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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
AMENDMENT NO. 1
[x] AMENDMENT TO QUARTERLY REPORT UNDER SECTION 13 OR 15(d)OF THE SECURITIES
EXCHANGE ACT OF 1934 For the quarterly period ended April 30, 1996
or
[ ] AMENDMENT TO 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 1-4003
DRESSER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware C 75-0813641
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
P. O. Box 718
2001 Ross Avenue 75221 (P. O. Box)
Dallas, Texas 75201
(Address of principal executive (Zip Code)
offices)
Registrant's telephone number, including area code - 214-740-6000
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, and (2) has been subject to such filing requirements
for the past 90 days.
Yes X . No .
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at May 31, 1996
Common Stock, par value $.25 179,068,397
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PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3(i) Restated Certificate of Incorporation of Registrant, as
amended
10 Form of Consulting Agreement with John Gavin
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DRESSER INDUSTRIES, INC.
By: /s/ George H. Juetten
George H. Juetten
Vice President - Controller
Dated: August 8, 1996
EXHIBIT INDEX
Exhibit Description
3(i) Restated Certificate of Incorporation of registrant, as amended
10 Form of Consulting Agreement with John Gavin
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Exhibit 3(i)
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED
OFFICE AND REGISTERED AGENT
OF
DRESSER INDUSTRIES, INC.
________________________
I, R.R. Morris, Vice President - Corporate Counsel of DRESSER INDUSTRIES,
INC., a Corporation of the State of Delaware, does hereby certify that the
following is a true copy of a resolution adopted by the Board of Directors at
a meeting held on November 16, 1995:
RESOLVED: That each officer of the Company be, and hereby is individually,
authorized to take such action as deemed appropriate or necessary to effect
change of the registered agent of the Company from The Corporation Trust
Company to Corporation Service Company in each jurisdiction in which the
Company does business.
FURTHER RESOLVED: That the address of the Company's registered office in
Delaware shall be as provided in Article I, Section 1 of the Company's
By-Laws as hereinafter amended.
FURTHER RESOLVED: That Section 1, Principal Office in Delaware, of
Article I, of the Company's By-Laws, be, and the same hereby is,
amended to read as follows, effective at the time and on the date of
filing a certificate certifying the change of registered agent in
the office of the Secretary of State of Delaware:
The principal office shall be in the City of Wilmington, County
of New Castle, and the name of the registered agent in charge
thereof is the Corporation Service Company, 1013 Centre Road,
Wilmington, Delaware 19805.
IN WITNESS WHEREOF, said corporation has caused this Certificate to be signed
on this 5th day of January, A.D. 1996.
/s/ Rebecca R. Morris
----------------------------------
R.R. Morris,
Vice President - Corporate Counsel
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CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
DRESSER INDUSTRIES, INC., a corporation organized and existing under and by
the virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of Dresser Industries,
Inc. resolutions were duly adopted setting for a proposed amendment to the
Restated Certificate of Incorporation, as amended, of said corporation,
declaring said amendment to be advisable and directing that the proposed
amendment be considered at the next annual meeting of the shareholders of said
corporation. The resolution setting forth the proposed amendment is as follows:
Resolved: That Section A of Article IV of the Restated Certificate of
Incorporation, as amended, of this Company be, and it hereby is, amended in its
entirety to read as follows:
"A. Authorized Shares and Classes of Stock.
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is four hundred ten million
(410,000,000) shares, which shall be divided into two classes as
follows: ten million (10,000,000) shares of Preferred Stock without
par value and four hundred million (400,000,000) shares of Common
Stock of the par value of twenty five cents (25 CENTS) each."
SECOND: That thereafter, pursuant to resolutions of its Board of
Directors, the Annual Meeting of the Shareholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting the necessary number
of shares as required by statue were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Dresser Industries, Inc. has caused this
certificate to be signed by John J. Murphy, its Chairman of the Board and
President, and attested by Stanley E. McGlothlin, its Assistant Secretary, this
21st day of March 1991.
DRESSER INDUSTRIES, INC.
/s/ JOHN J. MURPHY
------------------------------------
John J. Murphy
Chairman of the Board and President
ATTEST:
By: /s/ STANLEY E. MCGLOTHLIN
-------------------------
Stanley E. McGlothlin
Assistant Secretary
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AMENDED
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PREFERRED STOCK
OF
DRESSER INDUSTRIES, INC.
Pursuant to Section 151 of the Delaware
General Corporation Law
Dresser Industries, Inc., a corporation organized and existing under the
laws of the State of Delaware (the "Company"), DOES HEREBY CERTIFY:
1. That by resolution of the Board of Directors of the Company adopted
April 17, 1986, and by a Certificate of Designations filed in the office of the
Secretary of State of Delaware on April 22, 1986, the Company authorized the
issuance of a series of 1,000,000 shares of Series A Junior Participating
Preferred Stock of the Company (the "Series A Preferred Stock") and established
the voting powers, designations, preferences and relative, participating and
other rights, and the qualifications, limitations or restrictions thereof.
2. That as of the date hereof no shares of such Series A Preferred Stock
are outstanding and no shares of such Series A Preferred Stock have been issued.
3. That pursuant to authority conferred on the Board of Directors of the
Company by its Restated Certificate of Incorporation, as amended, and the
provisions of Section 151(g) of the General Corporation Law of the State of
Delaware, the Board of Directors on August 16, 1990 adopted the following
resolution changing the designation of such series of stock from "Series A
Junior Participating Preferred Stock" to "Series A Junior Preferred Stock" and
amending in their entireties the voting powers, preferences, and relative,
participating, optional or other special rights of the shares of the Series A
Preferred Stock, and the qualifications, limitations or restrictions thereof
effective upon the redemption of the rights (the "1986 Rights") issued pursuant
to the Rights Agreement between the Company and Harris Trust Company of New
York, as Rights Agent, dated as of April 17, 1986.
