<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
---------------
HADSON CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 31-0679954
(State of incorporation or (I.R.S. Employer
organization) Identification No.)
2777 STEMMONS FREEWAY, SUITE 700
DALLAS, TEXAS 75207
(Address of principal executive offices) (Zip Code)
---------------
Securities to be registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
------------------- ------------------------------
Not Applicable Not Applicable
Securities to be registered pursuant to Section 12(g) of the Act:
JUNIOR EXERCISABLE AUTOMATICALLY CONVERTIBLE PREFERRED STOCK,
SERIES B, PAR VALUE $.01 PER SHARE
================================================================================
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On December 14, 1993, Adobe Gas Pipeline Company, then a wholly-owned
subsidiary of Santa Fe Energy Resources, Inc. ("Santa Fe"), merged (the
"Merger") with and into Hadson Corporation, a Delaware corporation (the
"Company"), with the Company being the surviving corporation in the Merger.
All of the authorized shares of the Company's shares of Junior Exercisable
Automatically Convertible Preferred Stock, Series B, par value $.01 per share
("Junior Preferred Stock"), were issued pursuant to the Merger. The following
is a description of the Junior Preferred Stock.
THE SUMMARY SET FORTH BELOW OF THE TERMS OF THE JUNIOR PREFERRED STOCK
AND OF CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE OF INCORPORATION OF THE
COMPANY, AS AMENDED (THE "RESTATED CERTIFICATE"), DOES NOT PURPORT TO BE
COMPLETE AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE PROVISIONS OF THE
RESTATED CERTIFICATE, WHICH IS INCLUDED AS AN EXHIBIT TO THIS REGISTRATION
STATEMENT AND INCORPORATED HEREIN BY REFERENCE.
AUTHORIZED NUMBER OF SHARES; DIVIDEND AND VOTING RIGHTS
4,983,180 shares of Junior Preferred Stock are authorized under the
Restated Certificate. No dividends are payable on outstanding shares of the
Junior Preferred Stock and holders of Junior Preferred Stock have no voting
rights, other than those provided by Delaware law.
EXERCISE RIGHTS
Each share of Junior Preferred Stock entitles the registered holder
thereof to purchase from the Company, on or before the Expiration Date (as
defined under "Automatic Conversion" below), one share of Common Stock, par
value $.01 per share, of the Company ("Common Stock") for each share of Junior
Preferred Stock held by such holder at a price of $3.225 per share of Common
Stock, subject to adjustment as described below (as such exercise price may be
adjusted from time to time, the "Exercise Price"), upon surrender of such share
of Junior Preferred Stock and payment of the Exercise Price. Shares of Junior
Preferred Stock may be so exercised at any time on or before the Expiration
Date.
Shares of Junior Preferred Stock may be exercised for shares of Common
Stock by surrendering the certificate or certificates evidencing no fewer than
the number of shares of Junior Preferred Stock to be exercised to the Company,
at the office of the transfer agent for the Junior Preferred Stock with the
Election to Exercise form set forth on the reverse side of such certificates
duly completed and executed, and by simultaneously paying in full, in cash or
by certified or bank cashier's check, to such transfer agent for the account of
the Company, the Exercise Price for each share of Common Stock as to which
shares of Junior Preferred Stock are then exercised and any applicable taxes,
other than taxes which the Company is required to pay under the terms of the
Junior Preferred Stock. The shares of Junior Preferred Stock evidenced by a
certificate shall be exercisable, at the election of the registered holder
thereof, either as an entirety or from time to time for part of the number of
shares of Junior Preferred Stock evidenced by the certificate.
As soon as practicable after such surrender of certificates evidencing
shares of Junior Preferred Stock and payment of the Exercise Price, the Company
shall cause to be issued to or upon the written order of the holder of the
shares of Junior Preferred Stock so exercised a certificate or certificates for
the number of full shares of Common Stock purchased upon such exercise,
registered in such name or names as may be directed by such holder, and, if the
number of shares of Junior Preferred Stock represented by a certificate shall
not have been exercised in full, a new certificate for the balance of such
shares of Junior Preferred Stock.
If any fraction of a share of Common Stock would be issuable on the
exercise of any shares of Junior Preferred Stock, the Company may, at its sole
option, (i) issue such fractional share or (ii) if it shall elect not
<PAGE> 3
to issue fractions of a share, (A) arrange for the disposition of fractional
interests by those entitled thereto or (B) pay a cash adjustment in respect of
any fractional share in an amount equal to that fraction of the last reported
sales price per share of Common Stock on the trading day immediately preceding
such exercise. The Company shall not be required to issue fractional shares of
Common Stock.
In connection with the Merger, the Company established a trust (the
"H/P Trust") to which the Company deposited 4,983,180 shares of Common Stock
(the "Trust Shares") immediately following the Merger. As a result of the
Merger, The Prudential Insurance Company of America and certain of its
affiliates (collectively, "Prudential") received an interest in the H/P Trust
initially representing a beneficial trust interest in all of the Trust Shares.
As holders of shares of Junior Preferred Stock exercise their right to purchase
shares of Common Stock pursuant to the terms of the Junior Preferred Stock, the
Company will periodically deposit, or cause to be deposited, to the H/P Trust
all proceeds of such exercises. At the end of each calendar quarter and upon
termination of the H/P Trust, if the dollar amount of exercise proceeds held in
the H/P Trust has reached certain levels, Liberty Bank and Trust Company of
Oklahoma City, N.A. ("Liberty"), as trustee of the H/P Trust, will pay such
proceeds to Prudential and will distribute a corresponding number of Trust
Shares to the Company. The H/P Trust shall terminate one day after the later
to occur of the following events: (i) July 14, 1994; and (ii) the earliest
date on which there are no shares of Junior Preferred Stock outstanding. Upon
termination of the H/P Trust, all remaining Trust Shares, if any, will be
distributed to Prudential.
AUTOMATIC CONVERSION
Each outstanding share of Junior Preferred Stock not previously
exercised shall, without any action on the part of the holder thereof or the
Company, automatically convert into .001 of a fully paid and nonassessable
share of Common Stock, subject to adjustment as described below (such rate, as
so adjusted from time to time, is referred to as the "Conversion Rate"), on the
earlier to occur of (i) the date (the "Early Automatic Conversion Date") that
is 30 days following the first date (the "Trigger Date") on which the last
reported sales price per share of Common Stock for each of the immediately
preceding 40 consecutive trading days shall have exceeded 200% of the Exercise
Price in effect on such trading day (in which event the Company shall mail or
cause to be mailed, within 10 days following the Trigger Date, a notice of
automatic conversion to each record holder of shares of Junior Preferred Stock)
and (ii) December 16, 1995 (the "Scheduled Automatic Conversion Date"). The
earlier to occur of the Scheduled Automatic Conversion Date and the Early
Automatic Conversion Date is referred to as the "Expiration Date."
With respect to any fractional share of Common Stock issuable in
connection with the conversion of shares of Junior Preferred Stock, the Company
may, at its sole option, (i) issue such fractional share or (ii) if it shall
elect not to issue fractions of a share, (A) arrange for the disposition of
fractional interests by those entitled thereto or (B) pay a cash adjustment in
respect of any fractional share in an amount equal to that fraction of the last
reported sales price per share of Common Stock on the trading day immediately
preceding such conversion.
ADJUSTMENT OF SHARES OF COMMON STOCK PURCHASABLE, EXERCISE PRICE AND CONVERSION
RATE
If the Company shall at any time (i) pay a dividend or distribution on
all outstanding shares of Common Stock in shares of Common Stock, (ii)
subdivide all of the outstanding shares of Common Stock into a larger number of
shares or (iii) combine all of the outstanding shares of Common Stock into a
smaller number of shares, each of (A) the number of shares of Common Stock
purchasable upon exercise of each share of Junior Preferred Stock and (B) the
Conversion Rate in effect immediately prior to the record date for any such
stock dividend or distribution or the effective date of any such similar event
shall be proportionately adjusted so that each share of Junior Preferred Stock
shall thereafter be exercisable for and convertible into the number of shares
of Common Stock which the holder of a share of Junior Preferred Stock would
have been entitled to receive after the happening of any of the events
described above had such share
-2-
<PAGE> 4
of Junior Preferred Stock been exercised or converted immediately prior to the
happening of such event. However, no adjustment in the number of shares of
Common Stock purchasable upon the exercise of, or issuable upon the conversion
of, each share of Junior Preferred Stock shall be required to be made unless
such adjustment would require an increase or decrease of at least 3% of the
number of shares of Common Stock purchasable upon exercise of, or issuable upon
the conversion of, each share of Junior Preferred Stock. Upon each adjustment
of the number of shares of Common Stock purchasable upon the exercise of each
share of Junior Preferred Stock, the Exercise Price shall be adjusted by
multiplying the Exercise Price in effect immediately prior to such adjustment
by a fraction, of which the numerator shall be the number of shares of Common
Stock purchasable upon the exercise of each share of Junior Preferred Stock
immediately prior to such adjustment, and of which the denominator shall be the
number of shares of Common Stock so purchasable immediately thereafter. The
Company shall not take any action that would result in an adjustment of the
Exercise Price to an amount less than the par value of a share of Common Stock.
