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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 22, 1996
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Noodle Kidoodle, Inc.
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Delaware 1-6083 11-1771705
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
105 Price Parkway, Farmingdale, New York 11735
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(Address of principal executive offices) Zip Code
Registrant's telephone number, including area code: (516) 293-5300
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Greenman Bros. Inc.
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(Former name or former address, if changed since last report)
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Page 1 of 3
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Item 5. Other Events.
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On January 22, 1996, Noodle Kidoodle, Inc. (the "Company") reincorporated
in the State of Delaware. The reincorporation resulted from the merger of
Noodle Kidoodle, Inc., a New York corporation ("Noodle-NY"), with and into the
Company, the surviving company. The shareholders of Noodle-NY approved the
reincorporation at a special meeting of shareholders on January 4, 1996.
A copy of the Certificate of Incorporation of the Company, filed on January
18, 1996 with the Secretary of State of the State of Delaware, is attached
hereto as Exhibit 1.
Item 7. Exhibits.
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The following is filed herewith as an exhibit to this Current Report on
Form 8-K:
1. Certificate of Incorporation of the Company
Page 2 of 3
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SIGNATURES
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 hereunto duly authorized.
January 26, 1996 NOODLE KIDOODLE, INC.
By: /s/ William A. Johnson
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William A. Johnson
Corporate Vice President --
Chief Financial Officer and Secretary
Page 3 of 3
Exhibit 1
CERTIFICATE OF INCORPORATION
OF
NOODLE KIDOODLE, INC.
The undersigned, a natural person, for the purpose of organizing
a corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of the
laws of the State of Delaware (particularly Title 8, Chapter 1, of the Delaware
Code and the acts amendatory thereof and supplemental thereto, and known,
identified, and referred to as the "Delaware General Corporation Law"), hereby
certifies that:
FIRST: The name of the Corporation is Noodle Kidoodle, Inc.
SECOND: The address of the registered office of the Corporation
in Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, and
the name of the registered agent of the Corporation at such address is
Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
FOURTH: The total number of shares which the Corporation is
to be authorized to issue is 15,000,000 shares of common stock, par value $.001
(the "Common Stock") and 1,000,000 shares of preferred stock, par value $.001
("the Preferred Stock").
A statement of the designations of the authorized classes
of stock or of any series thereof, and the powers, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, or of the
authority of the Board of Directors to fix by resolution or
resolutions such designations and other terms not fixed by the
Certificate of Incorporation, is as follows:
(a) The Preferred Stock may be issued in one or more
series, from time to time, with each such series to have such
designation, powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions providing for the issue of such series
adopted by the Board of Directors of the Corporation, subject to
the limitations prescribed by law and in accordance with the
provisions hereof, the Board of Directors being hereby expressly
vested with authority to adopt any such resolution or
resolutions. The authority of the Board of Directors with
respect to each such series shall include, but not be limited to,
the determination or fixing of the following:
(i) The distinctive designation and number of
shares comprising 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 of such series, the
conditions and times upon which such dividends shall be payable,
the relation which such dividends shall bear to the dividends
payable on any other class or classes of stock or series thereof,
or any other
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series of the same class, and whether such dividends
shall be cumulative or non-cumulative;
(iii) The conditions upon which the shares of
such series shall be subject to redemption by the Corporation and
the times, prices and other terms and provisions upon which the
shares of the series may be redeemed;
(iv) Whether or not the shares of the series
shall be subject to the operation of a retirement or sinking fund
to be applied to the purchase or redemption of such shares and,
if such retirement or sinking fund be established, the annual
amount thereof and the terms and provisions relative to the
operation thereof;
(v) Whether or not the shares of the series
shall be convertible into or exchangeable for shares of any other
class or classes, with or without par value, or of any other
series of the same class, and, if provision is made for
conversion or exchange, the times, prices, rates, adjustments,
and other terms and conditions of such conversion or exchange;
(vi) Whether or not the shares of the series shall
have voting rights, in addition to the voting rights provided by
law, and, if so, the terms of such voting rights;
(vii) The rights of the shares of the series in the
event of voluntary or involuntary liquidation, dissolution, or
upon the distribution of assets of the Corporation;
(viii) Any other powers, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of the
shares 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.
