Exhibit 1
FOURTH. The total number of shares of all classes of stock which the
corporation shall have authority to issue is 6,560,117,376 shares,
consisting of 30,000,000 shares of Preferred Stock of the par value of One
Dollar ($1.00) each, 530,117,376 shares of Class B Stock of the par value
of One Cent ($0.01) each and 6,000,000,000 shares of Common Stock of the
par value of One Cent ($0.01) each.
The following is a statement of all of the designations and the
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of the three classes of the stock of the corporation:
SECTION 1.
VOTING POWERS AND RIGHTS.
1.1. Generally. All rights to vote and all voting power (including,
without limitation thereto, the right to elect directors) shall be vested
exclusively, in accordance with the provisions of subsections 1.1 through
1.7, inclusive, in the holders of Class B Stock and the holders of Common
Stock, voting together without regard to class, all except as otherwise
expressly provided by subsection 1.7 or by the Board of Directors pursuant
to subsection 9.1 or as otherwise expressly required by the law of the
State of Delaware.
1.2. Common Stock. At every meeting of the stockholders each holder
of Common Stock shall be entitled to one vote for each share of such stock
held by him.
1.3. Class B Stock. At every meeting of the stockholders each
holder of Class B Stock shall be entitled, for each share of such stock
held by him, to such number of votes (which may be or include a fraction of
a vote) as shall be determined in accordance with the provisions of this
subsection 1.3, which number of votes, so determined from time to time, is
hereinafter referred to as the "Class B voting power per share."
1.3a. 40% of Total Voting Power. Until the total number of
outstanding shares of Class B Stock shall first fall below
60,749,880, the Class B voting power per share shall be the
quotient derived by dividing the total number of outstanding shares
of Class B Stock into a number equal to two-thirds of the aggregate
number of votes which could be cast by the holders of all of the
outstanding shares of (i) Common Stock and (ii) Full Voting
Preferred Stock (as defined in subsection 9.2), if any, if they
were present at the meeting.
1.3b. 30% of Total Voting Power. From and after the time
when the total number of outstanding shares of Class B Stock shall
first fall below 60,749,880 and until such number shall first fall
below 33,749,932, the Class B voting power per share shall be the
quotient derived by dividing the total number of outstanding shares
of Class B Stock into a number equal to three-sevenths of the
aggregate number of votes which could be cast by the holders of all
of the outstanding shares of (i) Common Stock and (ii) Full Voting
Preferred Stock, if any, if they were present at the meeting.
1.3c. One Vote per Share Voting Power. From and after the
time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932, the Class B voting power per
share shall be one vote per share.
1.3d. Computations. The quotients referred to in this
subsection 1.3 shall be computed to the nearest one-thousandth of a
vote (or, if there be no nearest one-thousandth, shall be computed
to a ten-thousandth of a vote).
1.4. No Cumulative Voting. No stockholder shall be entitled to
exercise any right of cumulative voting. If, however, any stockholder
should at any time become entitled to exercise a right of cumulative
voting, whether by express requirement of the law of the State of Delaware
or otherwise, then at all elections of directors each holder of Class B
Stock shall be entitled to cast for each share of Class B Stock held by him
a number of votes equal to the Class B voting power per share then
exercisable (computed as provided in subsection 1.3), each holder of Common
Stock shall be entitled to cast one vote for each share of Common Stock
held by him, and each holder of Full Voting Preferred Stock, if any, of any
series shall be entitled to cast the number of votes (which may be one vote
or more or less than one vote) for each share of Full Voting Preferred
Stock held by him which the Board of Directors shall have determined
pursuant to subsection 9.1 in establishing voting rights with respect to
such series, in each case multiplied by the number of directors to be
elected, and each such holder shall be entitled to cast all of his votes
for a single director or to distribute them among the number of directors
to be voted for, or to cast his votes for any two or more of them as he may
see fit.
1.5. Quorum. At any meeting of stockholders, the presence in person
or by proxy of the holders of shares entitled to cast a majority of all of
the votes (computed, in the case of each share of Class B Stock, as
provided in subsection 1.3) which could be cast at such meeting by the
holders of all of the outstanding shares of stock of the corporation
entitled to vote on every matter that is to be voted on without regard to
class at such meeting shall constitute a quorum.
1.6. Manner of Voting. At every meeting of stockholders, the
holders of Class B Stock, the holders of Common Stock and the holders of
Full Voting Preferred Stock, if any, shall vote together, without regard to
class, and their votes (computed, in the case of each share of Class B
Stock, as provided in subsection 1.3) shall be counted and totaled
together; and at any meeting duly called and held at which a quorum
(determined in accordance with the provisions of subsection 1.5) is
present, a majority of the votes (computed, in the case of each share of
Class B Stock, as provided in subsection 1.3) which could be cast at such
meeting upon a given question by such holders who are present in person or
by proxy shall be necessary, in addition to any vote or other action that
may be expressly required by the provisions of this Certificate of
Incorporation or by the law of the State of Delaware, to decide such
question, and shall decide such question if no such additional vote or
other action is so required.