In the event of any capital reorganization of the Company, or of any
reclassification or similar change of the Common Stock, or in case of any
consolidation of the Company with, or merger of the Company with or into, any
other corporation or other entity (other than a merger which does not result in
any reclassification, conversion, exchange or redemption of outstanding shares
of Common Stock), each share of Junior Preferred Stock shall after such capital
reorganization, reclassification, change, consolidation or merger be
exercisable, upon the terms and conditions specified in the terms of the Junior
Preferred Stock, and shall be convertible only for the number of shares of
stock or other securities or property to which a holder of the number of shares
of Common Stock purchasable upon exercise of, or issuable upon the conversion
of, such share of Junior Preferred Stock would have been entitled upon such
capital reorganization, reclassification, change, consolidation or merger had
such share of Junior Preferred Stock been exercised or converted immediately
prior to the effective date of such event.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, occurring prior to
the Expiration Date, after payment or provision for payment by the Company of
its debts and other liabilities, and subject to the preferential rights of the
holders of the Company's Senior Cumulative Preferred Stock, Series A, par value
$.01 per share ("Senior Preferred Stock") (as described below), each holder of
shares of Junior Preferred Stock then outstanding shall be entitled to be paid
out of the assets of the Company available for distribution to its stockholders
an amount in cash equal to $0.75 for each outstanding share of Junior Preferred
Stock held by such holder before any payment shall be made or any assets
distributed to the holders of outstanding junior securities in respect of such
liquidation, dissolution or winding up; and the holders of shares of Junior
Preferred Stock shall not be entitled to any further payment. The term "junior
securities," for purposes of the Junior Preferred Stock provisions, means all
equity securities of the Company (whether existing or hereafter created) to
which the Junior Preferred Stock ranks senior in order of preference as to
payment or distribution of assets on liquidation, dissolution or winding up of
the affairs of the Company, including the Common Stock but not including the
Senior Preferred Stock, which ranks senior to the Junior Preferred Stock with
respect to such matters. If the net assets of the Company are not sufficient
to pay in full the respective preferential liquidation payments payable to the
holders of the outstanding shares of Junior Preferred Stock and the holders of
any parity stock, then the entire net assets of the Company shall be
distributed ratably among the holders of the Junior Preferred Stock and the
holders of such parity stock in proportion to the respective amounts that would
be payable per share if such assets were sufficient to permit payment of such
amounts in full.
In the event of any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, after payment or
provision for payment by the Company of its debts and other liabilities, each
holder of shares of Senior Preferred Stock then outstanding shall be entitled
to be paid out of the assets of the Company available for distribution to its
stockholders an amount in cash equal to $25 per share of Senior Preferred Stock
held by such holder plus any accumulated and unpaid dividends before any
-3-
<PAGE> 5
payment shall be made or assets distributed to the holders of outstanding
junior securities in respect of such liquidation, dissolution or winding up,
including the Junior Preferred Stock.
MISCELLANEOUS
The Junior Preferred Stock has no preemptive or other subscription
rights, and is not redeemable by the Company. In connection with the Merger,
the Company issued an aggregate $56.4 million of its 8% Senior Secured Notes
Due 2003 to Prudential pursuant to a securities purchase agreement dated as of
December 14, 1993 between the Company and Prudential. Such agreement provides,
among other things, that, so long as any of such notes remain unpaid, the
Company may not redeem, purchase or otherwise acquire any shares of its stock.
The Company's credit agreement prohibits the redemption, purchase or other
acquisition of any of the Company's capital stock unless a specified cash flow
test is met. Liberty serves as transfer agent and registrar of the Junior
Preferred Stock.
ITEM 2. EXHIBITS
4.1 Restated Certificate of Incorporation of the Company
4.2 Amended and Restated Bylaws of the Company, as amended as of
December 14, 1993
4.3 Trust Agreement, dated as of December 14, 1993, by and between
the Company, Prudential and Liberty, as trustee (filed as
exhibit 4.3 to the Company's Current Report on Form 8-K dated
December 14, 1993 and incorporated herein by reference)
5.1 Specimen certificate of Junior Exercisable Automatically
Convertible Preferred Stock, Series B, par value $.01 per
share, of the Company (filed as exhibit 4.02 to the Company's
Registration Statement on Form S-4, File No. 33- 68224, and
incorporated herein by reference)
-4-
<PAGE> 6
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant had duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: March 28, 1994 HADSON CORPORATION
By: /s/ ROBERT P. CAPPS
_____________________________________
Robert P. Capps
Executive Vice President,
Chief Financial Officer and Treasurer
-5-
<PAGE> 1
RESTATED CERTIFICATE OF INCORPORATION
OF
HADSON CORPORATION
Hadson Corporation (formerly Hadson Petroleum Corporation, which was
originally incorporated in the State of Delaware under the name Haddel
Corporation pursuant to a Certificate of Incorporation filed with the Secretary
of State of the State of Delaware (the "Secretary of State") on May 7, 1980 and
which has caused to be filed with the Secretary of State the following: (i)
Certificates of Merger on June 26, 1980 and December 31, 1990; (ii)
Certificates of Correction on April 8, 1987 correcting the Restated
Certificates of Incorporation filed on March 19, 1984, August 3, 1984 and July
7, 1986; (iii) Restated Certificates of Incorporation on July 31, 1981, March
19, 1984, August 3, 1984, July 7, 1986, May 4, 1987, February 8, 1988 and March
8, 1993; (iv) Certificates of Amendment on January 29, 1981, August 21, 1987
and December 14, 1992; (v) Certificate of Designation of the Voting Powers,
Designations, Preferences and Relative, Participating, Optional or Other
Special Rights and Qualifications, Limitations and Restrictions of the Series A
Preferred Stock on July 19, 1988 and removed by Certificate of Resolutions of
the Board of Directors on December 14, 1992; and (vi) Certificates of
Designations of 7% Senior Cumulative Preferred Stock, Series A and 8% Junior
Cumulative Convertible Preferred Stock, Series B, both on December 15, 1992)
hereby restates its Certificate of Incorporation to conform to the amendments
filed with the Secretary of State as part of the Certificate of Merger of Adobe
Gas Pipeline Company With and Into Hadson Corporation on December 14, 1993, in
accordance with a resolution duly adopted by the Board of Directors of the
Corporation on December 14, 1993 all in accordance with Section 245 of the
General Corporation Law of the State of Delaware, to read in full as follows
(this Restated Certificate of Incorporation only restates and integrates and
does not further amend the provisions of the Certificate of Incorporation as
heretofore amended or supplemented and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of Incorporation):
ARTICLE 1
The name of the Corporation is Hadson Corporation.
ARTICLE 2
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, 19801. The name of the Corporation's registered agent at
such address is The Corporation Trust Company.
ARTICLE 3
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE 4
The total number of shares of capital stock of all classes which the
Corporation shall have authority to issue is 60,000,000, which shall consist of
(i) 25,000,000 shares of preferred stock, par value $.01 per share ("Preferred
Stock"), and (ii) 35,000,000 shares of Common Stock, par value $.01 per share
("Common Stock").
The following is a statement of the designations, powers, preferences
and rights, and the qualifications, limitations or restrictions thereof, of the
classes of stock of the Corporation, and of the authority with respect thereto
expressly granted to the Board of Directors of the Corporation:
<PAGE> 2
A. Preferred Stock.
To the fullest extent permitted by Delaware law, the Board of
Directors is hereby expressly vested with the authority to adopt a resolution
or resolutions providing for the issuance of authorized but unissued shares of
Preferred Stock, which shares may be issued from time to time in one or more
series, and in such amounts as may be determined by the Board of Directors in
such resolution or resolutions. Each such series shall have such powers,
designations, preferences and relative, participating, optional or other
rights, if any, and such qualifications, limitations or restrictions thereof,
if any (collectively, the "Series Terms"), as are stated and expressed in a
resolution or resolutions providing for the creation of such series, or the
revision of the Series Terms of such series, adopted by the Board of Directors.