RESOLVED, that effective upon the redemption of the 1986 Rights and
pursuant to the authority conferred upon the Board of Directors of the Company
by its Restated Certificate of Incorporation and by the provisions of Section
151(g) of the General Corporation Law of the State of Delaware, the voting
powers, preferences and relative participating, optional or other special rights
of the Series A Preferred Stock of the Company, and the qualifications,
limitations or restrictions thereof, be and the same hereby are, amended in
their entireties to be as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Junior Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting such series shall be 2,000,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series A Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, (i) cash dividends in an amount per share (rounded to
the nearest cent) equal to 100 times the aggregate per share amount of all cash
dividends declared or paid on the Common Stock, $0.25 par value per share, of
the Company (the "Common Stock") and (ii) a preferential cash dividend (the
"Preferential Dividends"), if any, on the first day of each of March, June,
September and December of each year (each a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of
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a share of Series A Preferred Stock, in an amount equal to $10 per share of
Series A Preferred Stock less the per share amount of all cash dividends
declared on the Series A Preferred Stock pursuant to clause (i) of this
sentence since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock. In
the event the Company shall, at any time after the issuance of any share or
fraction of a share of Series A Preferred Stock, make any distribution on the
shares of Common Stock of the Company, whether by way of a dividend or a
reclassification of stock, a recapitalization, reorganization or partial
liquidation of the Company or otherwise, which is payable in cash or any debt
security, debt instrument, real or personal property or any other property
(other than cash dividends subject to the immediately preceding sentence, a
distribution of shares or Common Stock or other capital stock of the Company
or a distribution of rights or warrants to acquire any such share, including
any debt security convertible into or exchangeable for any such share, at a
price less than the Fair Market Value of such share), then in each such event
the Company shall simultaneously pay on each then outstanding share of Series
A Preferred Stock of the Company a distribution, in like kind, of 100 times
such distribution paid on a share of Common Stock (subject to the provisions
for adjustment hereinafter set forth). The dividends and distributions on
the Series A Preferred Stock to which holders thereof are entitled pursuant
to clause (i) of the first sentence of this paragraph and pursuant to the
second sentence of this paragraph are hereinafter referred to as "Series A
Dividends" and the multiple of such cash and non-cash dividends on the Common
Stock applicable to the determination of the Series A Dividends, which shall
be 100 initially but shall be adjusted from time to time as hereinafter
provided, is hereinafter referred to as the "Dividend Multiple". In the
event the Company shall at any time after October 3, 1990 declare or pay any
dividend or make any distribution on Common Stock payable in shares of Common
Stock, or effect a subdivision or split or a combination, consolidation or
reverse split of the outstanding shares of Common Stock into a greater or
lesser number of shares of Common Stock, then in each such case the Dividend
Multiple thereafter applicable to the determination of the amount of Series A
Dividends which holders of shares of Series A Preferred Stock shall be
entitled to receive shall be the Dividend Multiple applicable immediately
prior to such event multiplied by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) So long as any shares of Series A Preferred Stock are outstanding, no
dividend or other distribution (other than a dividend or distribution paid in
shares of Common Stock) shall be paid or set apart for payment by the Company on
the Common Stock, unless, in each case, the full dividends on all outstanding
shares of Series A Preferred Stock to which the holders thereof are entitled
shall have been paid. No dividends shall be paid or declared or set apart for
payment on the Series A Preferred Stock in respect of any period unless
dividends shall be or have been paid, or declared and set apart for payment, pro
rata on all shares of Preferred Stock at the time outstanding of each other
series which ranks equally as to dividends with the Series A Preferred Stock so
that the amount of dividends declared on the Series A Preferred Stock shall bear
the same ratio to the amount declared on each such other series as the accrued
dividends on the Series A Preferred Stock shall bear to the accrued dividends on
each such other series. Holders of shares of Series A Preferred Stock shall not
be entitled to any dividend, whether payable in cash,
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property or stock, in excess of full dividends, as herein provided, on shares
of Series Preferred Stock. Accruals of dividends shall not bear interest.
(C) Preferential Dividends shall begin to accrue on outstanding shares of
Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding
the date of issuance of any shares of Series A Preferred Stock. Accrued but
unpaid Preferential Dividends shall cumulate but shall not bear interest.
Preferential Dividends paid on the Shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
Section 3. VOTING RIGHTS. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Company.
The number of votes which a holder of Series A Preferred Stock is entitled to
cast, as the same may be adjusted from time to time as hereinafter provided, is
hereinafter referred to as the "Vote Multiple". In the event the Company shall
at any time after October 3, 1990 declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding shares of Common
Stock into a greater or lesser number of shares of Common Stock, then in each
such case the Vote Multiple thereafter applicable to the determination of the
number of votes per share to which holders of shares of Series A Preferred Stock
shall be entitled after such event shall be the Vote Multiple immediately prior
to such event multiplied by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Restated Certificate
of Incorporation or By-laws, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock shall vote together as one class on
all matters submitted to a vote of stockholders of the Company.
(C) In the event that the Preferential Dividends accrued on the
Series A Preferred Stock for four or more quarterly dividend periods, whether
consecutive or not, shall not have been declared and paid or set apart for
payment, the holders of record of Preferred Stock of the Company of all series
(including the Series A Preferred Stock), other than any series in respect of
which such right is expressly withheld by the Restated Certificate of
Incorporation or the authorizing resolutions included in the certificate of
designations therefor, shall have the right, at the next meeting of stockholders
called for the election of directors, to elect two members to the Board of
Directors, which directors shall be in addition to the number required by the
By-laws prior to such event, to serve until the next Annual Meeting and until
their successors are elected and qualified or their earlier resignation, removal
or incapacity or until such earlier time as all accrued and unpaid Preferential
Dividends upon the outstanding shares of Series A Preferred Stock shall have
been paid (or set aside for payment) in full. The holders of shares of Series A
Preferred Stock shall continue to have the right to elect directors as provided
by the immediately preceding sentence until all accrued and unpaid Preferential
Dividends upon the outstanding shares of Series A Preferred Stock shall have
been paid (or set aside for payment) in full. Such directors may be removed and
replaced by such stockholders, and
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vacancies in such directorships may be filled only by such stockholders (or
by the remaining director elected by such stockholders, if there be one) in
the manner permitted by law; provided, however, that any such action by
stockholders shall be taken at a meeting of stockholders and shall not be
taken by written consent thereto.
(D) Except as otherwise required by the Restated Certificate of
Incorporation or By-laws or set forth herein, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Stock as set forth herein) for the taking of any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever Preferential Dividends or Series A Dividends are in
arrears or the Company shall be in default of payment thereof, thereafter and
until all accrued and unpaid Preferential Dividends and Series A Dividends,
whether or not declared, on shares of Series A Preferred Stock outstanding shall
have been paid or set aside for payment in full, and in addition to any and all
other rights which any holder of shares of Series A Preferred Stock may have in
such circumstances, the Company shall not
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration, any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity as to dividends with Series A
Preferred Stock, unless dividends are paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled if the full dividends accrued thereon were to
be paid;
(iii) except as permitted by subparagraph (iv) of this paragraph
4(A), redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, provided that
the Company may at any time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of the Company
ranking junior (both as to dividends and upon liquidation, dissolution or
winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity with
the Series A Preferred Stock (either as to dividends or upon liquidation,
dissolution or winding up), except in accordance with a purchase offer made
to all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Company shall not permit any Subsidiary (as hereinafter defined)
of the Company to purchase or otherwise acquire for consideration any shares of
stock of the Company unless the Company could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in such
manner. A "Subsidiary" of the Company shall mean any corporation or other
entity of which securities or other ownership interest having ordinary voting
power sufficient to elect a majority of the board of directors or others persons
performing similar functions
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are beneficially owned, directly or indirectly, by the Company or by any
corporation or other entity that is otherwise controlled by the Company.
(C) The Company shall not issue any shares of Series A Preferred Stock
except upon exercise of Rights issued pursuant to that certain Rights Agreement
dated as of August 16, 1990 between the Company and Harris Trust Company of New
York, as Rights Agent, a copy of which is on file with the Secretary of the
Company at its principal executive office and shall be made available to
stockholders of record without charge upon written request therefor addressed to
said Secretary. Notwithstanding the foregoing sentence, nothing contained in
the provisions hereof shall prohibit or restrict the Company from issuing for
any purpose any series of Preferred Stock with rights and privileges similar to,
different from, or greater than, those of the Series A Preferred Stock.