1.7. Class Vote by Class B Stock. Notwithstanding any of the other
provisions of this Section 1, the corporation shall not, until the total
number of outstanding shares of Class B Stock shall first fall below
33,749,932, take any of the following actions except with the affirmative
vote of the holders of a majority of the outstanding shares of Class B
Stock, given separately as a class, which vote shall be in addition to any
vote or other action required by the law of the State of Delaware:
(i) issue any additional shares of Class B Stock except
pursuant to an offer for subscription or purchase required by the
provisions of subsection 4.3 or for the purpose of payment of a
stock dividend; or
(ii) effect any reduction, by amendment of the Certificate
of Incorporation, retirement or exchange or otherwise, in the
number of outstanding shares of Class B Stock in any manner other
than by conversion into Common Stock as expressly provided in
Section 2 or through voluntary disposition thereof to the
corporation by a holder of shares of Class B Stock; or
(iii) effect any change or alteration in any provision of
this Article FOURTH, except as required by the provisions of
subsection 3.3; or
(iv) merge or consolidate with or into any other
corporation, or permit any other corporation to merge or
consolidate with or into it; or
(v) sell, lease or exchange all or substantially all of its
property and assets; or
(vi) transfer any assets to another corporation and in
connection therewith distribute stock or other securities of such
other corporation to the holders of stock or other securities of
this corporation; or
(vii) voluntarily dissolve or liquidate.
1.8. Preferred Stock. Each holder of Preferred Stock shall be
entitled to vote to the extent, if any, provided by the Board of Directors
pursuant to subsection 9.1.
SECTION 2.
OWNERSHIP AND CONVERSION OF CLASS B STOCK.
2.1. Ownership of Class B Stock. Until the time when the total
number of outstanding shares of Class B Stock shall first fall below
33,749,932, holders of shares of such stock may (i) sell or otherwise
dispose of or transfer any or all of the shares of such stock held by them,
respectively, only to persons who at the time of transfer meet the
qualifications set forth in clause (i), (ii), (iii), (iv), (v), (vi) or
(vii) of subsection 2.2, and to no other persons, or (ii) convert any or
all of such shares into shares of Common Stock for the purpose of effecting
the sale or disposition of such shares of Common Stock to any person as
provided in subsection 2.3. Until such time, no one other than those
persons in whose names shares of Class B Stock become registered on the
original stock ledger of the corporation by reason of their record
ownership of shares of Class A Common Stock or Class B Common Stock of the
corporation which are reclassified into shares of Class B Stock, or
transferees or successive transferees who at the time of transfer meet such
qualifications set forth in subsection 2.2, shall by virtue of the
acquisition of a certificate for shares of Class B Stock have the status of
an owner or holder of shares of Class B Stock or be recognized as such by
the corporation or be otherwise entitled to enjoy for his own benefit the
special rights and powers of a holder of shares of Class B Stock.
From and after the time when the total number of outstanding shares
of Class B Stock shall first fall below 33,749,932, holders of shares of
such stock may (i) sell or otherwise dispose of or transfer such shares to
any person or (ii) convert such shares into shares of Common Stock for any
purpose as provided in subsection 2.4, and any person may have the status
of an owner or holder of shares of Class B Stock.
Holders of shares of Class B Stock may at any and all times transfer to any
person the shares of Common Stock issuable upon conversion of such shares
of Class B Stock.
2.2. Transfers of Class B Stock on Corporate Books. Shares of Class
B Stock shall be transferred on the books of the corporation and a new
certificate therefor issued, upon presentation at the office of the
Secretary of the corporation (or at such additional place or places as may
from time to time be designated by the Secretary or any Assistant Secretary
of the corporation) of the certificate for such shares, in proper form for
transfer and accompanied by all requisite stock transfer tax stamps, only
if such certificate when so presented shall also be accompanied by an
affidavit of the record holder of such shares stating that such certificate
is being presented to effect a transfer of such shares to any one or more
of the following:
(i) a natural person who meets the qualification that he is
either (A) a natural person in whose name shares of Class B Stock
became registered on the original stock ledger of the corporation
by reason of his record ownership of shares of Class A Common Stock
or Class B Common Stock of the corporation which were reclassified
into shares of Class B Stock, or (B) a descendant (including any
descendant by adoption and any descendant of an adopted descendant)
of a natural person in whose name shares of Class B Stock were so
registered by reason of such record ownership, or (C) a spouse or
surviving spouse of a natural person who is or was while living
included within the provisions of either of the foregoing
subclauses (A) or (B); or
(ii) any two or more natural persons each of whom meets the
qualification set forth in clause (i) next above; or
(iii) a transferee as trustee of a trust, created by deed or
will, which trust meets the following requirements: (1) the income
thereof from the date of transfer to such trustee shall be required
to be paid to or applied for the use and benefit of or accumulated
for one or more natural persons, concurrently or successively, all
of whom meet or will meet the qualification set forth in clause (i)
above, and no other persons, except for such portion of the income
as is payable to or to be applied for the use and benefit of or
accumulated for one or more (A) other natural persons during terms
not to exceed their respective lives, who, though they do not meet