(b) The holders of shares of the Preferred Stock of each
series shall be entitled to receive, when and as declared by the
Board of Directors, out of funds legally available for the
payment of dividends, dividends at the rates fixed by the Board
of Directors for such series, and no more, before any dividends,
other than dividends payable in Common Stock, shall be declared
and paid, or set apart for payment, on the Common Stock with
respect to the same dividend period.
(c) Whenever, at any time, dividends on the then
outstanding Preferred Stock, as may be required with respect to
any series outstanding, shall have been paid or declared and set
apart for payment on the applicable series of the then
outstanding Preferred Stock, and after complying with respect to
any retirement or sinking fund or funds for any series of
Preferred Stock, the Board of Directors may, subject to the
provisions of the resolution or resolutions creating any series
of Preferred Stock, declare and pay dividends on the Common
Stock, and the holders of shares of the Preferred Stock shall not
be entitled to share therein.
(d) The holders of shares of the Preferred Stock of each
series shall be entitled upon liquidation or dissolution or upon
the distribution of the assets of the
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Corporation to such preferences as provided in the resolution or
resolutions creating such series of Preferred Stock, and no more,
before any distribution of the assets of the Corporation shall be
made to the holders of shares of the Common Stock. Whenever the
holders of shares of the Preferred Stock shall have been paid the
full amounts to which they shall be entitled, the holders of
shares of the Common Stock shall be entitled to share ratably in
all assets of the Corporation remaining.
(e) At all meetings of the stockholders of the Corporation,
the holders of shares of the Common Stock shall be entitled to
one vote for each share of Common Stock held by them. Except as
otherwise provided by a resolution or resolutions of the Board of
Directors creating any series of Preferred Stock or by the
Delaware General Corporation Law, the holders of shares of the
Common Stock issued and outstanding shall have and possess the
exclusive right to notice of stockholders' meetings and the
exclusive power to vote.
(f) The designation, powers preferences and rights of the
Series A Junior Participating Preferred Stock are as follows:
Section 1. Designation and Amount. The Corporation is
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authorized to issue shares of a series of Preferred Stock which shall be
designated as "Series A Junior Participating Preferred Stock," $.001 per share,
and the number of shares constituting such series shall be 440,000. Such number
of shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A Junior
Participating Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
Section 2. Dividends and Distributions.
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(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock in preference to the holders of shares of Common Stock, of the Corporation
and any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of January, April,
July, and October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Junior Participating Preferred Stock in an amount per share (rounded to
the nearest cent) equal to the greater of (a) $1.00, or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock, 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 Junior Participating
Preferred Stock. In the event the Corporation shall at any time after the date
of the filing of this Certificate of Incorporation (the "Rights Declaration
Date") (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A Junior Participating Preferred
Stock were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event (in the case of the declaration
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of a dividend payable in shares of Common Stock, assuming the payment of such
dividend) and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred Stock as provided in
paragraph (A) above immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common Stock);
provided, that in the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$1.00 per share on the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series A Junior Participating Preferred Stock unless the date of issue of
such shares is prior to the record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to receive a
quarterly dividend for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for such Quarterly Dividend Payment Date and before
such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A Junior Participating 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. The Board of Directors may fix a record date
for the determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of
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Series A Junior Participating Preferred Stock shall have the following voting
rights:
(A) Subject to the provisions for adjustment hereinafter
set forth, each share of Series A Junior Participating Preferred Stock shall
entitle the holder thereof to one vote on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the number of votes per share to which holders of shares
of Series A Junior Participating Preferred Stock were entitled immediately prior
to such event shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event (in the case of the declaration of a dividend
payable in shares of Common Stock, assuming the payment of such dividend) 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 or by law, the
holders of shares of Series A Junior Participating Preferred Stock and holders
of shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such contingency shall
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mark the beginning of a period (herein called a "Default Period") which shall
extend until such time when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly dividend period on all
shares of Series A Junior Participating Preferred Stock then outstanding shall
have been declared and paid or set apart for payment. During each Default
Period, all holders of Preferred Stock (including holders of the Series A Junior
Participating Preferred Stock) with dividends in arrears in an amount equal to
six (6) quarterly dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two (2) directors who shall serve in addition to
such number of directors already serving and whose terms shall not be staggered
or classified.