Section 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
upon their retirement and cancellation shall become authorized but unissued
shares of Preferred Stock, without designation as to series, and such shares may
be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Company, no
distribution shall be made (i) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless the holders of shares of Series A Preferred
Stock shall have received, subject to adjustment as hereinafter provided, (A)
$100 per share plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, or
(B) if greater than the amount specified in clause (i)(A) of this sentence, an
amount equal to 100 times the aggregate amount to be distributed per share to
holders of Common Stock, as the same may be adjusted as hereinafter provided,
and (ii) to the holders of stock ranking on a parity upon liquidation,
dissolution or winding up with the Series A Preferred Stock, unless
simultaneously therewith distributions are made ratably on the Series A
Preferred Stock and all other shares of such parity stock in proportion to the
total amounts to which the holders of shares of Series A Preferred Stock are
entitled under clause (i)(A) of this sentence and to which the holders of such
parity shares are entitled, in each case upon such liquidation, dissolution or
winding up. The amount to which holders of Series A Preferred Stock may be
entitled upon liquidation, dissolution or winding up of the Company pursuant to
clause (i)(B) of the foregoing sentence is hereinafter referred to as the
"Participating Liquidation Amount" and the multiple of the amount to be
distributed to holders of shares of Common Stock upon the liquidation,
dissolution or winding up of the Company applicable pursuant to said clause to
the determination of the Participating Liquidation Amount, as said multiple may
be adjusted from time to time as hereinafter provided, is hereinafter referred
to as "Liquidation Multiple". In the event the Company shall at any time after
October 3, 1990 declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or split or a combination, consolidation
or reverse split of the outstanding shares of Common Stock into a greater or
lesser number of shares of Common Stock, then in each such case the Liquidation
Multiple thereafter applicable to the determination of the Participating
Liquidation Amount to which holders of Series A Preferred Stock shall be
entitled after such event shall be the Liquidation Multiple applicable
immediately prior to such event multiplied by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the
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denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. CERTAIN RECLASSIFICATION AND OTHER EVENTS.
(A) In the event that holders of shares of Common Stock of the Company
receive after October 3, 1990 in respect of their shares of Common Stock any
share of capital stock of the Company (other than any share of Common Stock of
the Company), whether by way of reclassification, recapitalization,
reorganization, dividend or other distribution or otherwise (a "Transaction"),
then and in each such event the dividend rights, voting rights and rights upon
the liquidation, dissolution or winding up of the Company of the shares of
Series A Preferred Stock shall be adjusted so that after such event the holders
of Series A Preferred Stock shall be entitled, in respect of each share of
Series A Preferred Stock held, in addition to such rights in respect thereof to
which such holder was entitled immediately prior to such adjustment, to (i) such
additional dividends as equal the Dividend Multiple in effect immediately prior
to such Transaction multiplied by the additional dividends which the holder of a
share of Common Stock shall be entitled to receive by virtue of the receipt in
the Transaction of such capital stock, (ii) such additional voting rights as
equal the Vote Multiple in effect immediately prior to such Transaction
multiplied by the additional voting rights which the holder of a share of Common
Stock shall be entitled to receive by virtue of the receipt in the Transaction
of such capital stock and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such Transaction multiplied by the additional amount
which the holder of a share of Common Stock shall be entitled to receive upon
liquidation, dissolution or winding up of the Company by virtue of the receipt
in the Transaction of such capital stock, as the case may be, all as provided by
the terms of such capital stock.
(B) In the event that holders of shares of Common Stock of the Company
receive after October 3, 1990 in respect of their shares of Common Stock any
right or warrant to purchase Common Stock (including as such a right, for all
purposes of this paragraph, any security convertible into or exchangeable for
Common Stock) at a purchase price per share less than the Fair Market Value (as
hereinafter defined) of a share of Common Stock on the date of issuance of such
right or warrant, then and in each such event the dividend rights, voting rights
and rights upon the liquidation, dissolution or winding up of the Company of the
shares of Series A Preferred Stock shall each be adjusted so that after such
event the Dividend Multiple, the Vote Multiple and the Liquidation Multiple
shall each be the product of the Dividend Multiple, the Vote Multiple and the
Liquidation Multiple, as the case may be, in effect immediately prior to such
event multiplied by a fraction the numerator of which shall be the number of
shares of Common Stock outstanding immediately before such issuance of rights or
warrants plus the maximum number of shares of Common Stock which could be
acquired upon exercise in full of all such rights or warrants and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately before such issuance of rights or warrants plus the number of shares
of Common Stock which could be purchased, at Fair Market Value of the Common
Stock at the time of such issuance, by the maximum aggregate consideration
payable upon exercise in full of all such rights or warrants.
(C) In the event that holders of shares of Common Stock of the Company
receive after October 3, 1990 in respect of their shares of Common Stock any
right or warrant to purchase capital stock of the Company (other than shares of
Common Stock), including as such a right, for all purposes of this paragraph,
any security convertible into or exchangeable for capital stock of the Company
(other than Common Stock), at a purchase price per share less than
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the Fair Market Value of such shares of capital stock on the date of issuance
of such right or warrant, then and in each such event the dividend rights,
voting rights and rights upon liquidation, dissolution or winding up of the
Company of the shares of Series A Preferred Stock shall each be adjusted so
that after such event each holder of a share of Series A Preferred Stock
shall be entitled, in respect of each share of Series A Preferred Stock held,
in addition to such rights in respect thereof to which such holder was
entitled immediately prior to such event, to receive (i) such additional
dividends as equal the Dividend Multiple in effect immediately prior to such
event multiplied, first, by the additional dividends to which the holder of a
share of Common Stock shall be entitled upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction (as hereinafter
defined) and (ii) such additional voting rights as equal the Vote Multiple in
effect immediately prior to such event multiplied, first, by the additional
voting rights to which the holder of a share of Common Stock shall be
entitled upon exercise of such right or warrant by virtue of the capital
stock which could be acquired upon such exercise and multiplied again by the
Discount Fraction and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such event multiplied, first, by the additional
amount which the holder of a share of Common Stock shall be entitled to
receive upon liquidation, dissolution or winding up of the Company upon
exercise of such right or warrant by virtue of the capital stock which could
be acquired upon such exercise and multiplied again by the Discount Fraction.
For purposes of this paragraph, the "Discount Fraction" shall be a fraction
the numerator of which shall be the difference between the Fair Market Value
of a share of the capital stock subject to a right or warrant distributed to
holders of shares of Common Stock of the Company as contemplated by this
paragraph immediately after the distribution thereof and the purchase price
per share for such share of capital stock pursuant to such right or warrant
and the denominator of which shall be the Fair Market Value of a share of
such capital stock immediately after the distribution of such right or
warrant.