the qualification set forth in clause (i) above, are relatives of
or are or were employees or dependents of natural persons meeting
such qualification, or (B) exempt organizations (as defined in
subsection 2.7) for terms not exceeding 33 years from the date of
the commencement of the trust, and except for such accumulated
income as may be required to be paid over to others upon the death
of the person for whom it was accumulated, and (2) the principal
thereof shall be required to be transferred, assigned and paid over
upon failure or termination of the interests in the income thereof
referred to in subclause (1) above; provided, however, that if the
provisions of such trust relating to the disposition of income or
principal are subject to amendment in such manner that the trust
could be changed to a trust not meeting the requirements of this
clause (iii), the trustee thereof, as such, shall have entered into
a written agreement with the corporation providing that if such
trust shall be amended at any time prior to the time when the total
number of outstanding shares of Class B Stock shall first fall
below 33,749,932 such trustee will promptly deliver to the
corporation a copy, duly certified by such trustee, of the
instrument effecting such amendment and will, unless such trust as
so amended then meets the requirements of this clause (iii),
promptly surrender the certificates for the shares of Class B Stock
then held in such trust for conversion of such shares into an equal
number of shares of Common Stock in the manner set forth in
subsection 3.1; or
(iv) a stock corporation (hereinafter called a "corporate
holder"), not less than 75% of the number of outstanding shares of
each class of the capital stock (other than shares of non-voting
preferred stock as defined in subsection 2.7) of which shall, at
the time at which the certificate for shares of Class B Stock is
presented for transfer, be owned beneficially and of record by
natural persons who meet the qualification set forth in clause (i)
above (provided that the same natural person need not be both the
beneficial and the record owner), or be owned of record by trustees
(or successor trustees) of trusts which meet the requirements set
forth in clause (iii) above, or be so owned in part by such natural
persons and so owned in part by such trustees (or successor
trustees); which corporate holder shall have entered into a written
agreement with this corporation providing that if, at any time
prior to the time when the total number of outstanding shares of
Class B Stock shall first fall below 33,749,932, less than 75% of
the number of outstanding shares of each class of the capital stock
(other than shares of non-voting preferred stock as defined in
subsection 2.7) of such corporate holder shall be so owned, then
such corporate holder will either promptly (A) transfer the shares
of Class B Stock then held by it to one or more persons who at the
time of transfer meet the qualifications set forth in clause (i),
(ii), (iii), (iv), (v), (vi) or (vii) of subsection 2.2 and cause
the certificates therefor to be duly presented for transfer into
the name of such person or persons, or (B) surrender the
certificates for such shares of Class B Stock for conversion of
such shares into an equal number of shares of Common Stock, in the
manner set forth in subsection 3.1, or (C) transfer some of such
shares as provided in the foregoing subclause (A) and surrender the
certificates for the remainder of such shares for conversion as
provided in the foregoing subclause (B); or
(v) a legatee under the will of any stockholder of the
corporation deceased prior to the effective date of the
reclassification of the Class A Common Stock and the Class B Common
Stock of the corporation into Class A Stock, Class B Stock and
Common Stock, such transfer being made for the purpose of
satisfying, in any manner permitted by such will, all or any part
of the claim of the said legatee in respect to a legacy of any kind
under said will; provided, however, that the aggregate number of
shares of Class B Stock transferred pursuant to this clause (v)
shall not exceed 8,437,480; or
(vi) a transferee as successor trustee or as co-trustee of a
trust of which his immediate transferor was or is a trustee
registered as a record holder of such shares of Class B Stock as
permitted by the provisions of subsection 2.1; provided, however,
that if the proviso in clause (iii) above is applicable such
successor trustee or co-trustee shall have entered into a written
agreement with the corporation whereby he assumes the obligations
of the agreement required by said clause (iii); or
(vii) the corporation for the purpose of retirement pursuant
to the provisions of subsection 3.3; and if the certificate for
such shares of Class B Stock when presented for transfer shall also
be accompanied
(a) in the case of a transfer to a transferee as
trustee of a trust which meets the requirements set forth in
clause (iii) above, by copies, duly certified by such
trustee, of the instrument creating such trust and of all
amendments thereto, and by an original counterpart or
certified copy of any agreement required by said clause
(iii), or
(b) in the case of a transfer to a corporate holder
as defined in clause (iv) above, by a copy, duly certified
by the Secretary or an Assistant Secretary of such corporate
holder, of the list of its stockholders and their respective
holdings as shown on its stock books at the time at which
the certificate for shares of Class B Stock is presented for
transfer, and by an original counterpart or certified copy
of the agreement referred to in said clause (iv), or
(c) in the case of a transfer to a legatee described
in clause (v) above, by a copy of the will of the deceased
stockholder, duly certified by the clerk of the court in
which the same shall have been probated, or
(d) in the case of a transfer to a transferee as
successor trustee or co-trustee as permitted by clause (vi)
above, by an original counterpart or certified copy of any
agreement of such transferee required by said clause (vi).
