SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 10-K/A
Annual Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
For the Fiscal Year Ended December 31, 1994, Commission File Number 0-13425
PREMIER FINANCIAL SERVICES, INC.
(Exact name of registrant as specified in its Charter)
Delaware 36-2852290
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
27 W. Main Street 61032
Freeport, Illinois (Zip Code)
(Address of Principal executive
offices)
Registrant's telephone number, including area code (815) 233-3671
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $5.00 par value
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in the definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
Aggregate market value of voting stock held by non-affiliates of the registrant
as of February 28, 1995, based upon the average bid and asked price at this
date:
$40,573,736.00
At February 28, 1995, the registrant had outstanding 6,522,178 shares of its
common stock, $5.00 par value.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the 1994 Annual Report to Shareholders are incorporated by reference
into Part II of the Form 10-K. Portions of the Proxy Statement for Registrant's
1995 Annual Meeting of Shareholders to be held April 27, 1995 has been
incorporated by reference into Part III of the Form 10-K.
No. of Pages Sequentially Numbered: 27
Exhibit Index is on Page 26
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
1. In addition to the exhibits filed March 23, 1995 as a part of Premier
Financial Services, Inc.'s Form 10-K for the year ended December 31, 1994,
the Registrant's amended Articles of Incorporation is filed as exhibit 3(i)
of this report.
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) 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.
Premier Financial Services, Inc.
D.L. Murray
By: D. L. Murray, Executive
Vice President, Chief
Financial Officer and Director
Date: March 5, 1995
RESTATED CERTIFICATE OF INCORPORATION
OF
PREMIER FINANCIAL SERVICES, INC.
ARTICLE FIRST. Name. The name of the Corporation is
PREMIER FINANCIAL SERVICES, INC.
ARTICLE SECOND. Registered Agent. The registered office of the
Corporation in the State of Delaware is located at 229 South State
Street, in the City of Dover, County of Kent. The name of its
registered agent at such address is United States Corporation
Company.
ARTICLE THIRD. Purpose. The purpose of the Corporation is to
engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of
Delaware.
ARTICLE FOURTH. Authorized Stock. The total number of shares of
Stock which the Corporation shall have authority to issue is
Sixteen Million (16,000,000) shares, of which One Million
(1,000,000) shares shall be Preferred Stock of the par value of
$1.00 per share (hereinafter sometimes referred to as "Preferred
Stock"), and Fifteen Million (15,000,000) shares shall be shares of
Common Stock of the par value of $5.00 per share (hereinafter
sometimes referred to as "Common Stock").
PART I
PREFERRED STOCK
The Board of Directors is expressly authorized to adopt,
from time to time, a resolution or resolutions providing for the
issue of Preferred Stock in one or more series and to fix the
designations and the powers, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof, of each such
series. The authority of the Board of Directors with respect to
each such series shall include a determination of the following
(which may vary as between the different series of Preferred
Stock):
EXHIBIT A
(a) The number of shares constituting the series and the
distinctive designation of the series;
(b) The dividend rate on the shares of the series, the
conditions and dates upon which dividends thereon shall be payable,
the extent, if any, to which dividends thereon shall be cumulative,
and the relative rights of preference, if any, of payment or
dividends thereon;
(c) Whether or not the shares of the series are redeemable
and, if redeemable, including whether such shares shall be
redeemable for cash, property or rights or any combination thereof
and the times during which such shares shall be redeemable and the
amount per share payable in case of redemption, which amount may,
but need not, vary according to the time and circumstances of such
action;
(d) The amount payable in respect of the shares of the
series, in the event of any liquidation, dissolution or winding up
of the Corporation, which amount may, but need not, vary according
to the time or circumstances of such action, and the relative
rights of preference, if any, of payment of such amount;
(e) Any requirements as to a sinking fund for the shares of
the series, or any requirements as to the redemption, purchase or
other retirement by the Corporation of the shares of the series;
(f) The right, if any, to exchange or convert shares of the
series into shares of any other series or class of Stock of the
Corporation and the rate or basis, time, manner and condition of
exchange or conversion;
(g) The voting rights, if any, to which the holders of shares
of the series shall be entitled, which may include the right to
more or less than one vote per share on any matter; and
(h) Any other term, condition or provision [not involving any
further participation in the assets or profits of the Corporation
other than as permitted and provided for pursuant to the provisions
of paragraphs (b), (c), (d), (e) and (f) of this Part I] with
respect to the series as the Board of Directors may deem advisable
and as shall not be inconsistent with the provisions of this
Article Fourth.