(ii) During any Default Period, such voting right of the holders
of Series A Junior Participating Preferred Stock may be exercised initially at
a special meeting called pursuant to subparagraph (iii) of this Section 3(C) or
at any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in
certain cases, the authorized number of Directors shall be exercised unless the
holders of ten percent (10%) in number of shares of Preferred Stock outstanding
shall be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Preferred Stock
of such voting right. At any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an existing Default Period,
they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist, up to two (2)
Directors, or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any meeting because of
vacancies in the Board of Directors or otherwise does not amount to the required
number, the number of Directors shall automatically be increased to such number
of Directors as shall be necessary to permit the election by the holders of
Preferred Stock of the required number. After the holders of the Preferred
Stock shall have exercised their right to elect Directors in any Default Period
and during the continuance of such period, the number of Directors shall not be
increased or decreased except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Junior Participating Preferred Stock.
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(iii) Unless the holders of Preferred Stock shall,
during an existing Default Period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any shareholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the holders of Preferred Stock,
which meeting shall thereupon be called by the Chairman of the Board, the
President, a Vice-President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this paragraph (C)(iii) shall be given to each
holder of record of Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 10 days and not later than
60 days after such order or request or in default of the calling of such meeting
within 60 days after such order or request, such meeting may be called on
similar notice by any stockholder or stockholders owning in the aggregate not
less than ten percent (10%) of the total number of shares of Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the stockholders.
(iv) In any Default Period, the holders of Common
Stock, and other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the Default Period, and (y) any vacancy in the Board of Directors may (except as
provided in paragraph (C)(ii) of this Section 3) be filled by vote of a
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majority of the remaining Directors theretofore elected by the holders of the
class of stock which elected the Director whose office shall have become vacant.
References in this paragraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a Default
Period, (x) the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
Preferred Stock as a class shall terminate, and (z) the number of Directors
shall be such number as may be provided for in, or pursuant to, the Certificate
of Incorporation or By-Laws irrespective of any increase made pursuant to the
provisions of paragraph (C)(ii) of this Section 3 (such number being subject,
however, to change thereafter in any manner provided by law or in the
Certificate of Incorporation or By-Laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining Directors, even though
less than a quorum.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no 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 taking any corporate action.
Section 4. Certain Restrictions.
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(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
A Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends on, make any
other distributions on, 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 Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock
except dividends paid ratably on the Series A
Junior Participating 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;
(iii) 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 Junior Participating Preferred Stock
provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of
any stock of the Corporation ranking junior
(either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Junior
Participating Preferred Stock; or
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(iv) purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock or any
shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock except in accordance with a
purchase offer made in writing or by publication (as determined
by the Board of Directors) 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 Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
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Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon
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any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received per share, the greater of $25.00 or 100 times the payment to
be made per share of Common Stock, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph C
below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and Common
Stock, respectively, holders of Series A Junior Participating Preferred Stock
and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available to
permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, which
rank on a parity with the Series A Junior Participating Preferred Stock, then
such remaining assets shall be distributed ratably to the holders of Series A
Junior Participating Preferred Stock and such parity shares in proportion to
their respective liquidation preferences. In the event there are not
sufficient assets available to permit payment in full of the Common Adjustment
following payment in full of the Series A Liquidation Preference and the
liquidation preference of all other series of Preferred Stock, if any, which
rank of a parity with the Series A Junior Participating Preference Stock, then
such remaining assets shall be distributed ratably to the holders of Common
Stock.,
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(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event (in the case of the declaration of a dividend
payable in shares of Common Stock, assuming the payment of such dividend) and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
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Corporation 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 the shares of Series A Junior Participating Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per share (subject to
the provision for adjustment hereinafter set forth) equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock
is changed or exchanged. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Junior Participating Preferred
Stock shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event (in the case of the declaration of a dividend payable in shares of
Common Stock, assuming the payment of such dividend) and the denominator of
which is the number of shares of Common Stock that are outstanding immediately
prior to such event.