From and after the time when the total number of outstanding shares
of Class B Stock shall first fall below 33,749,932, shares of Class B Stock
shall be transferable to any person without regard to the foregoing
provisions of this subsection 2.2.
2.3. Conversion of Class B Stock for the Purpose of Sale or Other
Disposition. A record holder of shares of Class B Stock shall be entitled
at any time and from time to time to convert any or all of such shares held
by him into the same number of shares of Common Stock in the manner set
forth in subsection 3.1, for the purpose of effecting the sale or other
disposition of such shares of Common Stock, by surrendering certificates
representing the shares of Class B Stock to be converted, in proper form
for transfer of the shares of Common Stock issuable upon such conversion
and accompanied by all stock transfer tax stamps requisite for such
transfer, and also accompanied by a written notice by such record holder to
the corporation stating that such record holder desires to convert such
shares of Class B Stock into the same number of shares of Common Stock for
the purpose of the sale or other disposition of such shares of Common Stock
and requesting that the corporation issue all of such shares of Common
Stock to persons (other than such record holder) named therein, setting
forth the number of shares of Common Stock to be issued to each such person
and the denominations in which the certificates therefor are to be issued.
Each such notice shall be signed by the record holder (or in an appropriate
case by his guardian, committee, executor, administrator or other legal
representative).
If a record holder of shares of Class B Stock shall deliver a
certificate for such shares, endorsed by him for transfer or accompanied by
an instrument of transfer signed by him, to a person who does not meet the
qualifications set forth in clause (i), (ii), (iii), (iv), (v), (vi) or
(vii) of subsection 2.2, then such person or any successive transferee of
such certificate may treat such endorsement or instrument as authorizing
him on behalf of such record holder to convert such shares in the manner
above provided for the purpose of the transfer to himself of the shares of
Common Stock issuable upon such conversion, and to give on behalf of such
record holder the written notice of conversion above required, and may
convert such shares of Class B Stock accordingly.
If such shares of Class B Stock shall improperly have been
registered in the name of such a person (or in the name of any successive
transferee of such certificate) and a new certificate therefor issued, such
person or transferee may surrender such new certificate for cancellation,
accompanied by the written notice of conversion above required, in which
case (A) such person or transferee shall be deemed to have elected to treat
the endorsement on (or instrument of transfer accompanying) the certificate
so delivered by such former record holder as authorizing such person or
transferee on behalf of such former record holder so to convert such shares
and so to give such notice, (B) the shares of Class B Stock registered in
the name of such former record holder shall be deemed to have been
surrendered for conversion for the purpose of the transfer to such person
or transferee of the shares of Common Stock issuable upon conversion, and
(C) the appropriate entries shall be made on the books of the corporation
to reflect such action.
2.4. Ultimate Convertibility of Class B Stock for Any Purpose. From
and after the time when the total number of outstanding shares of Class B
Stock shall first fall below 33,749,932, (i) each record holder of shares
of such stock may convert such shares into an equal number of shares of
Common Stock, irrespective of the purpose of such conversion, by
surrendering the certificates for such shares in the manner set forth in
subsection 3.1; and (ii) no additional shares of Class B Stock shall be
issued by the corporation, and the corporation shall promptly after such
time take such appropriate action as may be necessary to reduce the
authorized amount of Class B Stock to the number of shares then
outstanding.
2.5. Legend on Certificates for Class B Stock. Every certificate
for shares of Class B Stock shall bear a legend on the face thereof reading
as follows:
"The shares of Class B Stock represented by this certificate may
not be transferred to any person who does not meet the
qualifications set forth in clause (i), (ii), (iii), (iv), (v),
(vi) or (vii) of subsection 2.2 of Article FOURTH of the
Certificate of Incorporation of this corporation as amended
(Sections 1 to 10 of said Article FOURTH being set forth in full on
the reverse hereof) and no person who does not meet the
qualifications prescribed by subsection 2.1 of said Article FOURTH
is entitled to own or to be registered as the record holder of such
shares of Class B Stock, until the time referred to in said
subsection 2.1, but the record holder of this certificate may at
any time convert such shares of Class B Stock into the same number
of shares of Common Stock for the purpose of effecting the sale or
other disposition of such shares of Common Stock to any person.
Each holder of this certificate, by accepting the same, accepts and
agrees to all of the foregoing."
Any certificate for shares of Class B Stock which shall be issued
after the time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932 shall not bear such legend.
2.6. Violations of Subsections 2.1 and 2.2. In the event that the
Board of Directors of the corporation (or any committee of the Board of
Directors, or any officer of the corporation, designated for the purpose by
the Board of Directors) shall determine, upon the basis of facts not
disclosed in any affidavit or other document accompanying the certificate
for shares of Class B Stock when presented for transfer, that such shares
of Class B Stock have been registered in violation of the provisions of
subsection 2.1 or 2.2, or shall determine that a person is enjoying for his
own benefit the special rights and powers of shares of Class B Stock in
violation of such provisions, then the corporation shall take such action
at law or in equity as is appropriate under the circumstances. An
unforeclosed pledge made to secure a bona fide obligation shall not be
deemed to violate such provisions.