PART II
COMMON STOCK
(a) Dividends. Subject to any rights to receive dividends to
which the holders of any outstanding Preferred Stock may be
entitled, the holders of the Common Stock shall be entitled to
receive dividends, if and when declared payable from time to time
by the Board of Directors from any funds legally available
therefor.
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(b) Liquidation. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts
and other liabilities of the Corporation and the preferential
amounts to which the holders of any outstanding Preferred Stock
shall be entitled, the holders of the Common Stock shall be
entitled to share ratably in the remaining assets of the
Corporation. The merger or consolidation of the Corporation into
or with any other corporation, or the merger of any other
corporation into it, or a sale of all or substantially all of the
assets of the Corporation, or any purchase or redemption of shares
of Stock of the Corporation of any class, shall not be deemed to be
a liquidation, dissolution or winding up of the Corporation for
purposes of this paragraph (b).
(c) Voting. Each outstanding share of Common Stock of the
Corporation shall entitle the holder thereof to one vote, and,
except as otherwise stated or expressed in a resolution or
resolutions adopted by the Board of Directors providing for the
issue of any Preferred Stock or as otherwise provided by law, the
exclusive voting power for all purposes shall be vested in the
holders of Common Stock.
PART III
GENERAL PROVISIONS
(a) No Stockholder Consents in Lieu of Voting. No action
required to be taken or which may be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically
denied.
(b) Right to Call Special Meetings. Special meetings of the
stockholders of the Corporation may be called only by the Board of
Directors; provided, however, that, notwithstanding the foregoing,
a special meeting of stockholders may be called by the holders of
at least 51% of the voting power of the then outstanding shares of
capital Stock of the Corporation entitled to vote generally in the
election of directors (the "Voting Stock") solely for the purpose
of removing a director or directors for cause [it being understood
that, for purposes of this paragraph (b), each share of the Voting
Stock shall have the number of votes granted to it pursuant to this
Article Fourth].
(c) Removal of Directors. No director may be removed from
office except for cause; provided, that, in addition to any
affirmative vote required by law or any other provision of this
Restated Certificate of Incorporation, the removal of any director
shall require the affirmative vote of the holders of at least 70%
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of the voting power of the then outstanding Voting Stock [it being
understood that, for purposes if this paragraph (c), each share of
the Voting Stock shall have the number of votes granted to it
pursuant to this Article Fourth], and such affirmative vote shall
be required notwithstanding the fact that a lesser percentage may
be specified by law or in any agreement with any national
securities exchange or otherwise.
ARTICLE FIFTH. Perpetual Existence. The Corporation is to have a
perpetual existence.
ARTICLE SIXTH. Board of Directors.
(a) In the furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
(i) to make, alter or repeal any By-Laws of The
Corporation and
(ii) to exercise all such powers and do all such acts as
may be exercised or done by the Corporation subject to the
provisions of the laws of the State of Delaware, this Restated
Certificate of Incorporation and the By-Laws of the
Corporation.
(b) The number of directors constituting the Board of
Directors of the Corporation shall be such number, not fewer than
five nor more than twenty, as shall be fixed from time to time by
resolution of the Board of Directors adopted by the affirmative
vote of at least a majority of all members thereof.
(c) The Board of Directors shall be and is divided into three
classes, Class I, Class II and Class III, which shall be as nearly
equal in number as possible. Each director shall serve for a term
ending on the date of the third annual meeting of stockholders of
the Corporation following the annual meeting at which such director
was elected; provided, however, that (1) each director in Class I
elected at the annual meeting of stockholders in 1988 shall hold
office until the annual meeting of stockholders in 1989, (2) each
director in Class II elected at the annual meeting of stockholders
in 1988 shall hold office until the annual meeting of stockholders
in 1990, and (3) each director in Class III elected at the annual
meeting of stockholders in 1988 shall hold office until the annual
meeting of stockholders in 1991.
(d) In the event of any increase or decrease in the
authorized number of directors, (1) each director then serving as
such shall nevertheless continue as a director of the class of
which he or she is a member until the expiration of his or her
current term, or his or her prior death, retirement, resignation,
or removal, and (2) the newly created or eliminated directorships
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resulting from such increase or decrease shall be apportioned by
the Board of Directors among the three classes of directors so as
to maintain such classes as nearly equal in number as possible.
