any
corporation, person or other entity "Beneficially Owns," directly or
indirectly, more than twenty percent (20%) of the shares of the Voting
Stock, (b) any corporation, person or other entity is an affiliate, or
"associate" of another and (c) any proposed sale, lease, exchange or
other disposition of part of the assets of the Corporation or any of its
"affiliates" involves a "Substantial Part" of the assets of the
Corporation or such "affiliate," provided that assets involved in any
single transaction or series of related transactions having an aggregate
fair market value of more than fifteen percent (15%) of the total
consolidated assets of the Corporation and its affiliates shall always
be deemed to constitute a "Substantial Part" for purposes of this
Article VII. Any such determination made in good faith shall be
conclusive and binding for all purposes of this Article VII.
4. Nothing contained in this Article VII shall be construed to
relieve any Related Person from any fiduciary obligation imposed by law.
ARTICLE VIII
The provisions set forth in this Article VIII and in Articles III
and VII herein may not be repealed or amended in any respect, unless
such action is approved by the affirmative vote of the holders of not
less than 80% of the outstanding shares of Voting Stock (as defined in
Article VII) of the Corporation, subject to the provisions of any series
of preferred stock which may at the time be outstanding, provided,
however, that if there is a shareholder of the Corporation which is a
Related Person (as defined in Article VII), such 80% vote must include
the affirmative vote of at least 50% of the outstanding Voting Stock
held by shareholders other than the Related Person.
ARTICLE IX
The directors shall have power to make and to alter or amend the
Bylaws; to fix the amount to be reserved as working capital, and to
authorize and cause to be executed mortgages and liens without limit as
to the amount, upon the property and franchise of this Corporation.
ARTICLE X
1. Any purchase by the Corporation of shares of Voting Stock
(as hereinafter defined) from an Interested Shareholder (as hereinafter
defined), other than pursuant to an offer to the holders of all of the
outstanding shares of the same class of Voting Stock as those so
purchased, at a per share price in excess of the Market Price (as
hereinafter defined) at the time of such purchase of the shares so
purchased, shall require the affirmative vote of the holders of that
amount of the voting power of the Voting Stock equal to the sum of (i)
the voting power of the shares of Voting Stock of which the Interested
Shareholder is the beneficial owner (as hereinafter defined) and (ii) a
majority of the voting power of the remaining outstanding shares of
Voting Stock, voting together as a single class.
2. In addition to any affirmative vote required by law or this
Certificate of Incorporation:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Shareholder
or (b) any other corporation (whether or not itself an Interested
Shareholder) which is, or after such merger or consolidation would be,
an Affiliate (as hereinafter defined) of an Interested Shareholder; or
(ii) 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 any assets of the corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of $2,000,000 or
more; or
(iii) 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 having an aggregate Fair
Market Value of $2,000,000 or more to any Interested Shareholder or any
Affiliate of any Interested Shareholder in exchange for cash, securities
or other property (or a combination thereof); or
(iv) 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
(v) 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 has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any subsidiary which is directly or indirectly owned by
any Interested Shareholder or any Affiliate of any Interested
Shareholder;
shall require either (a) the approval of a majority of the Disinterested
Directors (as hereinafter defined) or (b) the affirmative vote of the
holders of that amount of voting power of the Voting Stock equal to the
sum of (1) the voting power of the shares of Voting Stock of which the
Interested Shareholder is the beneficial owner and (2) a majority of the
voting power of the remaining outstanding shares of Voting Stock, voting
together as a single class; provided, however, that no such vote shall
be required (i) for the purchase by the Corporation of shares of Voting
Stock from an Interested Shareholder except where such vote is required
by Section 1 of this Article X, (ii) in any transaction with an
Interested Shareholder who is also a Related Person as defined in
Article VII and to which the provisions of Article VII apply, or (iii)
in any transaction with an interested Shareholder who has beneficially
owned all his shares of voting stock for two years or more.
3. In any election of directors of the Corporation on or after
the date on which any Substantial Shareholder (as hereinafter defined)
becomes a Substantial Shareholder, and until such a time as no
Substantial Shareholder any longer exists, there shall be cumulative
voting for election of directors so that any holder of shares of Voting
Stock entitled to vote in such election shall be entitled to as many
votes as shall equal the number of directors to be elected multiplied by
the number of votes to which such Shareholder's shares would be entitled
except for the provisions of this Section 3, and such Shareholder may
cast all of such votes for a single director, or distribute such votes
among as many candidates as such Shareholder sees fit. In any such
election of directors, one or more candidates for the Board of Directors
of the Corporation may be nominated by a majority of the Disinterested
Directors. With respect to any candidates nominated by a majority of
the Disinterested Directors or by any person who is the beneficial owner
of shares of Voting Stock having a Market Price of $250,000 or more,
there shall be included in any proxy statement or other communication
with respect to such election to be sent to holders of shares of Voting
Stock by the corporation during the period in which there is a
Substantial Shareholder, at the expense of the Corporation, descriptions
and other statements of or with respect to such candidates submitted by
them or on their behalf, which shall receive equal space, coverage and
treatment as is received by candidates nominated by the Board of
Directors or management of the Corporation provided that such
information is received on a timely basis and complies with applicable
federal and state securities laws.