The powers of the Board of Directors with respect to the Series Terms of a
particular series shall include, but not be limited to, determination of the
following:
1. the number of shares constituting that series and the
distinctive designation of that series, or any increase or decrease (but not
below the number of shares thereof then outstanding) in such number;
2. the dividend rate on the shares of that series, if any,
whether such dividends shall be cumulative, and, if so, the date or dates from
which dividends payable on such shares shall accumulate and the relative rights
of priority, if any, of payment of dividends on shares of that series;
3. whether that series shall have voting rights in addition to
the voting rights provided by law, and, if so, the terms and conditions of such
voting rights;
4. whether that series shall have conversion privileges with
respect to shares of any other class or classes of stock or shares of any other
series of any class of stock, and, if so, the terms and conditions of such
conversion privileges, including the conversion price or rate and the method,
if any, of adjusting such conversion price or rate upon occurrence of such
events as the Board of Directors shall determine;
5. whether shares of that series shall be redeemable, and, if so,
the terms and conditions of such redemption, including their relative rights of
priority of redemption, if any, the date or dates upon or after which they
shall be redeemable, provisions regarding redemption notices and the redemption
price per share, which price may vary under different conditions and at
different redemption dates;
6. whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
7. the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, and the relative rights of priority, if any, of payment of
shares of that series;
8. the conditions or restrictions upon the creation of
indebtedness of the Corporation or upon the issuance of additional Preferred
Stock or other capital stock ranking pari passu therewith or prior thereto with
respect to dividends or payment or distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Corporation;
9. the conditions or restrictions with respect to the issuance
of, payment of dividends upon, or the making of other distributions to, or the
acquisition or redemption of, shares ranking junior to the Preferred Stock or
to any series thereof with respect to dividends or payment or distribution of
assets upon liquidation, dissolution or winding up of the affairs of the
Corporation; and
10. any other designations, powers, preferences and rights,
including, without limitation, any qualifications, limitations or restrictions
thereof.
-2-
<PAGE> 3
Any of the Series Terms, including voting rights, of any series may be made
dependent upon facts ascertainable outside this Certificate of Incorporation
and the resolution or resolutions designating that series of Preferred Stock,
provided that the manner in which such facts shall operate upon such Series
Terms is clearly and expressly set forth in this Certificate of Incorporation
or in the resolution or resolutions designating that series of Preferred Stock.
Subject to the provisions of this Article 4, shares of one or more
series of Preferred Stock may be authorized or issued from time to time as
shall be determined by and for such consideration as shall be fixed by the
Board of Directors or a designated committee thereof, in an aggregate amount
not exceeding the total number of shares of Preferred Stock authorized by this
Certificate of Incorporation. Except as fixed by the Board of Directors in a
resolution or resolutions designating any series of Preferred Stock, all shares
of Preferred Stock shall be of equal rank and shall be identical in all
respects. All shares of any one series of Preferred Stock so designated by the
Board of Directors shall be identical in all respects, except that shares of
any one series issued at different times may differ as to the dates from which
dividends thereon shall accumulate.
Except as expressly set forth herein or in the resolution or
resolutions of the Board of Directors designating any series of Preferred
Stock, the holders of shares of any series of Preferred Stock shall have no
other rights other than those provided by applicable law.
B. Series of Senior Cumulative Preferred Stock, Series A.
1. Designation and Number. The distinctive designation of such
series is "Senior Cumulative Preferred Stock, Series A" ("Senior Preferred
Stock"), and such series shall consist initially of 5,193,520 shares.
2. Rank. Except as otherwise provided in this Certificate of
Incorporation, the Senior Preferred Stock shall, with respect to rights upon
liquidation, dissolution or winding up of the affairs of the Corporation and
with respect to dividend rights, rank senior to all other equity securities of
the Corporation, including without limitation, the Common Stock. The term
"Junior Securities" as used in this Article 4.B. shall mean, collectively, all
of such equity securities of the Corporation (whether now existing or hereafter
created) to which the Senior Preferred Stock ranks senior in order of
preference as to dividends or as to payment or distribution of assets upon
liquidation, dissolution or winding up of the affairs of the Corporation.
3. Dividends.
(a) The holders of outstanding shares of Senior Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, dividends ("Regular Dividends") payable at a rate per annum equal to
(i) 11.25% of the Liquidation Preference (as defined in section 4(a) of this
Article 4.B.) of such shares for the period commencing on December 14, 1993 and
continuing through December 31, 1995 and (ii) 10.70% of the Liquidation
Preference of such shares from and after January 1, 1996. Regular Dividends
shall be payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, with the first such payment to be made on March 31,
1994 (the period from December 14, 1993 through March 31, 1994 and each
three-month period ending on June 30, September 30, December 31 and March 31 of
each year thereafter is hereinafter referred to as a "Quarterly Dividend
Period" and each such ending date of each such period is hereinafter referred
to as a "Dividend Payment Date"); provided, however, that if any such date is a
day on which banks in Oklahoma City, Oklahoma are required or authorized to be
closed, then such Regular Dividend shall be payable on the immediately
succeeding day on which banks in Oklahoma City, Oklahoma are not required or
authorized to be closed (for purposes of this Article 4.B., a "business day").
Each such Regular Dividend shall be fully cumulative and shall accrue
commencing on December 14, 1993 (whether or not declared and whether or not the
Corporation shall have funds legally available for the payment of such Regular
Dividend), without interest. Regular Dividends shall accumulate on a daily
basis without regard to the occurrence of a Dividend Payment Date or the
declaration of any dividend. Except as provided in the following paragraph,
the Regular Dividends for each of the first eight Quarterly Dividend Periods
shall be payable only in shares of Senior Preferred Stock having an aggregate
Liquidation Preference equal to the dollar amount of the Regular Dividend then
payable. From and after January 1, 1995, Regular Dividends shall be payable
only in cash, out of funds legally available therefor.
-3-
<PAGE> 4
The full number of shares of Senior Preferred Stock issuable in
payment of Regular Dividends to each holder of outstanding shares of Senior
Preferred Stock shall be computed on the basis of the aggregate number of
outstanding shares of Senior Preferred Stock held by such holder. With respect
to any fractional share of Senior Preferred Stock issuable in connection with
any such Regular Dividend, the Corporation may, at its sole option, (i) issue
such fractional share or (ii) if it shall elect not to issue fractions of a
share, (A) arrange for the disposition of fractional interests by those
entitled thereto or (B) pay a cash adjustment in respect of such fractional
share in an amount equal to that fraction of the Closing Price (as hereinafter
defined) per share of Senior Preferred Stock on the business day immediately
preceding the Dividend Payment Date.
As used above, "Closing Price" per share of Senior Preferred Stock for
any day shall mean the last reported sales price regular way or, in case no
such reported sale takes place on such day, the average of the last closing bid
and asked prices regular way, in either case on the principal national
securities exchange on which the Senior Preferred Stock is then listed or
admitted to trading, or if not then listed or admitted to trading on any
national securities exchange, the closing sales price for such day reported by
the National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ"), if the Senior Preferred Stock is traded over-the-counter and quoted
in the NASDAQ National Market System, or if the Senior Preferred Stock is so
traded, but not so quoted, the average of the closing reported bid and asked
prices of the Senior Preferred Stock as reported by NASDAQ or any comparable
system or, if the Senior Preferred Stock is not listed on NASDAQ or any
comparable system, the average of the closing bid and asked prices as furnished
by two members of the National Association of Securities Dealers, Inc. selected
from time to time by the Corporation for that purpose. If the Senior Preferred
Stock is not traded in such manner that the quotations referred to above are
available for the period required hereunder, the Closing Price per share of
Senior Preferred Stock shall be deemed the fair value per share of Senior
Preferred Stock as determined in good faith by the Board of Directors (the
determination of which shall be conclusive).
(b) If, at any time after December 31, 1995 while shares of Senior
Preferred Stock are outstanding, Regular Dividends shall be in arrears and
unpaid beyond the applicable Dividend Payment Date with respect thereto (the
"Unpaid Dividends") and the full amount of such Regular Dividends is not either
(i) paid or (ii) declared and funds sufficient to pay such amount set apart for
payment thereof (a "Dividend Default"), then, until such Unpaid Dividends have
been paid in full, the holders of outstanding shares of Senior Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, additional dividends ("Additional Dividends"), payable in cash, in
an amount equal to the amount of interest that would accrue on such Unpaid
Dividends for the period commencing upon the Dividend Default and continuing
until such Unpaid Dividends shall have been paid in full, if such Unpaid
Dividends were debt having an unpaid principal balance equal to the amount of
such Unpaid Dividends and bearing interest at the Prime Rate. "Prime Rate"
shall mean the rate established from time to time by Bank of Montreal as its
prime rate or, if the Corporation shall cease to maintain one or more bank
accounts with Bank of Montreal, the prime rate published from time to time in
The Wall Street Journal as the base rate on corporate loans posted by a
majority of the 30 largest banks in the United States of America or, if such
information is not so published, 6%.
Each Additional Dividend shall be payable quarterly in arrears on each
Dividend Payment Date (or, if any such date is not a business day, then on the
immediately succeeding business day), shall be fully cumulative, shall accrue
without interest commencing upon a Dividend Default (whether or not declared
and whether or not the Corporation shall have funds legally available for the
payment of such Additional Dividend) and continuing until all Unpaid Dividends
have been paid in full and shall accumulate on a daily basis without regard to
the occurrence of a Dividend Payment Date with respect thereto or the
declaration of any Additional Dividends.