Section 8. Redemption. The shares of Series A Junior
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Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating
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Preferred Stock shall rank junior to all other series of the Corporation's
Preferred Stock as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise.
Section 10. Amendment. This Certificate of Incorporation
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shall not be further amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding shares
of Series A Junior Participating Preferred Stock voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating
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Preferred Stock may be issued in fractions of a share which shall entitle the
holder, in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Junior Participating Preferred Stock.
FIFTH: (a) The number of Directors shall be nine, plus such
number as shall be added to the Board of Directors pursuant to Article FOURTH
Paragraph 6 hereof. The directors shall not be required to be stockholders.
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(b) With the exception of Directors added to the
Board of Directors pursuant to Article FOURTH Section 3(C)(i) hereof, the Board
of Directors shall be divided into three equal classes which shall be initially
constituted as follows: three Class 1 Directors with terms expiring at the
Annual Meeting of Stockholders in 1998; three Class 2 Directors with terms
expiring at the Annual Meeting of Stockholders in 1996; and three Class 3
Directors with terms expiring at the Annual Meeting of Stockholders in 1997.
At each annual meeting of stockholders, Directors chosen to succeed those whose
terms then expired shall be elected for a term of office expiring at the third
succeeding Annual Meeting of Stockholders after their election.
(c) Except as required in the By-Laws no election of
directors need be by written ballot.
SIXTH: The Board of Directors shall have the power to make,
alter, or repeal By-Laws subject to the power of the stockholders to alter or
repeal the By-Laws made or altered by the Board of Directors.
SEVENTH: The personal liability of the Directors of the
Corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of Sec. 102 of the Delaware
General Corporation Law. If the Delaware General Corporation Law is hereafter
amended to authorize the further elimination or limitation of the liability of
a Director, 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.
EIGHTH: The Corporation, to the fullest extent permitted by the
provisions of Sec. 145 of the Delaware General Corporation Law, as the same may
be amended and supplemented, shall indemnify each person who is or was an
officer or Director of the Corporation and may indemnify any and all other
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any By-law, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a Director or officer and
shall inure to the benefit of the heirs, executors, and administrators
successors, assigns and legal representatives of such a person.
NINTH: No contract or other transaction between the
Corporation and any other corporation shall be affected or invalidated by the
fact that any one or more of the Directors of the Corporation is or are
interested in, or is a director or officer, or are directors or officers of such
other corporation, and any Director or Directors, individually or jointly, may
be a party or parties to or may be interested in any contract or transaction of
the Corporation or in which the Corporation is interested; and no contract, act
or transaction of the Corporation with any persons, firms or corporations, shall
be affected or invalidated by the fact that any Director or Directors of the
Corporation is a party, or are parties, to or interested in such contract, act
or transaction, or in any way connected with such persons, firms or
corporations, and each and every person who may become a Director of the
Corporation is hereby relieved from any liability that might otherwise exist
from contracting with the Corporation for the benefit of himself or any firm or
corporation in which he may be in any way interested.
TENTH: (a) Except as set forth below, the affirmative vote
of the holders of not less than 80% of the total outstanding shares of the
shares entitled to vote thereon shall be required to authorize:
(i) any merger, reorganization or consolidation of the
Corporation or of any subsidiary with or into any other corporation, person
or other entity;
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(ii) any sale, lease, hypothecation, exchange or other
disposition (in one transaction or in a series of related transactions) of
all or any substantial part of the assets of the Corporation or of any
subsidiary to or with any other corporation, person or other entity; or
(iii) any issuance or transfer by the Corporation or by any
subsidiary of any of its securities to any other corporation, person or
other entity in exchange for assets or securities or a combination thereof,
having an aggregate fair market value of 20% or more of the consolidated
assets of the Corporation and its subsidiaries as of the end of the fiscal
year of the Corporation immediately preceding the record date for
determination of stockholders entitled to notice thereof and to vote
thereon;
(the foregoing described transactions are referred to herein as "Special
Actions") if in any such case, as of the record date for the determination of
stockholders entitled to notice thereof and to vote thereon, the other
corporation, person or other entity which is a party to a Special Action
beneficially owns, directly or indirectly, 20% or more of the outstanding shares
of capital stock of the Corporation (any such other corporation, person or other
entity being referred to in this Article TENTH as a "Major Stockholder").