4. It shall be the duty of any Interested Shareholder:
(i) to give or cause to be given written notice to the
Corporation, immediately upon becoming an Interested Shareholder, of
such person's status as an Interested Shareholder and of such other
information as the Corporation may reasonably require with respect to
identifying all owners and amount of ownership of the outstanding Voting
Stock of which such Interested Shareholder is a beneficial owner as
defined herein, and
(ii) to notify the Corporation promptly in writing of any
change in the information provided in subparagraph (i) of this Section
4;
provided, however, that the failure of an Interested Shareholder to
comply with the provisions of this Section 4 shall not in any way be
construed to prevent the Corporation from enforcing the provisions of
sections 1 through 3 of this Article X.
5. For the purposes of this Article X:
(A) A "person" shall mean any individual, firm,
corporation or other entity.
(B) "Voting Stock" shall mean the outstanding shares of
capital stock of the Corporation entitled to vote in the election of
directors, excluding any class or series of capital stock which is
entitled to such vote only upon the occurrence of an event or condition
which has not occurred.
(C) "Interested Shareholder" shall mean any person (other
than the Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly,
of 5% or more of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate (as hereinafter defined) 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 5% or more of the voting power of the then outstanding
Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which 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.
(D) "Substantial Shareholder" shall mean any person (other
than the Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly,
of 40% or more of the voting power of the outstanding Voting Stock; or
(ii) 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 40% or
more of the voting power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time within the two year
period immediately prior to the date in question beneficially owned by
any Substantial 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.
(E) A person shall be a "beneficial owner" of any Voting
Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly or
indirectly; or
(ii) 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 pursuant to any agreement, arrangement or
understanding; or
(iii) 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.
(F) For the purposes of determining whether a person is an
Interested Shareholder or a Substantial Shareholder pursuant to
paragraphs C and D of this Section 5, the number of shares of Voting
Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph E of this Section 5 but shall not include any
other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(G) "Affiliate" or "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
June 26, 1985.
(H) "Subsidiary" means any corporation of which a majority
of any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definitions
of Interested Shareholder and Substantial Shareholder set forth in
paragraphs C and D of this Section 5, the term "Subsidiary" shall mean
only a corporation of which a majority of the voting power of the
capital stock entitled to vote generally in the election of directors is
owned, directly or indirectly, by the Corporation.
(I) "Market Price" means: the last closing sale price
immediately preceding the time in question of a share of the stock in
question on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the Composite Tape, on the
New York Stock Exchange, or, if such stock is not listed on such
Exchange, 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 last
closing bid quotation with respect to a share of such stock immediately
preceding the time in question of the National Association of Securities
Dealers, Inc., Automated Quotations System, or any system then in use,
(or any other system of reporting or ascertaining quotations then
available), or if such stock is not so quoted, the fair market value at
the time in question of a share of such stock as determined by the Board
in good faith.
(J) "Fair Market Value" means: (i) in the case of stock,
the Market Price, and (ii) 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 the Board in good faith.
(K) "Disinterested Director" means any member of the Board
of Directors of the Corporation (the "Board") who is unaffiliated with
any Interested Shareholder and/or Substantial Shareholder and was a
member of the Board prior to the time that any Interested Shareholder or
Substantial Shareholder became an Interested Shareholder or Substantial
Shareholder, and any successor of a Disinterested Director who is
unaffiliated with any Interested Shareholder or Substantial Shareholder
and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board.
6. A majority of the Disinterested Directors of the Corporation
shall have the power and duty to determine for the purposes of this
Article X, on the basis of information known to them after reasonable
inquiry, (A) whether a person is an Interested Shareholder or a
Substantial Shareholder, (B) the number of shares of Voting Stock
beneficially owned by any person, (C) whether a person is an Affiliate
or an Associate of another person and (D) whether a transaction or a
series of transactions constitutes one of the transactions specified in
Section 2 hereof. The good faith determination of a majority of the
Disinterested Directors shall be conclusive and binding for all purposes
of this Article X.
7. Notwithstanding any other provisions of this Certificate of
Incorporation or Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, this Certificate of
Incorporation or the Bylaws of the Corporation), the affirmative vote of
the holders of at least 80% of the voting power of the outstanding
Voting Stock, voting together as a single class, shall be required to
amend or repeal, or adopt any provisions inconsistent with, this Article
X, provided, however, that if there is a shareholder of the Corporation
who is a Related Person (as defined in Article VII), such 80% vote must
include the affirmative vote of at least 50% of the voting power of the
outstanding Voting Stock held by shareholders other than the Related
Person.