(e) Notwithstanding any of the foregoing provisions of this
Article Sixth each director shall serve until his or her successor
is elected and qualified or until his or her death,, retirement,
resignation or removal. Should a vacancy occur or be created,
whether arising through death, retirement, resignation or removal
of a director or through an increase in the number of directors of
any class, such vacancy shall be filled by a majority vote of the
remaining directors of all classes then in office although less
than a quorum, or by the sole remaining director. A director so
elected to fill a vacancy shall serve for the remainder of the then
present term of office of the class in which the vacancy shall have
occurred or shall have been created.
(f) Nominations for the election of directors may be made by
the Board of Directors or by any stockholder entitled to vote for
the election of directors. Such nominations, other than those made
on behalf of the Board of Directors of the Corporation, shall be
made by notice in writing, delivered or mailed by first class
United States Postage, postage prepaid, to the Secretary of the
Corporation not fewer than 14 days nor more than 60 days prior to
any meeting of the stockholders called for the election of
directors; provided, however, that, if fewer than 21 days' notice
of the meeting is given to stockholders, such written notice shall
be delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of business on the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Each notice shall set forth (1) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (2) the principal occupation or employment
of each such nominee and (3) the number of shares of Stock of the
Corporation beneficially owned by each such nominee and by the
nominating stockholder. The Chairman of the meeting may, if the
facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing procedure,
and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
(g) Notwithstanding any of the foregoing provisions of this
Article Sixth, whenever the holders of any outstanding class or
series of Preferred Stock shall have the right, voting separately
by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be
governed by the terms of this Restated Certificate of Incorporation
and of the resolution of the Board of Directors providing for the
issue of such class or series of Preferred Stock applicable
thereto, and such directors so elected shall not be divided into
classes pursuant to this Article Sixth, unless expressly provided
by such terms.
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(h) The Board of Directors, by resolution adopted by the
affirmative vote of at least a majority of all members thereof,
shall have concurrent power with the stockholders to adopt, amend
or repeal the By-Laws of the Corporation; provided, however, that
the By-Laws of the Corporation shall not be adopted, amended or
repealed by the affirmative vote of the holders of at least 70% of
the voting power of the then outstanding Voting Stock, voting
together in a single class [it being understood that, for purposes
of this paragraph (h), each share of the Voting Stock shall have
the number of votes granted to it pursuant to Article Fourth
hereof], and such affirmative vote shall be required
notwithstanding the fact that a lesser percentage may be specified
by law or in any agreement with any national securities exchange or
otherwise.
(i) Wherever the term "Board of Directors" is used in this
Restated Certificate of Incorporation, such term shall mean the
Board of Directors of the Corporation; provided, however, that, to
the extent any committee of the directors of the Corporation is
lawfully entitled to exercise the powers of the Board of Directors,
such committee, to the extent provided by resolution of the Board
of Directors or the By-Laws, may exercise any power or authority of
the Board of Directors under this Restated Certificate of
Incorporation in the management of the business and affairs of the
Corporation.
(j) Elections of directors need not be by ballot unless the
By-Laws so provide.
ARTICLE SEVENTH. Exemption from Certain Liabilities. No director
of the Corporation shall be personally liable to the Corporation or
any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent that such
exemption from liability or limitation thereof is not permitted
under the General Corporation Law of the State of Delaware, as it
may be in effect from time to time. No amendment to or repeal of
this Article Seventh shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
ARTICLE EIGHTH. Indemnification. The Corporation shall indemnify
each person who is or was a director or officer of the Corporation
to the full extent permitted by the General Corporation Law of
Delaware, as it may be in effect from time to time.
ARTICLE NINTH. Certain Business Combinations.
(a) Higher Vote for Certain Business Combinations. In
addition to any affirmative vote required by law or any other
provision of this Restated Certificate of Incorporation, and except
as otherwise expressly provided in paragraph (b) of this Article
Ninth:
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(1) Any merger or consolidation of the Corporation or
any Subsidiary with
(A) any Interested Stockholder or
(B) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such
merger or consolidation would be, an Affiliate
of an Interested Stockholder; or
(2) Any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series
of transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate Fair Market
Value of $5 million or more; or
(3) The issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of
any securities of the Corporation or any Subsidiary to any
Interested 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 $5 million or more; or
(4) The adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of an Interested Stockholder or any Affiliate of any
Interested Stockholder; or
(5) Any reclassification of securities (including any
reverse Stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether or not with
or into or otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of an Interested
Stockholder;
shall require the affirmative vote of the holders of at least 70%
of the voting power of the then outstanding Voting Stock, voting
together as a single class [it being understood that, for purposes
of this paragraph (a), each share of the Voting Stock shall have
the number of votes granted to it pursuant to Article Fourth
hereof]. 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. The term "Business Combination",
as used in this Article Ninth, means any transaction which is
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referred to in any one or more of clauses (1) through (5) of this
paragraph (a).