(D) For purposes of this Section 7, the "Fair Market Value" of a share of
capital stock of the Company (including a share of Common Stock) on any date
shall be deemed to be the average of the daily closing price per share thereof
over the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that, in the event that such
Fair Market Value of any such share of capital stock is determined during a
period which includes any date that is within 30 Trading Days after (i) the ex-
dividend date for a dividend or distribution on stock payable in shares of such
stock or securities convertible into shares of such stock, or (ii) the effective
date of any subdivision, split, combination, consolidation, reverse stock split
or reclassification of such stock, then, and in each such case, the Fair Market
Value shall be appropriately adjusted by the Board of Directors of the Company
to take into account ex-dividend or post-effective date trading. The closing
price for any day shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way (in either case, as reported in the applicable transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange), or, if the shares are not listed or admitted to trading on the
New York Stock Exchange, as reported in the applicable transaction reporting
system with respect to securities listed on the principal national securities
exchange on which the shares are listed or admitted to trading or, if the shares
are no listed or admitted to trading on any national securities exchange, the
last quoted price or, if no so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as
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reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use, or if on any
such date the shares are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the shares selected by the Board of Directors of the
Company. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the shares are listed or admitted to
trading is open for the transaction of business or, if the shares are not
listed or admitted to trading on any national securities exchange, on which
the New York Stock Exchange or such other national securities exchange as may
be selected by the Board of Directors of the Company is open. If the shares
are not publicly held or not so listed or traded on any day within the period
of 30 Trading Days applicable to the determination of Fair Market Value
thereof as aforesaid, "Fair Market Value" shall mean the fair market value
thereof per share as determined in good faith by the Board of Directors of
the Company. In either case referred to in the foregoing sentence, the
determination of Fair Market Value shall be describe in a statement filed
with the Secretary of the Company.
Section 8. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each
outstanding share of Series A Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case may
be, for which or into which each share of Common Stock is changed or exchanged
multiplied by the highest of the Vote Multiple, the Dividend Multiple or the
Liquidation Multiple in effect immediately prior to such event.
Section 9. EFFECTIVE TIME OF ADJUSTMENTS.
(A) Adjustments to the Series A Preferred Stock required by the provisions
hereof shall be effective as of the time at which the event requiring such
adjustments occurs.
(B) The Company shall give prompt written notice to each holder of a share
of Series A Preferred Stock of the effect of any adjustment to the voting
rights, dividend rights or rights upon liquidation, dissolution or winding up of
the Company of such shares required by the provisions hereof. Not withstanding
the foregoing sentence, the failure of the Company to give such notice shall not
affect the validity of or the force or effect of or the requirement for such
adjustment.
Section 10. NO REDEMPTION. The shares of Series A Preferred Stock shall
not be redeemable at the option of the Company or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Company may acquire
shares of Series A Preferred Stock in any other manner permitted by law, the
provisions hereof and the Restated Certificate of Incorporation of the Company.
Section 11. RANKING. Unless otherwise provided in the Restated
Certificate of Incorporation of the Company or a Certificate of Designations
relating to a subsequent series of preferred stock of the Company, the Series A
Preferred Stock shall rank junior to all other series of the Company's preferred
stock as to the payment of dividends and the distribution of assets on
liquidation, dissolution or winding up and senior to the Common Stock.
Section 12. AMENDMENT. The provisions hereof and the Restated Certificate
of Incorporation of the Company shall not be amended in any manner which would
adversely affect the rights, privileges or powers of the Series A Preferred
Stock without, in addition to any other vote of Stockholders required by law,
the affirmative vote
8
<PAGE>
of the holders of two-thirds or more of the outstanding shares
of Series A Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, I have executed and subscribed this Amended and
Restated Certificate of Designations and do affirm the foregoing as true under
the penalties of perjury this 29th day of August, 1990.
/s/ JOHN J. MURPHY
------------------------------------
Name: JOHN J. MURPHY
Title: Chairman of the Board of Directors
and President
ATTEST:
/s/ REBECCA R. MORRIS
- ---------------------
Rebecca R. Morris
Assistant Secretary
9
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
DRESSER INDUSTRIES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of Dresser Industries,
Inc. resolutions were duly adopted setting forth a proposed amendment to the
Restated Certificate of Incorporation, as amended, of said corporation,
declaring said amendment to be advisable and directing that the proposed
amendment be considered at the next annual meeting of the shareholders of said
corporation. The resolution setting forth the proposed amendment is as follows:
RESOLVED: That the following article shall be added as a new Article VIII
to the Restated Certificate of Incorporation, as amended, of the Company:
ARTICLE VIII
SECTION 1. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
No Director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty by such
Director as a Director, except for any matter in respect of which such
Director shall be liable under Section 174 of the Delaware General
Corporation Law or any amendment thereto or successor provision
thereof or shall be liable by reason that, in addition to any and all
other requirements for such liability, he (i) shall have breached his
duty of loyalty to the Corporation or its stockholders, (ii) in acting
or in failing to act, shall not have acted in good faith or shall have
acted in a manner involving intentional misconduct or a knowing
violation of law or (iii) shall have derived an improper personal
benefit from the transaction in respect of which such breach of
fiduciary duty occurred. Neither the amendment nor repeal of Section
1 of this Article VIII shall eliminate or reduce the effect of Section
1 of this Article VIII in respect of any matter occurring, or any
cause of action suit or claim that, but for Section 1 of this Article
VIII would accrue or arise, prior to such amendment or repeal. If the
Delaware General Corporation Law is amended after approval by the
stockholders of this Article VIII to authorize corporate action
further eliminating or limiting the personal liability of Directors,
then the liability of a Director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended from time to time.
SECTION 2. INDEMNIFICATION AND INSURANCE
A. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal
representative, is or was a Director or officer of the Corporation or
is or was serving at the request of the Corporation as a director or
officer of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee
benefit plans maintained or sponsored by the Corporation (hereinafter,
"Corporate Agent"), whether the basis of such proceeding is alleged
action in an official capacity as a Director or officer of the
Corporation or Corporate Agent or in any other capacity while serving
as a Director, officer, or Corporate Agent, shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by
the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide
broader indemnification rights than said Law permitted the Corporation
to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, excise taxes
pursuant to the Employee Retirement Income Security Act of 1974 or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
Director, officer, or Corporate Agent and shall inure to the benefit
of his or her heirs, executors and administrators; PROVIDED, HOWEVER,
that, except as
<PAGE>
provided in paragraph B hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding
(or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Section
shall be a contractual right and shall include the right to be paid
by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; PROVIDED, HOWEVER,
that, if the Delaware General Corporation Law requires, the payment
of such expenses incurred by a Director or officer in advance of the
final disposition of a proceeding shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such Director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such Director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees
and other agents of the Corporation with the same scope and effect as
the foregoing indemnification of Directors, officers and Corporate
Agents.
B. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph A of
this Section is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim and, if successful in whole
or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standard of conduct
which makes it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met that applicable
standard of conduct.
C. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Section shall not be exclusive
of any other right which any person may have or hereafter acquire
under any statute, provision of this Restated Certificate of
Incorporation, By-law, agreement, vote of stockholders or
disinterested Directors, or otherwise.
D. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any Director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
SECOND: That thereafter, pursuant to resolutions of its Board of
Directors, the Annual Meeting of the Shareholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
2
<PAGE>
IN WITNESS WHEREOF, said Dresser Industries, Inc. has caused this
certificate to be signed by John J. Murphy, its Chairman of the Board and
President, and attested by Rebecca Morris, its Assistant Secretary, this 19th
day of March, 1987.
DRESSER INDUSTRIES, INC.