As used below in this Article 4.B., the term "dividends," when used
solely with respect to the Senior Preferred Stock, shall mean the Regular
Dividends and the Additional Dividends.
(c) Dividends on the Senior Preferred Stock shall be paid to the
holders of record of the Senior Preferred Stock as they appear on the stock
register of the Corporation on the applicable record date fixed by the Board of
Directors. All dividends paid with respect to outstanding shares of Senior
Preferred Stock shall be paid
-4-
<PAGE> 5
pro rata to such holders of record based upon the Liquidation Preference of
such outstanding shares. If the funds of the Corporation legally available for
the payment of dividends shall be insufficient for the payment of the entire
amount of the dividends payable on any Dividend Payment Date with respect to
the outstanding shares of Senior Preferred Stock and with respect to the
outstanding shares of any other class or series of capital stock of the
Corporation ranking on a parity with the Senior Preferred Stock in order of
preference as to dividends, the amount of such legally available funds shall be
allocated for the payment of dividends with respect to the outstanding shares
of Senior Preferred Stock and the outstanding shares of such parity stock in
proportion to the respective amounts that would be payable per share if such
funds were sufficient to permit payment of all such dividends in full.
(d) Dividends on the Senior Preferred Stock accumulated but unpaid
as of any Dividend Payment Date may be declared and paid at any time, without
reference to any regular Dividend Payment Date, to holders of record of the
Senior Preferred Stock as they appear on the stock register of the Corporation
on the applicable record date fixed by the Board of Directors.
(e) Holders of shares of Senior Preferred Stock shall be entitled
to receive the dividends provided for in sections 3(a) and 3(b) of this Article
4.B. in preference to and in priority over all dividends upon Junior
Securities. So long as any shares of Senior Preferred Stock are outstanding,
the Corporation shall not declare, pay or set apart for payment any dividend on
any Junior Securities or make any distribution in respect thereof, either
directly or indirectly, and whether in cash, obligations or shares of the
Corporation or other property (other than distributions or dividends payable in
Junior Securities to the holders of Junior Securities and payments of cash in
lieu of fractional shares in connection therewith), unless, prior to or
concurrently with such declaration, payment, setting apart for payment or
distribution, as the case may be, all accumulated and unpaid dividends on
shares of the Senior Preferred Stock for all past Quarterly Dividend Periods,
and the accumulated dividend thereon for the then current Quarterly Dividend
Period, shall have been or be paid or declared and a sum (or, with respect to
dividends payable for any period ending on or before December 31, 1995, shares
of Senior Preferred Stock) sufficient for the payment thereof set apart for
payment. Subject to the foregoing provisions of this section 3 and the other
provisions of this Certificate of Incorporation, the Board of Directors may
also declare and the Corporation may pay or set apart for payment dividends and
other distributions on Junior Securities or any warrants, rights, calls or
options exercisable for or convertible into Junior Securities, and the holders
of shares of the Senior Preferred Stock shall not be entitled to share therein.
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, after payment
or provision for payment by the Corporation of its debts and other liabilities,
each holder of shares of Senior Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders an amount in cash equal to the sum of (i) $25
for each outstanding share of Senior Preferred Stock held by such holder (such
per share amount is referred to in this Article 4.B. as the "Liquidation
Preference") plus (ii) an amount in cash equal to the sum of all accumulated
and unpaid dividends on each such share to the date fixed for such
distribution, before any payment shall be made or any assets distributed to the
holders of outstanding Junior Securities in respect of such liquidation,
dissolution or winding up; and the holders of shares of Senior Preferred Stock
shall not be entitled to any further payment. If the net assets of the
Corporation are not sufficient to pay in full the respective preferential
liquidation payments payable to the holders of outstanding shares of Senior
Preferred Stock in accordance with the preceding sentence and the holders of
any other class or series of stock of the Corporation ranking on a parity with
the Senior Preferred Stock in order of preference as to distributions in the
event of a voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, then the entire net assets of the Corporation
shall be distributed ratably among the holders of all outstanding shares of
Senior Preferred Stock and the holders of all outstanding shares of such parity
stock in proportion to the respective amounts that would be payable per share
if such assets were sufficient to permit payment of such amounts in full.
(b) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, stating a payment
date and the place where the distributable amounts shall be payable, shall be
-5-
<PAGE> 6
given by mail, postage prepaid, not less than 30 days prior to the payment date
stated therein, to the holders of record of Senior Preferred Stock, if any, at
their respective addresses as the same shall appear on the stock register of
the Corporation.
(c) For the purposes of this section 4, neither the sale,
conveyance, exchange, lease or transfer (for cash, shares of stock, securities
or other consideration) of all or substantially all of the property and assets
of the Corporation nor the consolidation or merger of the Corporation with or
into one or more entities shall be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, unless such sale, conveyance, exchange,
lease, transfer, consolidation or merger shall be in connection with a
dissolution or winding up of the business of the Corporation or a direct or
indirect distribution of all or substantially all of the proceeds therefrom to
any holder or holders of Junior Securities.
5. Voting Rights.
(a) Holders of Senior Preferred Stock shall be entitled to the
voting rights provided in this section 5, in addition to such voting rights as
are expressly provided by applicable Delaware law, and shall not be entitled to
any other voting rights.
(b) The holders of outstanding shares of Senior Preferred Stock,
voting separately as a class and with one vote per share, shall be entitled to
elect two directors of the Corporation (the "Senior Preferred Stock
Directors"), in the manner provided in this section 5(b), if and at any time
Regular Dividends in an aggregate amount equal to six full quarterly Regular
Dividend payments shall be in arrears and unpaid, and continuing until such
special voting rights (the "Special Voting Rights") expire as hereinafter
provided; provided, however, that such rights will not apply if and to the
extent that a Senior Preferred Stock Director (whose term of office does not
expire at a meeting held to elect such directors) previously has been elected
by the holders of shares of the Senior Preferred Stock.
At any time when the Special Voting Rights shall be vested in the
holders of Senior Preferred Stock as provided in this section 5(b), such
Special Voting Rights shall be exercised at each annual meeting of stockholders
for the election of directors, and at each such meeting the holders of
outstanding shares of Senior Preferred Stock, voting separately as a class and
with one vote per share, shall have the right to elect the Senior Preferred
Stock Directors; provided, however, that if such Special Voting Rights shall
become vested more than 90 days or less than 20 days before the date prescribed
for the annual meeting of stockholders, thereupon the holders of outstanding
shares of Senior Preferred Stock shall be entitled to exercise their Special
Voting Rights at a special meeting of the holders of shares of Senior Preferred
Stock. Any such special meeting of the holders of shares of Senior Preferred
Stock shall be called by the Board of Directors prior to the expiration of 20
days from the date on which such Special Voting Rights first became vested upon
notice similar to that provided for an annual meeting, and shall be held at the
earliest practicable date. If such special meeting is not so called or held,
it may be called or held in the following manner: at any time when so requested
in writing, more than 90 days prior to the date prescribed for the annual
meeting of stockholders, by the holders of at least 10% of the outstanding
shares of Senior Preferred Stock entitled to vote for the Senior Preferred
Stock Directors (which request may be made by personal service or by mailing
the same within the United States of America by registered or certified mail
addressed to the Secretary of the Corporation at the principal office of the
Corporation), the Secretary of the Corporation shall, at least 25 days prior to
the date for the special meeting (determined as provided below), mail written
notice thereof to all holders of stock entitled to vote thereat, addressed to
each such holder at such holder's last address according to the stock register
of the Corporation. The record date for holders of shares of Senior Preferred
Stock entitled to notice of and to vote at such special meeting shall be the
close of business on the Monday following the expiration of 15 days from the
date such written request is made as above provided. The date of such special
meeting shall be 30 days after the record date therefor and such meeting shall
be held at the hour and in the city or town and state of the holding of the
last annual meeting of stockholders. If any date provided for above shall fall
on a day other than a business day, then such date shall be the next succeeding
business day. If the Secretary of the Corporation shall fail or refuse to give
such notice as above provided, then any person designated in writing by the
holders of at least 10% of the outstanding shares of Senior Preferred Stock in
which the Special Voting Rights are vested may give
-6-
<PAGE> 7
such notice, or cause such notice to be given, at least 10 days before the date
of the special meeting (determined as provided above), and the Corporation
shall furnish any person so designated, or such person's representative or
representatives duly appointed in writing, access to the stock books of the
Corporation for the purpose of giving such notice.
As of the time of the first annual meeting held while the holders of
shares of Senior Preferred Stock are entitled to exercise the Special Voting
Rights as provided in this section 5(b), or as of the time of such special
meeting held pursuant to the foregoing provisions, whichever first occurs, the
then authorized number of directors constituting the entire Board of Directors
of the Corporation contained in this Certificate of Incorporation or the bylaws
of the Corporation, or otherwise designated in a resolution adopted by the
Board of Directors, shall, without further action by the Board of Directors or
stockholders of the Corporation or any other person, increase by two.