(b) When Higher Vote is Not Required. The provisions of
paragraph (a) of this Article Ninth shall not be applicable to any
particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by
law or any other provision of this Restated Certificate of
Incorporation or the By-Laws of the Corporation, if all the
conditions specified in either subparagraph (b)(1) or (2) below are
met:
(1) Approval by Disinterested Directors. Such Business
Combination shall have been approved by a majority of the
Disinterested Directors.
(2) Price and Procedure Requirements. All of the
following conditions shall have been met:
(A) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of such
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
highest of the following:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder involved for any shares of
such class of Voting Stock acquired by it (I) within
the two-year period ending on the date of the first
public announcement of the proposal of such Business
Combination (the "Announcement Date") or (II) in the
transaction in which it became an Interested
Stockholder, whichever is higher;
(ii) (if applicable) an amount which bears
the same or a greater percentage relationship to the
Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the
Interested Stockholder involved became an Interested
Stockholder (such latter date is referred to in this
Article Ninth as the "Determination Date"),
whichever is higher, as the highest per share price
determined under subparagraph (b)(2)(A)(i) bears to
the Fair Market Value per share of Common Stock on
the first day within the two-year period ending on
the Announcement Date on which such Interested
Stockholder acquired beneficial ownership of any
share of Common Stock; and
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(iii) the Fair Market Value per share of
Common Stock on the Announcement Date or on the
Determination Date, whichever is higher.
(B) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of such
Business Combination of consideration other than cash to
be received per share by holders of shares of any class
if 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
subparagraph (b)(2)(B) shall be required to be met with
respect to each class of outstanding Voting Stock, other
than Common Stock, whether or not the Interested
Stockholder involved has previously acquired any shares
of such class of Voting Stock]:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the
Interested Stockholder involved for any shares of
such class of Voting Stock acquired by it (I) within
the two-year period ending on the Announcement Date
or (II) in the transaction in which it became an
Interested Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential
amount per share to which the holders of shares of
such class of Voting Stock are entitled in the event
of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(iii) (if applicable) an amount which bears
the same or a greater percentage relationship to the
Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the
Determination Date, whichever is higher, as the
highest per share price determined under
subparagraph (b)(2)(B)(i) bears to the Fair Market
Value per share of such class of Voting Stock on the
first day within the two-year period ending on the
Announcement Date on which the Interested
Stockholder involved acquired beneficial ownership
of any share of such class of Voting Stock; and
(iv) the Fair Market Value per share of such
class of Voting Stock on the Announcement Date or on
the Determination Date, whichever is higher.
(C) The consideration to be received by holders of
a particular class of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as the
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Interested Stockholder involved has previously paid for
shares of such class of Voting Stock. If such Interested
Stockholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of
consideration for such class of Voting Stock shall be
either cash or in the form used to acquire the largest
number of shares of such class of Voting Stock previously
acquired by it. The prices determined in accordance with
subparagraphs (b)(2)(A) and (b)(2)(B) shall be subject to
appropriate adjustment in the event of any Stock
dividend, Stock split, combination of shares or similar
event.
(D) After the Interested Stockholder involved has
become an Interested Stockholder and prior to the
consummation of such Business Combination: (i) there
shall have been (I) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary
to reflect any subdivision of the Common Stock), and (II)
an increase in such annual rate of dividends as necessary
to reflect 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 to increase such annual rate is approved
by a majority of the Disinterested Directors; and (ii)
such Interested Stockholder shall not have 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.
(E) After the Interested Stockholder involved has
become an Interested Stockholder, such Interested
Stockholder shall not have received the benefit, directly
or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other
financial assistance 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.
(F) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations)
shall be mailed to public 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).
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(c) Certain Definitions. For purposes of this Restated
Certificate of Incorporation :
(1) The term "person" means any individual, firm,
corporation or other entity.