/s/ JOHN J. MURPHY
--------------------------------------
John J. Murphy
Chairman of the Board and President
ATTEST:
By /s/ REBECCA MORRIS
------------------
Rebecca Morris
Assistant Secretary
3
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
DRESSER INDUSTRIES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Dresser Industries,
Inc. resolutions were duly adopted setting forth proposed amendments to the
Restated Certificate of Incorporation, as amended, of said corporation,
declaring said amendments to be advisable and directing that the amendments
proposed be considered at the next annual meeting of the shareholders of said
corporation. The resolutions setting forth the proposed amendments are as
follows:
RESOLVED: That the following article shall be added as a new Article VI to
the Restated Certificate of Incorporation, as amended, of the Company:
ARTICLE VI
Section 1. Vote Required for Certain Business Combinations.
A. HIGHER VOTE FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote required by law or this Restated Certificate of Incorporation,
or any resolution or resolutions of the Board of Directors adopted pursuant to
Article IV of the Restated Certificate of Incorporation, and except as otherwise
expressly provided in Section 2 of this Article VI:
(i) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer dividend or
distribution (other than on a pro rata basis to all stockholders) or other
disposition (in one transaction or a series of transactions) to, with or
from any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value of $100 million 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 to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of $100 million or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any Interested
Stockholder or any Affiliate of any Interested Stockholder; 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 Stockholder) 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 Equity Security (as hereinafter defined) of the
Corporation or any subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder; or
(vi) any series or combination of transactions directly or indirectly
having the same effect as any of the foregoing;
shall require the affirmative vote of the holders of at least 70% of the voting
power or all of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (hereinafter referred
<PAGE>
to in this Article VI as "Voting Stock"), voting together as a single class
(it being understood that, for purposes of this Article VI, each share of the
voting Stock shall have the number of votes granted to it pursuant to Article
IV of this Restated Certificate 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 in any agreement with any
national securities exchange or otherwise, but such affirmative vote shall be
required in addition to any affirmative vote of the holders of any particular
class or series of the Voting Stock required by law or pursuant to Article IV
of the Restated Certificate of Incorporation.
B. DEFINITION OF "BUSINESS COMBINATION". The term "Business Combination"
as used in this Article VI shall mean any transaction which is referred to in
any one or more of clauses (i) through (vi) of Paragraph A of Section 1 of this
Article VI.
Section 2. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Section 1
of this Article VI shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Restated Certificate
of Incorporation, and any resolution or resolutions adopted by the Board of
Directors pursuant to Article IV of this Restated Certificate of Incorporation,
as amended, if the conditions specified in either of the following Paragraphs A
and B are met:
A. APPROVAL BY DISINTERESTED DIRECTORS. The Business Combination shall
have been approved by a majority of the Disinterested Directors (as hereinafter
defined), it being understood that this condition shall not be capable of
satisfaction unless there is at least one Disinterested Director.
B. PRICE AND PROCEDURE REQUIREMENTS. All of the six conditions specified
in subparagraph (i) through (vi) shall have been met:
(i) The aggregate of (a) the cash and (b) the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination, of consideration other than cash to be received per share by
holders of Common Stock in such Business combination shall be at least
equal to the higher of the following (it being intended that the
requirements of this subparagraph (B) shall be required to be met with
respect to all shares of Common Stock outstanding whether or not the
Interested Stockholder has previously acquired any shares of Common Stock):
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder in order to acquire any shares of
Common Stock acquired by it (1) within the two-year period immediately
prior to the date of the first public announcement of the proposal of
the Business Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested Stockholder, whichever is
higher; and
(b) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the interested Stockholder
became an Interested Stockholder (such latter date is referred to in
this Article VI as the "Determination Date"), whichever is higher.
(ii) The aggregate amount of (a) the cash and (b) the Fair Market
Value, as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any class of outstanding Voting Stock other than Common Stock
shall be at least equal to the highest of the following (it being intended
that the requirements of this Paragraph B (ii) shall be required to be met
with respect to every class or series of outstanding Voting Stock, whether
or not the Interested Stockholder has previously acquired any shares of a
particular class of Voting Stock):
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder in order to acquire any shares of
such class or series of Voting Stock acquired by it (1) within the
two-year period immediately prior to the Announcement Date or (2) in
the transaction in which it became an Interested Stockholder,
whichever is higher; and
2
<PAGE>
(b) (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
(c) the Fair Market Value per share of such class or series of
Voting Stock on the Announcement Date or on the Determination Date,
whichever is higher.
(iii) The consideration to be received by holders of shares of a
particular class of outstanding Voting Stock (including Common Stock) shall
be in cash or in the same form as the Interested Stockholder has previously
paid for shares of such class of Voting Stock. If the Interested
Stockholder has paid for shares of any class of Voting Stock with varying
forms of consideration, the form of consideration to be received per share
by holders of shares of such class of Voting Stock shall be either cash or
the form used to acquire the largest number of shares of such class of
Voting Stock previously acquired by the Interested Stockholder. The price
determined in accordance with Paragraphs B(i) and B(ii) of this Section 2
shall be subject to appropriate adjustment in the event of any stock
dividend, stock split, combination of shares or similar event.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(a) except as approved by a majority of the Disinterested Directors, there
shall have been no failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on the outstanding
stock having a preference over the Common Stock as to dividends or upon
liquidation; (b) there shall have been (1) 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 (2) an increase in such annual rate of
dividends (as necessary to prevent any such reduction) in the event 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 is approved by a majority of the Disinterested
Directors; and (c) such Interested Stockholder shall have not become the
beneficial owner of any additional shares of Voting Stock except as part of
the transaction which results in such Interested Stockholder becoming an
Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately, solely in such
Interested Stockholder's capacity as a stockholder of the Corporation), of
any loans, advances, guarantees, pledges or other financial assistance or
any tax credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business Combination
or otherwise.
(vi) 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 all
public stockholders 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).
Section 3. CERTAIN DEFINITIONS. For the purpose of this Article VI:
A. A "person" shall mean any individual, firm, group, corporation,
partnership, or other entity.
B. "Interested Stockholder" shall mean any person (other than the Corporation
or any Subsidiary) who or which:
(i) is the beneficial owner directly or indirectly, of 10% or more
of the voting power of the then 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 10% or more of the voting
power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to beneficial
ownership of any shares of Voting Stock which were at any time within the
two-year period immediately prior to the date in question
3
<PAGE>
beneficially owned by any Interested Stockholder, 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:
(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, or to direct
the voting of, pursuant to any agreement, arrangement or understanding or
otherwise; or
(iii) which is 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
Stockholder pursuant to Paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned by such
person through application of Paragraph C of this Section 3 but shall not
include any other shares of Voting Stock which may be issuable to other persons
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
E. "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 January 1, 1985.
F. "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 purpose of the definition of Interested Stockholder set
forth in Paragraph B of this Section 3, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of Equity Security is owned,
directly or indirectly, by the Corporation.
G. "Disinterested Director" means any member of the Board of Directors
who is unaffiliated with, and not a nominee of, any Interested Stockholder and
was a member of the Board of Directors immediately prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Disinterested Director who is unaffiliated with and not a nominee of, any
Interested Stockholder 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: (a) 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 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 highest closing sale price or bid
quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System 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 Board of Directors in
good faith; and (b) in the case of stock of any class or series that is not
traded on any securities exchange or in the over-the-counter market or in the
case of property other than cash or stock, the Fair Market Value of such stock
or property, as the case may be, on the date in question as determined by a
majority of the Board of Directors in good faith.
I. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used in
Paragraphs B(i) and B(ii) of Section 2 of this Article VI shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
4
<PAGE>
J. "Equity Security" shall have the meaning ascribed to such term in
Section 3(a) (11) of the Securities Exchange Act of 1934 as in effect on January
1, 1985.
Section 4. POWERS OF THE BOARD OF DIRECTORS. A majority of the Directors
shall have the power and duty to determine, on the basis of information known to
them after reasonable inquiry, all facts necessary to determine compliance with
this Article VI, including, without limitation, (a) whether a person in an
Interested Stockholder, (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, (d) whether the requirements of Section 2B of this Article VI
have been met with respect to any Business Combination and (e) whether the
assets which are the subject of any Business Combination have or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of $100,000,000 or more.
Section 5. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED STOCKHOLDERS.
Nothing contained in this Article VI shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
Section 6. AMENDMENTS. In addition to any requirement of law and any
other provisions of the Restated Certificate of Incorporation or any resolution
or resolutions of the Board of Directors adopted pursuant to Article IV of the
Restated Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, the Restated Certificate of
Incorporation, By-Laws or any such resolution or resolutions), the affirmative
vote of the holders of 70% or more of the combined voting power of the then
outstanding shares of Voting Stock voting together as a single class, shall be
required to amend, alter or repeal, or adopt any provisions inconsistent with,
this Article VI or any provisions thereof.
RESOLVED: That the following article shall be added as a new Article
VII to the Restated Certificate of Incorporation as amended, of the
Company:
ARTICLE VII
Section 1. VOTE REQUIRED FOR PREVENTION OF "GREENMAIL". Any direct or
indirect purchase or other acquisition by the Corporation of any shares of any
Voting Stock (as hereinafter defined) of the Corporation from any Selling
Securityholder (as hereinafter defined) who has beneficially owned any of such
shares of Voting Stock for less than two years prior to the date of such
purchase or other acquisition or any agreement in respect thereof, shall, except
as hereinafter expressly provided in Section 2 of this Article VII, require the
affirmative vote of the holders of not less than a majority of the voting power
of the then outstanding shares of Voting Stock, excluding Voting Stock
beneficially owned by such Selling Security holder, voting together as a single
class (it being understood that for the purposes of this Article VII, each share
of the Voting Stock not beneficially owned by such selling Securityholder shall
have the number of votes granted to it pursuant to Article IV of the Restated
Certificate 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 any agreement with any national
securities exchange, or otherwise.
Section 2. WHEN VOTE IN SECTION 1 IS NOT REQUIRED. The provisions of
Section 1 of this Article VII shall not be applicable to any purchase or other
acquisition by the Corporation form a Selling Securityholder of shares of Voting
Stock owned by said Selling Securityholder which purchase or acquisition is made
as part of a tender or exchange offer by the Corporation to purchase Voting
Stock of the same class made on the same terms to all holders of such Voting
Stock and complying with the applicable requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations), or for the purchase from
any Selling Securityholder of shares of Voting Stock by the Corporation at the
Fair Market Value thereof, as hereinafter defined, but any such purchase or
acquisition shall require only such affirmative vote as may be required by law
or any other provision of this Restated Certificate of Incorporation, or
otherwise.
Section 3. CERTAIN DEFINITIONS. For the purpose of this Article VII:
A. A "person" shall mean any individual, firm, partnership, corporation
or other entity.
B. "Selling Securityholder" shall mean any person (other than the
Corporation or any corporation of which a majority of any class of Voting Stock
is owned, directly or indirectly, by the Corporation) who or which:
5
<PAGE>
(i) is the beneficial owner, directly or indirectly, of 5% or
more of the class of Voting Stock to be acquired; 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 5% or more of the class
of Voting Stock to be acquired; or
(iii) is an assignee or has otherwise succeeded to any shares of
the class of Voting Stock to be acquired which were at any time within
the two-year period immediately prior to the date in question
beneficially owned by a Selling Securityholder, 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 Acts of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock of any
class of the Corporation:
(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) any right to vote or direct the voting of pursuant to any
agreement, arrangement or understanding; or
(iii) which is 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 Voting Stock
of any class of the Corporation.
D. For the purpose of determining whether a person is a Selling
Securityholder pursuant to Paragraph B of this Section 3, the relevant class of
Voting Stock outstanding shall be deemed to comprise all shares of Voting Stock
deemed owned through application of Paragraph C of this Section 3, but shall not
include other shares of Voting Stock of such class which may be issuable to
other persons pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings ascribe
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on January 1, 1985.
F. "Voting Stock" shall mean capital stock of the Corporation entitled to
vote generally in the election of Directors of the Corporation.
G. "Fair Market Value" as used in Section 2 of this Article VII means the
highest closing sale price during the 30-day period immediately preceding the
date in question of a share of such Voting Stock on the Composite Tape for New
York Stock Exchange-Listed Stocks, or, if such Voting Stock is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such Voting Stock is not
listed on such Exchange, the highest closing bid quotations with respect to a
share of such Voting Stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System 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
Voting Stock as determined by a majority of the Board of Directors of the
Corporation in good faith.
SECOND: That thereafter, pursuant to resolutions of its Board of
Directors, the Annual Meeting of the Shareholders of said Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendments.
6
<PAGE>
THIRD: That said amendments were duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware. That this Certificate of Amendment of the Restated Certificate of
Incorporation shall be effective on April 3, 1985.
IN WITNESS WHEREOF, said Dresser Industries, Inc. has caused this
certificate to be signed by Lillian Edwards, its Vice President, and attested by
Rebecca Morris, its Assistant Secretary, this 1st day of April, 1985.
DRESSER INDUSTRIES, INC.
/s/ LILLIAN EDWARDS
--------------------------------------
Lillian Edwards
Vice President
ATTEST:
BY: /s/ REBECCA MORRIS
------------------
Rebecca Morris
Assistant Secretary
7
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
DRESSER INDUSTRIES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of Dresser Industries,
Inc. resolutions were duly adopted setting forth a proposed amendment to the
Restated Certificate of Incorporation, as amended, of said corporation,
declaring said amendment to be advisable and calling a metting of the
shareholders of said corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED: That Section A of Article IV of the Restated Certificate of
Incorporation, as amended, of this Company be, and it hereby is,
amended in its entirety to read as follows:
"A. Authorized Share and Classes of Stock. The total number of
shares of all classes of stock which the Corporation shall
have authority to issue is two hundred ten million
(210,000,000) shares, which shall be divided into two
classes as follows: ten million (10,000,000) shares of
Preferred Stock without par value and two hundred million
(200,000,000) shares of Common Stock of the par value of
twenty-five cents (25 CENTS) each."
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
a Special Meeting of the Shareholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware. That this Certificate of Amendment of the Restated Certificate of
Incorporation, as amended, shall be effective on October 16, 1980.
IN WITNESS WHEREOF, said Dresser Industries, Inc. has caused this
certificate to be signed by D. D. Rost, its Executive Vice President, and
attested by Lillian Edwards, its Secretary, this 15th day of October, 1980.
DRESSER INDUSTRIES, INC.