At any meeting of the holders of shares of Senior Preferred Stock to
elect Senior Preferred Stock Directors, the Senior Preferred Stock Directors to
be elected at such meeting shall be elected by a plurality of the votes of the
outstanding shares of Senior Preferred Stock so present and entitled to vote on
such election. Holders of shares of Senior Preferred Stock shall not be
entitled to cumulate their votes in any election of any Senior Preferred Stock
Director.
At any meeting held for the purpose of electing directors at which the
holders of Senior Preferred Stock shall be entitled to exercise the Special
Voting Rights as provided in this section 5(b), or any adjournment thereof, (i)
the absence of a quorum of the holders of the Senior Preferred Stock shall not
prevent the election of directors other than Senior Preferred Stock Directors
and the absence of a quorum or quorums of the holders of capital stock entitled
to elect such other directors shall not prevent the election of Senior
Preferred Stock Directors and (ii) in the absence of a quorum of the holders of
Senior Preferred Stock entitled to vote in the election of the Senior Preferred
Stock Directors, a majority of the holders thereof present in person or by
proxy shall have the power to adjourn the meeting for the election of such
directors from time to time without notice (except as required by applicable
law) other than announcement at the meeting, until a quorum shall be present.
The term of office of each Senior Preferred Stock Director shall
terminate upon the earlier of (i) the election of his or her successor by the
holders of Senior Preferred Stock and (ii) the termination of the Special
Voting Rights as provided below in this section 5(b). Upon any termination of
the Special Voting Rights, the total authorized number of directors
constituting the whole Board of Directors of the Corporation shall, without
further action, be reduced by two, subject always to the increase in the total
authorized number of directors constituting the whole Board of Directors of the
Corporation pursuant to this section 5(b) in the event the Special Voting
Rights of the holders of the Senior Preferred Stock shall vest thereafter
pursuant to this section 5(b).
In the event of a vacancy on the Board of Directors resulting from the
death, resignation, removal or disqualification of any Senior Preferred Stock
Director, such vacancy may be filled only by the sole remaining Senior
Preferred Stock Director (if any) or by action of the holders of the Senior
Preferred Stock acting by written consent or by vote thereof at a special
meeting called for that purpose in accordance with this section 5(b) or at any
annual meeting of stockholders.
After vesting, the Special Voting Rights will continue to be so
vested, and may be exercised at any time and from time to time as hereinabove
provided, until (i) all accumulated and unpaid dividends on shares of the
Senior Preferred Stock for all past Quarterly Dividend Periods shall have been
paid in full and (ii) all accumulated dividends on the outstanding shares of
Senior Preferred Stock for the then current Quarterly Dividend Period shall
have been paid or declared and a sum (or, with respect to dividends payable for
any period ending on or before December 31, 1995, shares of Senior Preferred
Stock) sufficient for the payment thereof set apart for payment, at which time
such Special Voting Rights shall terminate.
(c) The affirmative vote of the holders of at least 66 2/3% of the
outstanding shares of Senior Preferred Stock, voting separately as a class, in
person or by proxy, either in writing without a meeting or at an annual meeting
of stockholders or a special meeting of the holders of the Senior Preferred
Stock called for the
-7-
<PAGE> 8
purpose, shall be required for (i) any merger of the Corporation with or into
any other entity (other than a merger of any subsidiary of the Corporation with
and into the Corporation in which the Corporation is the surviving entity) or
any consolidation of the Corporation with any other entity, which merger or
consolidation may have a material adverse effect on the powers, preferences or
special rights of the Senior Preferred Stock, (ii) any sale, lease, assignment,
transfer or other conveyance of all or substantially all of the assets of the
Corporation and (iii) any dissolution, liquidation or winding up of the affairs
of the Corporation, but in each case only if and to the extent that the holders
of Common Stock are entitled to vote thereon. In all cases where holders of
Senior Preferred Stock have the right to vote separately as a class pursuant to
this section 5(c), each record holder of Senior Preferred Stock shall be
entitled to one vote for each share of Senior Preferred Stock standing in such
holder's name on the stock register of the Corporation.
(d) The Corporation shall not amend any provision of this
Certificate of Incorporation if such amendment would (i) alter or change the
powers, preferences or special rights of the shares of Senior Preferred Stock
so as to affect them adversely or (ii) create another class or series of
preferred stock of the Corporation ranking prior to or pari passu with the
Senior Preferred Stock in order of preference as to dividends or as to payment
or distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Corporation, in each case without the approval of the holders of
at least 66 2/3% of the outstanding shares of Senior Preferred Stock, voting
separately as a class and with one vote per share, in person or by proxy,
either in writing without a meeting, or at an annual meeting of stockholders or
a special meeting of the holders of the Senior Preferred Stock called for the
purpose. An amendment which (i) increases the number of authorized shares of
preferred stock of the Corporation, (ii) authorizes the issuance of additional
shares of any authorized class or series of preferred stock of the Corporation
or (iii) creates another class or series of preferred stock of the Corporation
ranking junior to the Senior Preferred Stock in order of preference as to
dividends and the payment or distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Corporation, shall not require
the approval of the holders of the Senior Preferred Stock.
6. Optional Redemption.
(a) The Corporation may, at its sole option, upon the terms and
subject to the conditions set forth in this section 6, redeem for cash, at any
time and from time to time, all or part of the outstanding shares of Senior
Preferred Stock, at the following redemption prices per share if redeemed
during the 12 months commencing January 1 of the years indicated below, plus,
in each case, a cash payment of an amount equal to the sum of all accumulated
and unpaid dividends on such shares to the date fixed for redemption by the
Board of Directors (a "Redemption Date"):
<TABLE>
<CAPTION>
12 MONTHS
COMMENCING JANUARY 1, REDEMPTION PRICE
--------------------- ----------------
<S> <C>
1999 $26.25
2000 $26.00
2001 $25.75
2002 $25.50
2003 $25.25
2004 and thereafter $25.00
</TABLE>
(b) With respect to any redemption of outstanding shares of Senior
Preferred Stock, the aggregate number of shares to be redeemed shall be
determined by the Board of Directors. In the case of the redemption of any
part of the Senior Preferred Stock at the time outstanding, such redemption
will be made pro rata among all holders of record of shares of Senior Preferred
Stock outstanding on the record date fixed for such redemption.
(c) If the Corporation shall elect to redeem shares of Senior
Preferred Stock pursuant to this section 6, the Corporation will give notice of
such redemption by first class mail or expedited delivery service, postage
prepaid, mailed not less than 15 nor more than 60 days prior to the applicable
Redemption Date, to each holder of
-8-
<PAGE> 9
record of shares of Senior Preferred Stock at such holder's address appearing
on the stock register of the Corporation; provided, however, that no failure to
give such notice nor any defect therein shall affect the validity of the
proceedings for the redemption of any shares of Senior Preferred Stock to be
redeemed, except as to the holder to whom the Corporation failed to give such
notice or except as to the holder whose notice was defective. Each such notice
of redemption shall state: (i) the Redemption Date; (ii) the total number of
shares of Senior Preferred Stock to be redeemed; (iii) the redemption price per
share; (iv) the place, time and manner in which certificates for such shares
are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed shall cease to accumulate upon such
Redemption Date.
(d) Each holder of shares of Senior Preferred Stock to be redeemed
shall surrender the certificate or certificates representing such shares to the
Corporation in the manner and at the place designated in the redemption notice,
and thereupon the redemption price per share of Senior Preferred Stock so
surrendered shall be paid in cash to the order of the person whose name appears
on such certificate or certificates as the owner thereof, and each surrendered
certificate shall be cancelled and the shares represented thereby shall be
retired. On or after the Redemption Date, notwithstanding that any
certificates representing shares of Senior Preferred Stock to be redeemed shall
not have been surrendered for redemption, all shares of Senior Preferred Stock
called for redemption shall no longer be deemed outstanding, all dividends
thereon shall cease to accumulate and all rights of the holders of such shares
shall cease and terminate, excepting only the right to receive the redemption
price therefor (including accrued and unpaid dividends to the Redemption Date),
without interest. If only a portion of the number of shares covered by a
certificate representing shares of Senior Preferred Stock surrendered for
redemption is to be redeemed, the Corporation shall issue and deliver to or
upon the written order of the holder of the certificate so surrendered for
redemption, at the expense of the Corporation, a new certificate covering the
number of shares of Senior Preferred Stock representing the unredeemed portion
of the shares represented by the certificate so surrendered.