2.7. Definitions; Verification of Affidavits. For the purposes of
this Section 2, each reference to a "person" shall be deemed to include not
only a natural person, but also a corporation, partnership, association,
unincorporated organization or legal entity of any kind; each reference to
a "natural person" (or to a "record holder" of shares, if a natural person)
shall be deemed to include in his representative capacity a guardian,
committee, executor, administrator or other legal representative of such
natural person or record holder; the term "non-voting preferred stock" as
applied to stock in a corporate holder, shall mean stock which does not
entitle the holder thereto to vote for the election of directors under any
circumstances and carries no right to dividends or interest in earnings
other than the right to dividends in a fixed amount per annum, which right
may be cumulative; and the term "exempt organization" shall mean any
corporation, community chest, fund or foundation organized and operated
exclusively for religious, charitable, scientific, literary, or educational
purposes which, at the date of verification of the affidavit in which
reference thereto is made, shall have been exempted or be exempt, wholly or
partially, from taxation on income under the provisions of Section
501(c)(3) of the Internal Revenue Code of 1986, as then in effect, or other
provision of Federal law then in effect governing the exemption from
Federal taxation on income of institutions organized and operated
exclusively for any one or more of the foregoing purposes. Each affidavit
of a record holder furnished pursuant to subsection 2.2 shall be verified
as of a date not earlier than five days prior to the date of delivery
thereof, and, where such record holder is a corporation or partnership,
shall be verified by an officer of the corporation or by a general partner
of the partnership, as the case may be.
SECTION 3.
GENERAL PROVISIONS WITH RESPECT TO CONVERSIONS.
3.1. Manner of Effecting Conversions. Each conversion of shares of
Class B Stock into shares of Common Stock made pursuant to the provisions
of Section 2 shall be effected by the surrender of the certificate
representing the shares to be converted at the office of the Secretary of
the corporation (or at such additional place or places as may from time to
time be designated by the Secretary or any Assistant Secretary of the
corporation) in such form and accompanied by such notice, affidavits, other
documents and stock transfer tax stamps, if any, as may be prescribed by
and shall comply with the applicable provisions of Section 2, and upon such
surrender the record holder of such shares (or, in the case of a conversion
made for the purpose of effecting the sale, gift or other disposition of
the shares of Common Stock issuable upon such conversion, the person named
in the prescribed notice) shall be entitled to become, and shall be
registered in the original stock ledger of the corporation as, the record
holder of the number of shares of Common Stock issuable upon such
conversion, and each such share of Class B Stock shall be converted into
one share of Common Stock, as the Common Stock shall then be constituted,
and thereupon there shall be issued and delivered to such record holder or
other named person, as the case may be, promptly at such office or other
designated place, a certificate or certificates for such number of shares
of Common Stock.
3.2. Dividends. Upon any conversion of shares of Class B Stock into
shares of Common Stock pursuant to the provisions of Section 2, any
dividend, for which the record date shall be subsequent to such conversion,
which may have been declared on the shares of Class B Stock so converted
shall be deemed to have been declared, and shall be payable, with respect
to the shares of Common Stock into or for which such shares of Class B
Stock shall have been so converted, and any such dividend which shall have
been declared on such shares payable in shares of Class B Stock shall be
deemed to have been declared, and shall be payable, in shares of Common
Stock.
3.3. Prohibition against Reissue. The corporation shall not reissue
or resell any shares of Class B Stock which shall have been converted into
shares of Common Stock pursuant to or as permitted by the provisions of
Section 2, or any shares of Class B Stock which shall have been acquired by
the corporation in any other manner. The corporation shall, from time to
time, take such appropriate action as may be necessary to retire such
shares and to reduce the authorized amount of Class B Stock accordingly.
3.4. Reservation of Common Stock. The corporation shall at all
times reserve and keep available, out of its authorized but unissued Common
Stock, such number of shares of Common Stock as would become issuable upon
the conversion of all shares of Class B Stock then outstanding.
3.5. Investigation of Facts. In connection with any transfer or
conversion of any stock of the corporation pursuant to or as permitted by
the provisions of Section 2 of this Article FOURTH, or in connection with
the making of any determination referred to in subsection 2.6,
(i) the corporation shall be under no obligation to make any
investigation of facts unless an officer, employee or agent of the
corporation responsible for making such transfer or determination
or issuing Common Stock pursuant to such conversion has substantial
reason to believe, or unless the Board of Directors (or a committee
of the Board of Directors designated for the purpose) determines
that there is substantial reason to believe, that any affidavit or
other document is incomplete or incorrect in a material respect or
that an investigation would disclose facts upon which any
determination referred to in subsection 2.6 should be made, in
either of which events the corporation shall make or cause to be
made such investigation as it may deem necessary or desirable in
the circumstances and have a reasonable time to complete such
investigation, and
(ii) neither the corporation nor any director, officer,
employee or agent of the corporation shall be liable in any manner
for any action taken or omitted in good faith.