(2) The term "Interested Stockholder" means any person
(other than the Corporation of any Subsidiary and other than
any profit-sharing, employee Stock ownership or other employee
benefit plan of the Corporation or any Subsidiary or any
trustee of or fiduciary with respect to any such plan when
acting in such capacity) who or which :
(A) is the beneficial owner, directly or
indirectly, of 10% or more of the voting power of the
outstanding Voting Stock; or
(B) is an Affiliate of the Corporation and at any
time within the two-year period ending on 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
(C) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time within
the two-year period ending on the date in question
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, as amended.
(3) A person shall be a "beneficial owner" of any Voting
Stock:
(A) which such person or any of his or its
Affiliates or Associates beneficially owns, directly or
indirectly; or
(B) which such person or any of his or its
Affiliates of Associates has (i) 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 (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or
(C) which are beneficially owned directly or
indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
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acquiring, holding, voting or disposing of any shares of
Voting Shares.
(4) For purposes of determining whether a person is an
Interested Stockholder pursuant to subparagraph (c)(2), the
number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through application of
subparagraph (c)(3) but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise. The phrase
"Interested Stockholder involved" means, in respect of any
Business Combination, the Interested Stockholder that, or
whose Affiliate, is a party to or otherwise involved (other
than merely as a stockholder of the Corporation) in such
Business Combination.
(5) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on March 1, 1988.
(6) The term "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 purposes of the definition of Interested Stockholder set
forth in subparagraph (c)(2), 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.
(7) The term "Disinterested Director" means, in respect
of any Business Combination, any member of the Board of
Directors who is unaffiliated with the Interested Stockholder
involved in such Business Combination and who was a member of
the Board of Directors prior to the time that such Interested
Stockholder became an Interested Stockholder, and any
successor of a Disinterested Director who is unaffiliated with
such Interested Stockholder and who is recommended to succeed
a Disinterested Director by a majority of Disinterested
Directors then on the Board of Directors.
(8) The term "Fair Market Value" means: (A) in the case
of Stock, the highest closing sale price during the 30-day
period ending on 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 bid
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quotation with respect to a share of such Stock during the 30-
day period ending on 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 the Board of Directors in
good faith; and (B) in the case of property other than cash or
Stock, the fair market value of such property on the date in
question as determined by the Board of Directors in good
faith.
(9) In the event of any Business Combination in which
the Corporation survives, the phrase "consideration other than
cash to be received", as used in subparagraphs (b)(2)(A) and
(b)(2)(B), shall include the shares of any Common Stock and
the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(d) Certain Powers of the Board of Directors. A majority of
the Board of Directors shall have the power and duty to determine,
for purposes of this Article Ninth, on the basis of information
known to them after reasonable inquiry, (1) whether a person is an
Interested Stockholder, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of another, and (4) 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 $5 million or
more. A majority of the Board of Directors shall have the further
power to interpret all of the terms and provisions of this Article
Ninth.
(e) No Effect on Fiduciary Obligations of Interested
Stockholders. Nothing contained in this Article Ninth shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
ARTICLE TENTH. Amendments and Repeal.
(a) Notwithstanding the fact that a lesser percentage vote
for the amendment or repeal of this Restated Certificate of
Incorporation shall be specified by law or in any agreement with
any national securities exchange or otherwise, and in addition to
any affirmative vote required by law or any other provision of this
Restated Certificate of Incorporation, the provisions of this
Article Tenth and of Articles Fourth through Ninth hereof may not
be amended or repealed in any respect, unless such action is
approved by the affirmative vote of holders of at least 70% of the
voting power of the then outstanding Voting Stock, voting together
as a single class [it being understood that, for purposes of this
paragraph (a), each share of the Voting Stock shall have the number
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of votes granted to it pursuant to Article Fourth hereof];
provided, however, that the foregoing provisions of this paragraph
(a) shall not be applicable to any particular proposal to amend or
repeal any provision of this Restated Certificate of Incorporation,
and such proposed amendment or repeal shall require only such
affirmative vote as is required by law or any other provision of
this Restated Certificate of Incorporation or the By-Laws of the
Corporation, if such proposed amendment or repeal shall have been
approved by resolution of the Board of Directors adopted by the
affirmative vote of at least 80% of all members thereof.
(b) Subject to paragraph (a) of this Article Tenth, the
Corporation reserves the right to amend, alter, change or repeal
any provision of this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by the laws of the State of
Delaware, and all rights and powers conferred herein upon
stockholders and directors are granted subject to this reservation.
All references herein to "this Restated Certificate of
Incorporation" shall be deemed to encompass this Restated
Certificate of Incorporation, as the same shall be amended from
time to time.
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