(e) At any time before or after notice of redemption has been
given pursuant to section 6(c) of this Article 4.B. and before such Redemption
Date, the Corporation may deposit, as a trust fund, for the pro rata benefit of
the holders of Senior Preferred Stock so called for redemption, the funds
necessary to pay the aggregate redemption price for the shares to be redeemed
plus accumulated and unpaid dividends thereon to and including the Redemption
Date with a bank or trust company having capital resources in excess of
$50,000,000, together with written instructions and authority to such bank or
trust company to pay, on or after such Redemption Date, to the respective
holders of the shares of Senior Preferred Stock called for redemption, as
evidenced by a list of holders of such shares certified by the Secretary of the
Corporation, the applicable redemption price plus such accumulated and unpaid
dividends upon surrender of their respective share certificates. Any monies so
deposited by the Corporation and unclaimed at the end of one year from such
Redemption Date shall revert to the general funds of the Corporation. After
such reversion, any such bank or trust company shall, upon demand, pay over to
the Corporation such unclaimed amounts and thereupon such bank or trust company
shall be relieved of all responsibility in respect thereof to the holders of
such shares and such holders shall look only to the Corporation for the payment
of the redemption price. Any interest accrued on funds so deposited pursuant
to this section 6(e) shall be paid from time to time to the Corporation for its
own account.
Upon the deposit of funds pursuant to the immediately preceding
paragraph in respect of shares of Senior Preferred Stock called for redemption,
notwithstanding that any certificates for such shares shall not have been
surrendered for cancellation, the shares represented thereby shall no longer be
deemed outstanding, and all rights of the holders of the shares of Senior
Preferred Stock called for redemption shall cease and terminate, excepting only
the right to receive the redemption price therefor (including accumulated and
unpaid dividends to the Redemption Date designated in the notice of
redemption), without interest, and dividends on such shares shall cease to
accumulate from and after the Redemption Date.
7. Reacquired Shares. Any shares of Senior Preferred Stock
redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired promptly after the acquisition thereof. All such
shares shall upon their retirement become authorized but unissued shares of
Preferred Stock without designation as to series, until any such shares are
once more designated as part of a series by the Board of Directors in
-9-
<PAGE> 10
accordance with this Certificate of Incorporation and applicable law, subject
to the conditions and restrictions on issuance set forth herein.
8. Except as expressly set forth in this Certificate of
Incorporation, the holders of Senior Preferred Stock shall have no other rights
other than those provided by applicable Delaware law.
C. Series of Junior Exercisable Automatically Convertible Preferred
Stock, Series B.
1. Designation and Number. The distinctive designation of such
series is "Junior Exercisable Automatically Convertible Preferred Stock, Series
B" ("Junior Preferred Stock"), and such series shall consist initially of
4,983,180 shares.
2. Rank. Except as otherwise provided herein, the Junior
Preferred Stock shall, with respect to rights upon liquidation, dissolution or
winding up of the affairs of the Corporation, rank senior to all other equity
securities of the Corporation (including the Common Stock) other than the
Senior Preferred Stock, which shall rank senior to the Junior Preferred Stock
with respect thereto. The term "Junior Securities" as used in this Article
4.C. shall mean, collectively, all of such equity securities of the Corporation
(whether now existing or hereafter created) to which the Junior Preferred Stock
ranks senior in order of preference as to payment or distribution of assets
upon liquidation, dissolution or winding up of the affairs of the Corporation.
3. Dividends. No dividends shall be payable on outstanding
shares of Junior Preferred Stock.
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, occurring
prior to the Expiration Date (as hereinafter defined), after payment or
provision for payment by the Corporation of its debts and other liabilities,
and subject to the preferential rights of the holders of Senior Preferred
Stock, each holder of shares of Junior Preferred Stock then outstanding shall
be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders an amount in cash equal to $0.75 for each
outstanding share of Junior Preferred Stock held by such holder (such per share
amount is referred to in this Article 4.C. as the "Liquidation Preference"),
before any payment shall be made or any assets distributed to the holders of
outstanding Junior Securities in respect of such liquidation, dissolution or
winding up; and the holders of shares of Junior Preferred Stock shall not be
entitled to any further payment. If the net assets of the Corporation are not
sufficient to pay in full the respective preferential liquidation payments
payable to the holders of outstanding shares of Junior Preferred Stock and the
outstanding shares of any other class or series of stock of the Corporation
ranking on a parity with the Junior Preferred Stock in order of preference as
to distributions in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, then the entire
net assets of the Corporation shall be distributed ratably among the holders of
all outstanding shares of Junior Preferred Stock and all outstanding shares of
such parity stock in proportion to the respective amounts that would be payable
per share if such assets were sufficient to permit payment of such amounts in
full.
(b) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, stating a payment
date and the place where the distributable amounts shall be payable, shall be
given by mail, postage prepaid, not less than 30 days prior to the payment date
stated therein, to the holders of record of Junior Preferred Stock, if any, at
their respective addresses as the same shall appear on the stock register of
the Corporation.
(c) For the purposes of this section 4, neither the sale,
conveyance, exchange, lease or transfer (for cash, shares of stock, securities
or other consideration) of all or substantially all of the property and assets
of the Corporation nor the consolidation or merger of the Corporation with or
into one or more entities shall be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, unless such sale, conveyance, exchange,
lease, transfer, consolidation or merger shall be in connection with a
dissolution or winding up of the business of the Corporation.
-10-
<PAGE> 11
5. Voting Rights. Holders of Junior Preferred Stock shall have
no voting rights, except as provided by Delaware law.
6. Exercise Rights. Shares of Junior Preferred Stock shall, when
surrendered together with the required consideration described below, be
exercisable for shares of Common Stock as follows:
(a) Each share of Junior Preferred Stock shall entitle the
registered holder thereof, upon surrender of such share, subject to the
provisions of this section 6, to purchase from the Corporation, prior to 5:00
p.m., Central Time, on the Expiration Date (as hereinafter defined), one share
of Common Stock for each share of Junior Preferred Stock held by such holder at
the price of $3.225 per share of Common Stock, each subject to adjustment as
provided in section 7 of this Article 4.C., payable in full in lawful money of
the United States of America at the time of purchase. The term "Exercise
Price" as used herein means the foregoing price per share in effect at any
time. Shares of Junior Preferred Stock may be so exercised on any day on which
banks in Oklahoma City, Oklahoma are not required or authorized to be closed
(for purposes of this Article 4.C., a "Business Day") commencing at the opening
of business, Central Time, on December 14, 1993 and ending at 5:00 p.m.,
Central Time, on the earlier to occur of (i) December 14, 1995 (the "Scheduled
Automatic Conversion Date") and (ii) the Early Automatic Conversion Date, as
hereinafter defined (the earlier to occur of such dates is herein referred to
as the "Expiration Date").
(b) Shares of Junior Preferred Stock may be exercised for shares
of Common Stock by surrendering the certificate or certificates evidencing no
fewer than the number of shares of Junior Preferred Stock to be exercised to
the Corporation, at the office of the transfer agent for the Junior Preferred
Stock, with the Election to Exercise form set forth on the reverse side of such
certificates duly completed and executed, and by simultaneously paying in full,
in cash or by certified or bank cashier's check, to such transfer agent for the
account of the Corporation, the Exercise Price for each share of Common Stock
as to which shares of Junior Preferred Stock are then exercised and any
applicable taxes, other than taxes which the Corporation is required to pay
under this section 6. The shares of Junior Preferred Stock evidenced by a
certificate shall be exercisable, at the election of the record holder thereof,
either as an entirety or from time to time for part of the number of shares of
Junior Preferred Stock evidenced by the certificate.
(c) As soon as practicable after such surrender of certificates
evidencing shares of Junior Preferred Stock and payment of the Exercise Price
as aforesaid, the Corporation shall cause to be issued to or upon the written
order of the holder of the shares of Junior Preferred Stock so exercised a
certificate or certificates for the number of full shares of Common Stock
purchased upon such exercise, registered in such name or names as may be
directed by such holder, and, if the number of shares of Junior Preferred Stock
represented by a certificate shall not have been exercised in full, a new
certificate for the balance of such shares of Junior Preferred Stock.
(d) The Corporation shall not be required to issue fractional
shares of Common Stock on the exercise of shares of Junior Preferred Stock. If
more than one certificate evidencing shares of Junior Preferred Stock shall be
presented for exercise in full at the same time by the same holder, the number
of full shares of Common Stock that shall be issuable upon the exercise thereof
shall be computed on the basis of the aggregate number of shares of Common
Stock purchasable on exercise of the shares of Junior Preferred Stock so
presented. If any fraction of a share of Common Stock would, after giving
effect to the provisions of this section 6(d), be issuable on the exercise of
any shares of Junior Preferred Stock, the Corporation may, at its sole option,
(i) issue such fractional share or (ii) if it shall elect not to issue
fractions of a share, (A) arrange for the disposition of fractional interests
by those entitled thereto or (B) pay a cash adjustment in respect of any
fractional share in an amount equal to that fraction of the Closing Price per
share of Common Stock (as hereinafter defined) on the trading day immediately
preceding the date of exercise of the shares of Junior Preferred Stock.