SECTION 4.
SUBSCRIPTION RIGHTS.
4.1. Special Right of Subscription -- Class B Stock. No shares of
Class B Stock and no obligations or shares convertible into shares of Class
B Stock, whether now or hereafter authorized and whether unissued or in the
treasury, shall be issued, for money paid, property or any other
consideration, unless the holders of Class B Stock shall first have been
given a special right to subscribe thereto, on a ratable basis, at a price
not less favorable than that at which such shares or obligations are to be
offered to others.
4.2. Other Subscription Rights Denied. Except for the special
subscription rights conferred on the holders of Class B Stock by the
provisions of subsections 4.1 and 4.3, no holder of stock of the
corporation of any class shall have any pre-emptive or preferential right
to subscribe to or purchase any shares of any class of stock of the
corporation, whether now or hereafter authorized and whether unissued or in
the treasury, or any obligations convertible into shares of any class of
stock of the corporation, at any time issued or sold, or any right to
subscribe to or purchase any thereof.
4.3. Discretionary Offering of Common Stock. If the Board of
Directors in its discretion should at any time offer shares of Common
Stock, or any shares or obligations convertible into shares of Common
Stock, for subscription or purchase by the holders of Common Stock, then
there shall be offered to all of the holders of Class B Stock for
subscription or purchase on a ratable basis, and at the same price per
share or unit, shares of stock of that class, or shares or obligations
convertible into shares of stock of that class, as the case may be;
provided, however, that from and after the time when the total number of
outstanding shares of Class B Stock shall first have fallen below
33,749,932, there shall be offered to the holders of the outstanding shares
of such stock for subscription or purchase shares of Common Stock or shares
or obligations convertible into shares of Common Stock, as the case may be,
in lieu of additional shares of Class B Stock or shares or obligations
convertible into shares of Class B Stock, as the case may be.
SECTION 5.
RIGHTS TO DIVIDENDS.
When and as dividends are declared (other than dividends declared
with respect to Preferred Stock), whether payable in cash, in property or
in shares of stock of the corporation (other than shares of Class B Stock
or Common Stock), the holders of Class B Stock and the holders of Common
Stock shall be entitled to share equally, share for share, in such
dividends. No dividends shall be declared or paid in shares of Class B
Stock or Common Stock of the corporation, except dividends, otherwise
ratable, payable in shares of Class B Stock to holders of that class of
stock, and in shares of Common Stock to holders of that class of stock;
provided, however, that from and after the time when the total number of
outstanding shares of Class B Stock shall first have fallen below
33,749,932, any such dividend shall be declared and paid to the holders of
shares of Class B Stock in shares of Common Stock.
SECTION 6.
ADJUSTMENTS.
6.1. Increase in Outstanding Stock. If the corporation shall in any
manner increase the number of outstanding shares of Class B Stock, then
each of the share numbers set forth in the Table below and appearing in the
provision of this Article FOURTH set forth in such Table opposite such
share number shall be deemed to be increased by a number bearing the same
proportion to such share number that such increase in the number of
outstanding shares of Class B Stock bears to the number of shares of Class
B Stock outstanding immediately prior to such increase; and in each such
case all of such provisions and this subsection 6.1 shall be applied so as
to give effect to such share numbers as so increased. If any such increase
shall be effected by amendment of the Certificate of Incorporation, then
such amendment shall itself increase each of the appropriate share numbers
in accordance with the foregoing.
TABLE
Provision Share Number
--------- ------------
1.3a............................................ 60,749,880
1.3b............................................ 60,749,880
1.3b............................................ 33,749,932
1.3c............................................ 33,749,932
1.7............................................. 33,749,932
2.1............................................. 33,749,932
2.2(iii)........................................ 33,749,932
2.2(iv)......................................... 33,749,932
2.2(v).......................................... 8,437,480
2.2 (last paragraph)............................ 33,749,932
2.4............................................. 33,749,932
2.5............................................. 33,749,932
4.3............................................. 33,749,932
5............................................... 33,749,932
6.2. Consolidation or Combination of Shares. If the corporation
shall effect the consolidation or combination of all outstanding shares of
Class B Stock by amendment of the Certificate of Incorporation, so as to
reduce the number of outstanding shares thereof, then such amendment shall
also decrease each of the share numbers set forth in the Table in
subsection 6.1 and appearing in the provision of this Article FOURTH set
forth in such Table opposite such share number, by a number bearing the
same proportion to such share number that the decrease in the number of
outstanding shares of stock of such class effected by such consolidation or
combination bears to the number of shares of stock of such class
outstanding immediately prior to the effective date of such consolidation
or combination.
SECTION 7.
RIGHTS OF COMMON STOCK AND
CLASS B STOCK UPON DISSOLUTION.