(b) For purposes of this Article TENTH, any
corporation, person or other entity shall be deemed to be beneficial owner of
any shares of Common Stock of the Corporation:
(i) which it owns directly, whether or not of record; or
(ii) which it has the right to acquire pursuant to any agreement
or understanding or upon the exercise to any agreement or understanding or
upon the exercise of conversion rights, warrants or options or otherwise,
whether or not presently exercisable; or
(iii) which are beneficially owned, directly or indirectly
(including shares deemed to be owned through application of clause (ii)
above) by an "affiliate" or "associate" as those terms are defined herein;
or
(iv) which are beneficially owned, directly or indirectly by any
other corporation, person or other entity (including any shares which such
other corporation, person or other entity has the right to acquire pursuant
to any agreement or understanding or upon the exercise of conversion
rights, warrants or options or otherwise, whether or not presently
exercisable) with which it or its "affiliates" or "associates" has any
agreement or arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of Common Stock of the Corporation.
For the purposes of this Article TENTH, the outstanding shares of Common Stock
of the Corporation shall include shares deemed owned through the application of
clauses (b)(ii), (iii) and (iv) above, but shall not include any other shares
which may be issuable pursuant to any agreement or upon exercise of conversion
rights, warrants, options or otherwise.
(c) The provisions of this Article TENTH shall not
apply to a Special Action if:
(i) the Board of Directors has voted to approve the Special
Action; and
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(ii) a majority of those directors voting to approve the Special
Action were duly elected and acting members of the Board of Directors prior
to the time when the Major Stockholder involved in the Special Action in
question first became a Major Stockholder.
(d) For purposes of this Article TENTH:
(i) the term "person" shall be read to include where
appropriate: corporations, natural individuals and other entities;
(ii) an "affiliate" of any specified person includes any person
who directly or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such specified person;
(iii) an "associate" of any specified person includes (1) any
person of which the specified person is an officer or partner or is,
directly or indirectly, the beneficial owner of 10% or more of any class of
equity securities, (2) any trust or other estate in which the specified
person has a substantial beneficial interest or as to which the specified
person serves as trustee or in a similar capacity, or (3) any relative or
spouse of the specified person or any relative of such spouse, who has the
same home as the specified person or any corporation which controls or is
controlled by the specified person;
(iv) a "subsidiary" means a corporation of which a majority of
the outstanding shares of capital stock is owned by the Corporation
directly, and/or indirectly through one or more other subsidiaries.
(e) The Board of Directors shall have the power and
duty to determine for the purpose of this Article TENTH on the basis of
information known to the Board whether any person is a Major Stockholder,
affiliate or associate. Any such determination shall be conclusive and binding
for all purposes of this Article TENTH.
(f) The provisions of this Article TENTH may only be
amended or repealed by the vote of 80% of the outstanding Common Stock of the
Corporation."
ELEVENTH: The name and mailing address of the Sole Incorporator is as
follows:
Name Mailing Address
---- ---------------
Fran LaVecchia c/o Kramer, Levin, Naftalis,
Nessen, Kamin & Frankel
919 Third Avenue
New York, NY 10022
I, the undersigned, being the incorporator, for the purpose of
forming a corporation under the laws of Delaware, do make, file and record this
Certificate of Incorporation, to certify that the facts herein stated are true,
accordingly have set my hand this 18th day of January, 1996.
/s/ Fran LaVecchia
---------------------
Fran LaVecchia
Incorporator
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