For the purpose of any computation under this Article 4.C., the
"Closing Price" per share of Common Stock for any trading day shall be the last
reported sales price regular way or, in case no such reported sale takes place
on such day, the average of the last closing bid and asked prices regular way,
in either case on the principal national securities exchange on which the
Common Stock is then listed or admitted to trading, or if not then listed
-11-
<PAGE> 12
or admitted to trading on any national securities exchange, the closing sales
price for such day reported by the National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ"), if the Common Stock is traded
over-the-counter and quoted in the NASDAQ National Market System, or if the
Common Stock is so traded, but not so quoted, the average of the closing
reported bid and asked prices of the Common Stock as reported by NASDAQ or any
comparable system or, if the Common Stock is not listed on NASDAQ or any
comparable system, the average of the closing bid and asked prices as furnished
by two members of the National Association of Securities Dealers, Inc. selected
from time to time by the Corporation for that purpose. If the Common Stock is
not traded in such manner that the quotations referred to above are available
for the period required hereunder, the closing price per share of Common Stock
shall be deemed the fair value per share of Common Stock as determined in good
faith by the Board of Directors (the determination of which shall be
conclusive).
(e) All shares of Common Stock issued upon the exercise of shares
of Junior Preferred Stock shall be validly issued, fully paid and
nonassessable. Each person in whose name any such certificate for shares of
Common Stock is issued shall for all purposes be deemed to have become the
holder of record of such shares on the date on which the certificate
representing the exercised shares of Junior Preferred Stock was surrendered and
payment of the Exercise Price and any applicable taxes was made, irrespective
of the date of delivery of such certificate for shares of Common Stock, except
that, if the date of such surrender and payment is a date when the stock
transfer books of the Corporation are closed, such person shall be deemed to
have become the holder of such shares at the close of business on the next
succeeding date on which the stock transfer books are open (whether before or
after the Expiration Date) and the Corporation shall be under no duty to
deliver any such certificate until such date.
7. Adjustment of Shares of Common Stock Purchasable and Exercise
Price. The number of shares of Common Stock purchasable upon the exercise of
each share of Junior Preferred Stock pursuant to section 6 of this Article 4.C.
and the Exercise Price shall be subject to adjustment from time to time as
follows:
(a) If the Corporation shall at any time (i) pay a dividend or
distribution on all outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide all of the outstanding shares of Common Stock into a
larger number of shares or (iii) combine all of the outstanding shares of
Common Stock into a smaller number of shares, the number of shares of Common
Stock purchasable upon exercise of each share of Junior Preferred Stock
immediately prior to the record date for any such stock dividend or
distribution or the effective date of any such other event shall be
proportionately adjusted so that each share of Junior Preferred Stock shall
thereafter be exercisable for the number of shares of Common Stock which the
holder of a share of Junior Preferred Stock would have been entitled to receive
after the happening of any of the events described above had such share of
Junior Preferred Stock been exercised immediately prior to the close of
business on such record date or effective date. Such adjustments shall be made
successively whenever any event described above shall occur. An adjustment
made pursuant to this section 7(a) shall become effective retroactively to the
record date in the case of such stock dividend or distribution and shall become
effective on the effective date in the case of such subdivision or combination.
(b) No adjustment in the number of shares of Common Stock
purchasable upon the exercise of each share of Junior Preferred Stock shall be
required to be made unless such adjustment (plus any adjustments not previously
made by reason of this section 7(b)) would require an increase or decrease of
at least 3% in the number of shares of Common Stock purchasable upon exercise
of each share of Junior Preferred Stock, but in such case any adjustment that
would otherwise be required then to be made shall be carried forward and shall
be made at the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to such an
increase or decrease of not less than 3%. If the Corporation shall at any time
issue Common Stock by way of dividend on any stock of the Corporation or
subdivide or combine the outstanding shares of the Common Stock, said amount of
3% (as theretofore increased or decreased, if such amount shall have been
adjusted in accordance with the provisions of this section 7(b)) shall
forthwith be proportionately increased in the case of a combination or
decreased in the case of such a subdivision or stock dividend so as
appropriately to reflect the same. All calculations under this section 7 shall
be made to the nearest one thousandth of a share.
-12-
<PAGE> 13
(c) As used in this section 7, "Common Stock" shall mean (i) the
class of stock designated as the Common Stock at the date hereof, or (ii) any
other class of stock resulting from successive changes or reclassifications of
shares of such Common Stock consisting solely of changes in par value, or from
par value to no par value, or from no par value to par value.
(d) Upon each adjustment of the number of shares of Common Stock
purchasable upon the exercise of each share of Junior Preferred Stock pursuant
to this section 7, the Exercise Price shall be adjusted by multiplying the
Exercise Price in effect immediately prior to such adjustment by a fraction, of
which the numerator shall be the number of shares of Common Stock purchasable
upon the exercise of each share of Junior Preferred Stock immediately prior to
such adjustment, and of which the denominator shall be the number of shares of
Common Stock so purchasable immediately thereafter.
(e) In case of any capital reorganization of the Corporation, or
of any reclassification or similar change of outstanding shares of Common Stock
(other than as set forth in section 7(a) of this Article 4.C.), or in case of
any consolidation of the Corporation with, or merger of the Corporation with or
into, any other corporation or other entity (other than a merger which does not
result in any reclassification, conversion, exchange or redemption of
outstanding shares of Common Stock), each share of Junior Preferred Stock shall
after such capital reorganization, reclassification, change, consolidation or
merger be exercisable, upon the terms and conditions specified herein, only for
the number of shares of stock or other securities or property, including cash,
to which a holder of the number of shares of Common Stock purchasable upon
exercise of such share of Junior Preferred Stock would have been entitled upon
such capital reorganization, reclassification, change, consolidation or merger
had such share of Junior Preferred Stock been exercised immediately prior to
the effective date of such event; and, in any such case, appropriate
adjustments (as determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the shares of Junior Preferred Stock to
the end that the provisions set forth herein (including provisions with respect
to changes in and other adjustments of the Exercise Price) shall thereafter be
applicable, so nearly as may reasonably be, in relation to any shares of stock
or other securities thereafter deliverable upon the exercise of shares of
Junior Preferred Stock.
(f) Whenever the number of shares of Common Stock purchasable upon
the exercise of each share of Junior Preferred Stock or the Exercise Price is
adjusted as herein provided:
(i) the Corporation shall compute such adjustment in
accordance with this section 7 and shall forthwith file with the
transfer agent for the Junior Preferred Stock a certificate signed by
the financial officer of the Corporation setting forth the number of
shares of Common Stock purchasable on exercise of each share of Junior
Preferred Stock after such adjustment and showing in reasonable detail
the method of calculation of such adjustment and the facts requiring
the adjustment and upon which such calculation is based, and setting
forth the Exercise Price after such adjustment, and such certificate
shall be conclusive evidence of the matters set forth therein; and
(ii) notice of such adjustment, setting forth the number
of shares of Common Stock purchasable upon the exercise of each share
of Junior Preferred Stock after such adjustment and the adjusted
Exercise Price, shall be sent by first class mail, postage prepaid, by
the transfer agent for the Junior Preferred Stock to each holder of
record of shares of Junior Preferred Stock at its address appearing on
the stock register of the Corporation.
(g) The Corporation shall take no action that would result in an
adjustment of the Exercise Price to an amount less than the par value of a
share of Common Stock.
-13-
<PAGE> 14
(h) The Corporation shall from time to time promptly pay all
documentary, stamp, transfer or other transactional taxes and charges
attributable to the issuance of shares of Common Stock upon the exercise of
shares of Junior Preferred Stock, but the Corporation shall not be obligated to
pay any tax or taxes which may be payable in respect of any transfer involved
in the issue of any certificates for shares of Common Stock (or any other
securities) upon exercise of shares of Junior Preferred Stock in a name other
than that of the record holder of the certificate surrendered upon the exercise
of a share of Junior Preferred Stock, and the Corporation shall not be required
to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Corporation the amount
of such tax or shall have established to the satisfaction of the Corporation
that such tax has been paid.
8. Automatic Conversion.
(a) At 5:00 p.m., Central Time, on the Early Automatic Conversion
Date (as hereinafter defined), all of the outstanding shares of Junior
Preferred Stock not previously exercised at the option of the holder in
accordance with the provisions of section 6 of this Article 4.C. shall be,
without any action on the part of the holder or the Corporation, automatically
converted into shares of Common Stock at a conversion rate of .001 of a fully
paid and nonassessable share of Common Stock, subject to adjustment as provided
in section 9 of this Article 4.C. (such rate, as so adjusted, is hereinafter
referred to as the "Conversion Rate"), for each share of Junior Preferred
Stock. The "Early Automatic Conversion Date" shall be the date that is 30 days
after the first date (the "Trigger Date") on which the Closing Price per share
of Common Stock (determined as provided in section 6(d) of this Article 4.C.)
for each of the immediately preceding 40 consecutive trading days shall have
exceeded 200% of the Exercise Price in effect on such trading day. Within 10
days following the Trigger Date, the Corporation shall mail, or cause to be
mailed, a notice of conversion to each record holder of shares of Junior
Preferred Stock; provided, however, that no failure to give such notice nor any
defect therein shall affect the validity of the proceedings for the conversion
of any shares of Junior Preferred Stock. The notice of conversion shall state:
(i) the Early Automatic Conversion Date;
(ii) that at 5:00 p.m., Central Time, on the Early
Automatic Conversion Date, all outstanding shares of Junior Preferred
Stock not previously exercised at the option of the holder in
accordance with the provisions of section 6 of this Article 4.C. shall
be, without any action on the part of the holders or the Corporation,
automatically converted into fully paid and nonassessable shares of
Common Stock at the Conversion Rate; and
(iii) the Exercise Price in effect on the date of such
notice, the number of shares of Common Stock purchasable upon the
exercise of each share of Junior Preferred Stock on such date, the
place or places where the shares of Junior Preferred Stock may be
surrendered for exercise prior to 5:00 p.m., Central Time, on the
Early Automatic Conversion Date, and that the right to exercise the
shares of Junior Preferred Stock will terminate at 5:00 p.m., Central
Time, on the Early Automatic Conversion Date.