Subject to the rights of the holders of shares of any class or
series ranking prior to or on a parity with the Common Stock or the Class B
Stock, as the case may be, upon liquidation, dissolution or winding up of
the corporation, in the event of any liquidation, dissolution or winding up
of the corporation, whether voluntary or involuntary: (i) before any
payment or distribution of the assets of the corporation (whether capital
or surplus) shall be made to or set apart for the holders of Class B Stock,
the holders of the shares of Common Stock shall be entitled to receive
$0.50 per share (the "Common Stock Initial Liquidation Amount"); (ii)
before any additional payment or distribution of the assets of the
corporation (whether capital or surplus) shall be made to or set apart for
the holders of Common Stock following the payment of the Common Stock
Initial Liquidation Amount, the holders of Class B Stock shall be entitled
to receive $1.00 per share (the "Class B Liquidation Amount"); and (iii)
before any additional payment or distribution of the assets of the
corporation (whether capital or surplus) shall be made to or set apart for
the holders of Class B Stock following the payment of the Class B
Liquidation Amount, the holders of Common Stock shall be entitled to
receive $0.50 per share (the "Common Stock Additional Liquidation Amount"
and, together with the Common Stock Initial Liquidation Amount, the "Common
Stock Liquidation Amount"). Following the payment or setting apart for
payment of the Common Stock Liquidation Amount and the Class B Liquidation
Amount, the holders of Common Stock and Class B Stock shall participate
pari passu and be entitled to receive, on a pro rata basis, the remaining
assets of the corporation or proceeds therefrom available for distribution
to the holders of Common Stock and Class B Stock. If, upon any liquidation,
dissolution or winding up of the corporation, the assets of the corporation
or proceeds thereof: (i) distributable among the holders of the shares of
Common Stock shall be insufficient to pay in full the Common Stock Initial
Liquidation Amount and liquidating payments on any other shares of stock
ranking, as to liquidation, dissolution or winding up, on a parity with the
Common Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of shares of Common Stock and any such other
stock ratably in accordance with the respective amounts which would be
payable on such shares of Common Stock and any such other stock if all
amounts payable thereon were paid in full; (ii) distributable among the
holders of the shares of Class B Stock shall be insufficient to pay in full
the Class B Liquidation Amount and liquidating payments on any other shares
of stock ranking, as to liquidation, dissolution or winding up, on a parity
with the Class B Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of shares of Class B Stock and any such other
stock ratably in accordance with the respective amounts which would be
payable on such shares of Class B Stock and any such other stock if all
amounts payable thereon were paid in full; (iii) distributable among the
holders of the shares of Common Stock shall be insufficient to pay in full
the Common Stock Additional Liquidation Amount and liquidating payments on
any other shares of stock ranking, as to liquidation, dissolution or
winding up, on a parity with the Common Stock, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of
Common Stock and any such other stock ratably in accordance with the
respective amounts which would be payable on such shares of Common Stock
and any such other stock if all amounts payable thereon were paid in full.
For the purposes of this Section 7, (i) a consolidation or merger of the
corporation with one or more corporations, (ii) a sale or transfer of all
or substantially all of the corporation's assets or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary.
SECTION 8.
ALL SHARES OTHERWISE EQUAL.
Except as herein otherwise expressly provided, shares of Class B
Stock and Common Stock shall all be of equal rank and shall all entitle the
holders thereof to the same rights and privileges.
SECTION 9.
PREFERRED STOCK.
9.1. Preferred Stock. Shares of Preferred Stock may be issued from
time to time in one or more series. Subject to the limitations set forth in
this Article FOURTH and any limitations prescribed by the law of the State
of Delaware, the Board of Directors is expressly authorized, prior to
issuance of any series of Preferred Stock, to fix by resolution or
resolutions providing for the issue of any series the number of shares
included in such series and the designation, relative powers, preferences
and rights, and the qualifications, limitations or restrictions of such
series. Pursuant to the foregoing general authority vested in the Board of
Directors, but (except as provided in the proviso to clause (v) of this
subsection 9.1) not in limitation of the powers conferred on the Board of
Directors thereby and by the law of the State of Delaware, the Board of
Directors is expressly authorized to determine with respect to each series
of Preferred Stock:
(i) the distinctive designation of such series and the
number of shares (which number from time to time may be decreased
by the Board of Directors, but not below the number of such shares
then outstanding, or may be increased by the Board of Directors
unless otherwise provided in creating such series) constituting
such series;
(ii) the rate and time at which, and the preferences and
conditions under which, dividends shall be payable on shares of
such series, the status of such dividends as cumulative, or
non-cumulative, the date or dates from which dividends, if
cumulative, shall accumulate, and the status of such shares as
participating or non-participating after the payment of dividends
as to which such shares are entitled to any preference;
(iii) the right, if any, of holders of shares of such series
to convert such shares into, or to exchange such shares for, shares
of any other class or classes (other than Class B) or of any other
series of the same class, the prices or rates of conversion or
exchange, and adjustments thereto, and any other terms and
conditions applicable to such conversion or exchange;
(iv) the rights and preferences, if any, of the holders of