By: /s/ D.D. Rost
-----------------------------
D. D. Rost
Executive Vice President
CORPORATE SEAL
ATTEST:
<PAGE>
By: /s/ Lillian Edwards
-------------------------------
Lillian Edwards
Secretary
2
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
DRESSER INDUSTRIES, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That at a meeting of the Board of Directors of Dresser Industries,
Inc. resolutions were duly adopted setting forth a proposed amendment to the
Restated Certificate of Incorporation of said corporation, declaring said
amendment to be advisable and calling a meeting of the shareholders of said
corporation for consideration thereof. The resolution setting forth the
proposed amendment is as follows:
RESOLVED: That Section A of Article IV of the Restated Certificate of
Incorporation of this Company be, and it hereby is, amended in its
entirety to read as follows:
"A. Authorized Shares and Class of Stock. The total number of
shares of all classes of stock which the Corporation shall
have authority to issue is seventy million (70,000,000)
shares, which shall be divided into two classes as follows:
ten million (10,000,000) shares of Preferred Stock without
par value and sixty million (60,000,000) shares of Common
Stock of the par value of twenty-five cents (25 CENTS) each."
SECOND: That thereafter, pursuant to resolution of its Board of Directors,
the Annual Meeting of the Shareholders of said corporation was duly called and
held, upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware. That this Certificate of Amendment of the Restated Certificate of
Incorporation shall be effective on March 16, 1976.
IN WITNESS WHEREOF, said Dresser Industries, Inc. has caused this
certificate to be signed by J. V. James, its President, and attested by Lillian
Edwards, its Secretary, this 16th day of March, 1976.
DRESSER INDUSTRIES, INC.
By: /s/ J. V. James
-----------------------------
J. V. James
President
CORPORATE SEAL
ATTEST:
<PAGE>
By: /s/ Lillian Edwards
------------------------------
Lillian Edwards
Secretary
2
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
DRESSER INDUSTRIES, INC.
DRESSER INDUSTRIES, INC., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Dresser Industries, Inc., and the name
under which the corporation was originally incorporated is Ervay Street
Corporation.
The date of filing its original Certificate of Incorporation with the
Secretary of State was April 23, 1996.
2. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
this corporation as heretofore amended or supplemented and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or supplemented
heretofore is hereby restated without further amendments or changes to read as
herein set forth in full:
ARTICLE I
The name of the Corporation shall be "Dresser Industries, Inc."
ARTICLE II
The principal office of the Corporation shall be in the City of Wilmington,
County of New Castle, State of Delaware, and the name of the Resident Agent in
charge thereof is The Corporation Trust Company, whose address is 100 West Tenth
Street, Wilmington, Delaware.
ARTICLE III
The nature of the business and purposes to be conducted or promoted by the
Corporation is any lawful act or activity, including but not limited to
manufacturing, for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
A. Authorized Shares and Classes of Stock.
<PAGE>
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is forty million (40,000,000) shares, which shall
be divided into two classes as follows: ten million (10,000,000) shares of
Preferred Stock without par value and thirty million (30,000,000) shares of
Common Stock of the par value of twenty-five cents (25 CENTS) each.
B. Designations, Powers, Preferences and Rights in
Respect of the Shares of Preferred Stock (as set
forth in Exhibit A of Agreement of Merger filed
October 26, 1967).
(a) Shares of Preferred Stock may be issued in one or more series at such
time or times and for such consideration or considerations as the Board of
Directors may determine. All shares of any one series shall be of equal rank
and identical in all respects.
(b) Authority is hereby expressly granted to the Board of Directors to fix
from time to time, by resolution or resolutions providing for the issue of any
series of Preferred Stock, the designation of such series and the power,
preferences and rights of the shares of such series, and the qualifications,
limitations or restrictions thereof, including the following:
(i) The distinctive designation and number of shares compromising such
series, which number may (except where otherwise provided by the Board of
Directors in creating such series) be increased or decreased (but not below the
number of shares then outstanding) from time to time by like action of the Board
of Directors;
(ii) The dividend rate or rates on the shares of such series and the
preferences, if any, over any other series (or of any other series over such
series) with respect to dividends, the terms and conditions upon which dividends
shall be payable, whether and upon what conditions such dividends shall be
cumulative and, if cumulative, the date or dates from which dividends shall
accumulate;
(iii) Whether or not the shares of such series shall be redeemable, the
limitations and restrictions with respect to such redemptions, the time or times
when, the price or prices at which and the manner in which such shares shall be
redeemable, including the manner of selecting shares of such series for
redemption if less than all shares are to be redeemed, the rights of the holders
of shares of such series called for redemption and any other terms and
conditions of such redemption;
(iv) The rights to which the holders of such series shall be entitled, and
the preferences, if any, over any other series (or of any other series over such
series), upon the voluntary, or involuntary liquidation, dissolution or winding
up of the Corporation, which rights may vary depending on whether such
liquidation, dissolution or winding up is voluntary or involuntary, and, if
voluntary, may vary at different dates;
(v) Whether or not the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund, and, if so, whether and
upon what conditions such purchase, retirement or sinking fund shall be
cumulative or noncumulative, the extent to which and the manner in which such
fund shall be applied to the purchase or redemption of the shares of such series
for retirement or to other corporate purposes and the terms and provisions
relative to the operation thereof;
(vi) Whether or not the shares of such series shall be convertible into or
exchangeable for shares of stock of any other class or classes, or of any other
series of the same class and, if so convertible or exchangeable, the price or
prices or the rate or rates of conversion or exchange and the method, if any, of
adjusting the same, and any other terms and conditions of such conversion or
exchange;
(vii) The voting powers, full and/or limited, if any, of the shares of such
series; and whether or not and under what conditions the shares of such series
(alone or together with the shares of one or more other series having similar
provisions) shall be entitled to vote separately as a single class, for the
election of one or more additional directors of the Corporation in case of
dividend arrearages or other specified events, or upon other matters;
2
<PAGE>
(viii) Whether or not the issuance of any additional shares of such series,
or of any shares of any other series, shall be subject to restrictions as to
issuance, or as to the powers, preferences or rights of any such other series;
(ix) Whether or not the holders of shares of such series shall be entitled
to subscribe for or purchase any part of any new or additional issue of stock of
any class or of securities convertible into stock of any class and, if so
entitled, the qualifications, conditions, limitations and restrictions of such
right; and
(x) Any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of such series, as the Board of Directors may deem advisable and
as shall not be inconsistent with the provisions of this Certificate of
Incorporation.
(c) The shares of each series of Preferred Stock shall entitle the holders
thereof to receive, when, as and if declared by the Board of Directors out of
funds legally available for dividends, cash dividends at the rate, under the
conditions, for the periods and on the dates fixed by the resolution or
resolutions of the Board of Directors pursuant to authority granted in this
Section B, for each series, and no more, before any dividends on the Common
Stock, other than dividends payable in Common Stock, shall be paid or set apart
for payment. If and so long as dividends are not paid in full, or declared in
full and set apart for the payment thereof, on all outstanding series of
Preferred Stock which rank equally as to dividends, then no dividends shall be
paid, or declared and set apart for payment, on any particular series of such
Preferred Stock, unless dividends shall be or have been paid, or declared and
set apart for payment, ratably on all shares of Preferred Stock of all series
ranking equally as to dividends with such particular series, so that the amount
of dividends per share declared on such particular series shall bear the same
ratio to the aggregate amounts per share declared on all such series as the
annual dividend rate of such particular series shall bear to the aggregate
annual dividend rates of all such series; provided, however, that this provision
shall not operate to permit or require the declaration or payment of dividends
on any series of such Preferred Stock except to the extent that the dividends
accrued or in arrears thereon shall at such times be unpaid. The term
"dividends accrued or in arrears", as used herein shall be deemed to mean, in
the case of cumulative Preferred Stock of any such series, an amount which shall
be equal to dividends at the annual dividend rate per share for the respective
series from the date or dates on which such dividends commence to accrue to the
end of the then current quarterly dividend period for such series, less the
amount of all dividends theretofore paid upon the shares of such series, and in
the case of noncumulative Preferred Stock of any such series shall be deemed to
mean dividends for the then current dividend payment period at the rate provided
for such series. The Preferred Stock shall not be entitled to participate in
any dividends declared and paid on the Common Stock, whether payable in cash,
stock or otherwise. Accruals of dividends shall not bear interest.