ARTICLE XI
1. The number of Directors of the Corporation shall be
specified in the Bylaws, and such number may from time to time be
increased or decreased in such manner as may be prescribed in the
Bylaws, provided the number of Directors of the Corporation shall not be
less than seven (7).
2. Beginning with the Board of Directors elected at the Annual
Meeting of Shareholders held in 1985, Directors shall be classified with
respect to the time for which they shall severally hold office by
dividing them into three classes, as nearly equal in number as possible.
At such meeting, separate elections shall be held for the Directors of
each class: those of the first class to be elected for a term of office
to expire at the 1986 Annual Meeting of Shareholders, those of the
second class to be elected for a term of office to expire at the 1987
Annual Meeting of Shareholders, and those of the third class to be
elected for a term of office to expire at the 1988 Annual Meeting of
Shareholders. At each succeeding Annual Meeting of Shareholders
following the 1985 Annual Meeting, the class of Directors then being
elected shall be elected to hold office for a term of office to expire
at the third succeeding Annual Meeting of Shareholders after their
election. Each Director shall hold office for the term for which
elected and until his successor shall have been elected and qualified.
3. Any Director, any class of Directors, or the entire Board of
Directors may be removed from office as a Director at any time, (a) for
cause, by the affirmative vote at a duly called Meeting of Shareholders
of at least eighty percent (80%) of the votes which all Shareholders
would be entitled to cast at an Annual Election of Directors or (b)
without cause by the affirmative vote at a duly called meeting of
Shareholders which satisfies the requirements of paragraph 6 of this
Article XI applicable to an amendment, modification or repeal.
4. Vacancies in the Board of Directors, including vacancies
resulting from an increase in the number of Directors, shall be filled
only by a majority of the remaining Directors then in office, though
less than a quorum, or by the sole remaining Director. All Directors
elected to fill vacancies shall hold office for a term expiring at the
Annual Meeting of Shareholders at which the term of the class to which
they have been elected expires. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any
incumbent Director unless such Director shall voluntarily resign.
5. All corporate powers shall be exercised by the Board of
Directors except as otherwise provided by law or this Certificate of
Incorporation.
6. A new issue of a class or series of Voting Stock (as defined
in Article X) may be given the right to elect one or more directors,
provided that such class or series of Voting Stock is authorized by a
resolution approved by a majority of the Disinterested Directors (as
defined in Article X).
7. Notwithstanding anything contained in this Certificate of
Incorporation or the Bylaws of the Corporation to the contrary, the
affirmative vote at a duly called Meeting of Shareholders of at least
eighty percent (80%) of the votes which all stockholders would be
entitled to cast at an Annual Election of Directors, shall be required
to amend, modify or repeal the provisions set forth here in Article XI,
provided, however, that if there is a shareholder of the Corporation
which is a Related Person (as defined in Article VII), such 80% vote
must include the affirmative vote of at least 50% of the voting power of
the outstanding Voting Stock held by shareholders other than the Related
Person.
ARTICLE XII
1. Any action by Shareholders of the corporation shall only be
taken at a Meeting of Shareholders and no action may be taken by written
consent of Shareholders entitled to vote upon such action.
2. Notwithstanding anything contained in this Certificate of
Incorporation or the Bylaws of the Corporation to the contrary, the
affirmative vote at a duly called meeting of Shareholders of at least
eighty percent (80%) of the votes which all stockholders would be
entitled to cast at an Annual Election of Directors, shall be required
to amend, modify or repeal the provisions set forth here in Article XII,
provided, however, that if there is a shareholder of the Corporation who
is a Related Person (as defined in Article VII), such 80% vote must
include the affirmative vote of at least 50% of the voting power of the
outstanding Voting Stock held by shareholders other than the Related
Person.
ARTICLE XIII
To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a director of this
Corporation shall not be liable to the Corporation or its shareholders
for monetary damages for breach of duty as a director.
We, the undersigned, for the purposes of forming a corporation
under the laws of the State of Delaware, do make, file, and record this
Certificate, and do certify that the facts herein stated are true; and
we have accordingly hereunto set our respective hands and seals.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation has
been duly executed in the corporate name of UNIVAR CORPORATION by its
Senior Vice President - Finance and Administration, duly acknowledged,
and has caused its corporate seal to be hereunto affixed on this 19th
day of September, 1989.
UNIVAR CORPORATION
By /S/ NICOLAAS SAMSOM
Senior Vice President -
Finance and Administration
ATTEST:
/S/ BARRY C. MAULDING
Corporate Secretary