shares of such series upon the liquidation, dissolution or winding
up of the affairs of, or upon any distribution of the assets of,
the corporation, which amount may vary depending upon whether such
liquidation, dissolution, or winding up is voluntary or
involuntary, and, if voluntary, may vary at different dates, and
the status of the shares of such series as participating or
non-participating after the satisfaction of any such rights and
preferences;
(v) the voting powers, if any, of the holders of shares of
such series which may, without limiting the generality of the
foregoing, include (A) the general right to one vote (or more or
less than one vote) per share on every matter (including, without
limitation, the election of directors) voted on by the stockholders
without regard to class and (B) the limited right to vote, as a
series by itself or together with other series of Preferred Stock
or together with all series of Preferred Stock as a class, upon
such matters, under such circumstances and upon such conditions as
the Board of Directors may fix, including, without limitation, the
right, voting as a series by itself or together with other series
of Preferred Stock or together with all series of Preferred Stock
as a class, to elect one or more directors of the corporation in
the event there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock; provided,
however, that, notwithstanding the provisions of the preceding
subclause (B) or any other provisions of this subsection 9.1 to the
contrary, the holders of Preferred Stock, considered in the
aggregate (whether voting by individual series or together with
other series of Preferred Stock or together with all series of
Preferred Stock as a class), shall not have the right to a separate
class vote for the election of one or more directors of the
corporation except in the event there shall have been a default in
the payment of dividends on any one or more series of Preferred
Stock and, in such event, shall not have the right to a separate
class vote for more than a total of two directors;
(vi) the times, terms and conditions, if any, upon which
shares of such series shall be subject to redemption, including the
amount which the holders of shares of such series shall be entitled
to receive upon redemption (which amount may vary under different
conditions or at different redemption dates) and the amount, terms,
conditions and manner of operation of any purchase, retirement or
sinking fund to be provided for the shares of such series;
(vii) the limitations, if any, applicable while such series
is outstanding on the payment of dividends or making of
distributions on, or the acquisition or redemption of, Common Stock
or Class B Stock or any other class of shares ranking junior,
either as to dividends or upon liquidation, to the shares of such
series;
(viii) the conditions or restrictions, if any, upon the
issue of any additional shares (including additional shares of such
series or any other class) ranking on a parity with or prior to the
shares of such series either as to dividends or upon liquidation;
and
(ix) any other relative powers, preferences and
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of shares of
such series;
in each case, so far as not inconsistent with the provisions of the
Certificate of Incorporation or the law of the State of Delaware.
All shares of Preferred Stock shall be identical and of equal rank
except as to the particulars that may be fixed by the Board of
Directors as provided above, and all shares of each series of
Preferred Stock shall be identical and of equal rank except as to
the dates from which cumulative dividends, if any, thereon shall be
cumulative.
9.2. Full Voting Preferred Stock. As used in this Article FOURTH,
the term "Full Voting Preferred Stock" shall mean Preferred Stock of any
one or more series the holders of which shall be entitled to vote on every
matter (including, without limitation, the election of directors) voted on
by the stockholders without regard to class.
SECTION 10.
MISCELLANEOUS PROVISIONS.
10.1. Original Stock Ledger Conclusive. In determining the number
or the record holders of outstanding shares of any class of stock of the
corporation for the purpose of computing or determining the method of
computing the vote or determining the right to vote at any meeting of
stockholders or of a class of stockholders, the original stock ledger of
the corporation as at the close of business on the record date fixed for
such meeting or, if the stock transfer books of the corporation shall have
been closed for a period immediately preceding the date of such meeting,
then as at the close of business on the date as of which such stock
transfer books were so closed, shall be conclusive for all purposes, and in
determining the number or the record holders of outstanding shares of any
class of stock of the corporation for any other purpose, the original stock
ledger of the corporation as at the close of business on the date as of
which the determination is being made, shall be conclusive for all
purposes; all notwithstanding any other provision of this Article FOURTH or
any entries made on the books of the corporation pursuant to the last
paragraph of subsection 2.3 subsequent to the close of business on such
record or other date.
10.2. Treasury Stock Not Outstanding. The term "outstanding" as
used in this Article FOURTH with reference to shares of stock of the
corporation shall not include any stock held in the treasury of the
corporation.
10.3. Singular and Plural. Wherever a term shall be used in the
singular in this Article FOURTH, it shall be deemed in all appropriate
circumstances to include also the plural, and wherever a term shall be so
used in the plural, it shall similarly be deemed to include also the
singular.
10.4. References. Unless otherwise stated, all references contained
in this Article FOURTH to Sections, subsections, paragraphs, clauses or
subclauses refer to Sections, subsections, paragraphs, clauses or
subclauses of this Article FOURTH.
10.5. Captions or Headings. The captions or headings contained in
this Article FOURTH are for purposes of reference only and shall not limit
or affect, or have any bearing on the construction or interpretation of,
any of the terms or provisions of this Article FOURTH.