(d) Shares of Preferred Stock which have been redeemed or converted, or
which have been issued and reacquired in any manner and retired, shall have the
status of authorized and unissued Preferred Stock and may be reissued by the
Board of Directors as shares of the same or any other series, unless otherwise
provided with respect to any series in the resolution of the Board of Directors
creating such series.
(e) In the event of any voluntary of involuntary liquidation, dissolution
or winding up of the Corporation, the holders of the shares of each series of
the Preferred Stock then outstanding shall be entitled to receive out of the net
assets of the Corporation, but only in accordance with the preferences, if any,
provided for such series, before any distribution or payment shall be made to
the holders of the Common Stock, the amount per share fixed by the resolution or
resolutions of the Board of Directors to be received by the holders of shares of
each such series on such voluntary or involuntary liquidation, dissolution or
winding up, as the case may be. If such payment shall have been made in full,
to the holders of all outstanding Preferred Stock of all series, or duly
provided for, the remaining assets of the Corporation shall be available for
distribution among the holders of the Common Stock. If upon any such
liquidation, dissolution or winding up, the net assets of the Corporation
available for distribution among the holders of any one of more series of the
Preferred Stock which (x) are entitled to a preference over the holders of the
Common Stock upon such liquidation, dissolution or winding up, and (y) rank
equally in connection therewith, shall be insufficient to make payment in full
of the preferential amount to which the holders of such shares shall be
entitled, then such assets shall be distributed among the holders of each such
series of the Preferred Stock ratably according to the respective amounts to
which they would be entitled in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such shares were paid
in full. Neither the consolidation or merger of the Corporation, nor the sale,
lease or conveyance of all or part of its assets, shall be deemed a liquidation,
dissolution or winding up of the Corporation within the meaning of the foregoing
provisions.
3
<PAGE>
(f) Unless and except to the extent otherwise required by law or provided
in the resolution or resolutions of the Board of Directors pursuant to this
Section B, the shares of Preferred Stock shall have no voting power with respect
to any matter whatsoever, including, but not limited to, any action to
(i) increase the authorized number of shares of the Preferred Stock or of
any series thereof,
(ii) create shares of stock of any class ranking prior to or on a parity
with any series of the Preferred Stock with respect to any preferences or
voting powers, or
(iii) authorize a new series of the Preferred Stock having preferences or
voting powers ranking prior to or on a parity with any series of the Preferred
Stock with respect to any preferences or voting powers.
C. Limitations, Relative Rights and Powers in Respect
of Shares of Common Stock.
(1) After the requirements with respect to preferential dividends, if any,
on the Preferred Stock (fixed pursuant to Section B) shall have been met and
after the Corporation shall have complied with all the requirements, if any,
with respect to the setting aside of sums as purchase, retirement, or sinking
funds (fixed pursuant to Section B), then and not otherwise the holders of
Common Stock shall be entitled to receive such dividends as may be declared from
time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any, (fixed
pursuant to Section B) to be distributed to the holders of Preferred Stock in
the event of the voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the Common Stock shall be entitled to receive
all the remaining assets of the corporation of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may be otherwise required by law or by this Certificate of
Incorporation, each holder of Common Stock shall have one vote in respect of
each share of stock held by him on all matters voted upon by the stockholders.
ARTICLE V
In furtherance and not in limitation of the powers conferred under the
corporation laws of Delaware, the Board of Directors of the Corporation is
expressly authorized to make by-laws not inconsistent with law or with its
certificate of incorporation, relating to the business of the corporation, the
conduct of its affairs, and its rights or powers or the rights or powers of its
stockholders, directors, officers or employees, and to alter, amend or repeal
same from time to time.
4
<PAGE>
4. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General Corporation Law
of the State of Delaware.
5. This Restated Certificate of Incorporation shall be effective on
October 1, 1975.
IN WITNESS WHEREOF, said Dresser Industries, Inc. has caused this
certificate to be signed by J. V. James, its President, and attested by J. D.
Mayson, its Secretary, this 24th day of September, 1975.
DRESSER INDUSTRIES, INC.
By: /s/ J. V. James
-----------------------------
J. V. James, President
ATTEST:
By: /s/ J. D. Mayson
-----------------------------
J. D. Mayson, Secretary
5
<PAGE>
EXHIBIT 10
DRESSER INDUSTRIES, INC., LETTERHEAD
February 20, 1996
Mr. John Gavin
10263 Century Woods Drive
Los Angeles, CA 90067-6312
Dear Ambassador Gavin:
The purpose of this letter is to set forth the agreement we have reached under
which you will chair the Dresser Industries de Mexico Advisory Board effective
February 1, 1996.
1. The term of this agreement is November 1, 1995 through October 31, 1996 and
may be renewed for successive yearly periods by mutual written consent.
However, this agreement may be terminated at the close of any month by
written notice at least ten days prior to the end of the month.
2. During the term of this agreement and any extension, you agree to perform
such services for the benefit of Dresser Industries, Inc. as we shall
mutually determine from time to time. Pursuant to our prior discussions,
these services would generally cover certain areas of the Mexican economy,
its business environment, and your expertise regarding business
opportunities in Mexico.
3. Your fee will be US $10,000 per quarter paid quarterly in advance.
4. Reimbursement of your travel, lodging and other costs incurred in
connection with your services under this agreement shall be made upon
presentation of your invoice or statement setting forth such costs.
5. You understand and agree that you are not an agent or employee of Dresser
by virtue of this agreement, and accordingly are not eligible for regular
group or travel insurance or any other employee benefits.
6. Finally, it is recognized that some of the work you will be called upon to
perform hereunder, as well as information furnished you by us in connection
therewith, is highly confidential. The Company asks and you agree that any
and all such information developed or secured during the performance of
services under this agreement shall be considered by you to be confidential
and the exclusive property of Dresser and shall not now or at any time
hereafter be published, stated, or used by you for any purpose without
Dresser's prior written consent.
<PAGE>
If you agree to perform services as outlined above, please so indicated by
signing and returning to me the copy of this letter provided for that purpose.
Sincerely,
DRESSER INDUSTRIES, INC.
By: /s/ William E. Bradford
---------------------------------
William E. Bradford
President and Chief Executive Officer
Date: 2/20/96
ACCEPTED:
/s/ John Gavin
- -------------------------
John Gavin
Date: 22 February, 1996