(b) At 5:00 p.m., Central Time, on the Scheduled Automatic
Conversion Date, all outstanding shares of Junior Preferred Stock not
previously exercised at the option of the holder in accordance with the
provisions of section 6 of this Article 4.C. shall be, without any action on
the part of the holder or the Corporation, automatically converted into shares
of Common Stock at the Conversion Rate.
(c) Upon automatic conversion of the Junior Preferred Stock
pursuant to either section 8(a) or 8(b) of this Article 4.C., each share of
Junior Preferred Stock outstanding at 5:00 p.m., Central Time, on the Early
Automatic Conversion Date or Scheduled Automatic Conversion Date, as the case
may be (each of such dates is herein referred to as the "Automatic Conversion
Date"), shall be converted automatically, without any action by the holder of
such shares or the Corporation, and whether or not the certificates
representing such shares are surrendered to the Corporation or the transfer
agent for the Junior Preferred Stock; provided, that the Corporation shall not
be obligated to issue to any holder certificates evidencing the shares of
Common Stock issuable upon such conversion unless certificates evidencing the
shares of Junior Preferred Stock, endorsed directly or through stock
-14-
<PAGE> 15
powers to the Corporation or in blank and accompanied when appropriate with
evidence of the signatory's authority, are either delivered to the Corporation
or the transfer agent for the Junior Preferred Stock. As promptly as
practicable after the Automatic Conversion Date (and after surrender of the
certificate or certificates representing shares of Junior Preferred Stock to
the Corporation or the transfer agent for the Junior Preferred Stock), the
Corporation shall issue and deliver to or upon the written order of the holder
of shares of Junior Preferred Stock surrendered for conversion a certificate or
certificates for the number of full shares of Common Stock to which such holder
is entitled upon conversion. The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become a
holder of record of such Common Stock on the Automatic Conversion Date.
(d) The full number of shares of Common Stock issuable upon the
conversion of shares of Junior Preferred Stock held by any holder of Junior
Preferred Stock shall be computed on the basis of the aggregate number of
shares of Junior Preferred Stock held by such holder. With respect to any
fractional share of Common Stock issuable in connection with conversion of
shares of Junior Preferred Stock on the Automatic Conversion Date, the
Corporation may, at its sole option, (i) issue such fractional share or (ii) if
it shall elect not to issue fractions of a share, (A) arrange for the
disposition of fractional interests by those entitled thereto or (B) pay a cash
adjustment in respect of any fractional share in an amount equal to that
fraction of the Closing Price per share of Common Stock on the trading day
immediately preceding such conversion.
(e) The Corporation shall from time to time promptly pay all
documentary, stamp, transfer or other transactional taxes and charges
attributable to the issuance of shares of Common Stock upon the conversion of
shares of Junior Preferred Stock, but the Corporation shall not be obligated to
pay any tax or taxes which may be payable in respect of any transfer involved
in the issue of any certificates for shares of Common Stock (or any other
securities) upon conversion of shares of Junior Preferred Stock in a name other
than that of the registered holder of the certificate evidencing the converted
share of Junior Preferred Stock, and the Corporation shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Corporation the amount
of such tax or shall have established to the satisfaction of the Corporation
that such tax has been paid.
9. Adjustment of Conversion Rate. The Conversion Rate shall be
subject to the following adjustments:
(a) If the Corporation shall at any time pay a dividend or
distribution on all outstanding shares of Common Stock in shares of Common
Stock, subdivide all of the outstanding shares of Common Stock into a larger
number of shares or combine all of the outstanding shares of Common Stock into
a smaller number of shares, the Conversion Rate in effect immediately prior to
the record date for any such stock dividend or distribution or the effective
date of any such other event shall be proportionately adjusted so that the
holder of each share of Junior Preferred Stock shall thereafter be entitled to
receive upon the conversion of such share the aggregate number of shares of
Common Stock that such holder would have been entitled to receive after the
happening of any of the events described above had such share of Junior
Preferred Stock been converted immediately prior to the close of business on
such record date or effective date. Such adjustments shall be made
successively whenever any event described above shall occur. The adjustments
herein provided for shall become effective immediately following the record
date for any such stock dividend or distribution or the effective date of any
such other event. An adjustment made pursuant to this section 9(a) shall
become effective retroactively to the record date in the case of such stock
dividend or distribution and shall become effective on the effective date in
the case of such subdivision or combination.
(b) In the event of any capital reorganization of the Corporation
or any reclassification or similar change of outstanding shares of Common Stock
(other than as set forth in section 9(a) above), or in the event of the
consolidation or merger of the Corporation with or into another corporation or
other entity (other than a merger which does not result in any
reclassification, conversion, exchange or redemption of outstanding shares of
Common Stock), each share of Junior Preferred Stock shall, after such capital
reorganization, reclassification, change, consolidation or merger be
convertible only into the number of shares of stock or other securities or
property, including cash, to which a holder of the number of shares of Common
Stock deliverable upon conversion of such
-15-
<PAGE> 16
share of Junior Preferred Stock would have been entitled upon such capital
reorganization, reclassification, change, consolidation or merger had such
share of New Junior Preferred Stock been converted immediately prior to the
effective date of such event; and, in any such case, appropriate adjustments
(as determined by the Board of Directors) shall be made in the application of
the provisions herein set forth with respect to the rights and interests
thereafter of the holders of the shares of Junior Preferred Stock to the end
that the provisions set forth herein (including provisions with respect to
changes in and other adjustments of the Conversion Rate) shall thereafter be
applicable, so nearly as may reasonably be, in relation to any shares of stock
or other securities thereafter deliverable upon the conversion of shares of
Junior Preferred Stock.
(c) No adjustment in the Conversion Rate shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
section 9(c)) would require an increase or decrease of at least 3% in the
number of shares of Common Stock into which each share of Junior Preferred
Stock is then convertible; provided, however, that any adjustments which are
not required to be made by reason of this section 9(c) shall be carried forward
and taken into account in any subsequent adjustment. If the Corporation shall
at any time issue Common Stock by way of dividend on any stock of the
Corporation or subdivide or combine the outstanding shares of the Common Stock,
said amount of 3% (as theretofore increased or decreased, if such amount shall
have been adjusted in accordance with the provisions of this section 9(c))
shall forthwith be proportionately increased in the case of a combination or
decreased in the case of such a subdivision or stock dividend so as
appropriately to reflect the same. All calculations under this section 9 shall
be made to the nearest one thousandth of a share.
(d) The Corporation shall take no action that would result in an
adjustment to the Conversion Rate such that shares of Common Stock would be
issued at a conversion price for the liquidation preference, plus accumulated
and unpaid dividends, of a converted share of Junior Preferred Stock of less
than the then par value of the Common Stock.
(e) Whenever the Conversion Rate or terms of conversion are
adjusted as herein provided, the Corporation shall forthwith file with the
transfer agent for the Junior Preferred Stock a certificate signed by the chief
financial officer of the Corporation, stating the adjusted Conversion Rate
determined as provided herein. Such certificate shall show in reasonable
detail the method of calculation of such adjustment and the facts requiring
such adjustment. Whenever the Conversion Rate is adjusted, the Corporation
will forthwith cause a notice stating the adjustment and the Conversion Rate to
be sent by first class mail, postage prepaid, to each holder of record of
shares of Junior Preferred Stock at its address appearing on the stock register
of the Corporation.
10. Certain Notices. If at any time any of the following events
shall occur:
(i) the Corporation shall declare a dividend (or any
other distribution) on its shares of Common Stock payable otherwise
than in cash (excluding dividends payable in Common Stock for which
adjustments are made pursuant to sections 7(a) and 9(a) of this
Article 4.C.); or
(ii) the Corporation shall authorize any capital
reorganization, recapitalization, subdivision or reclassification of
the shares of the Common Stock (other than a subdivision or
combination of the outstanding shares of Common Stock or a change in
par value, or from par value to no par value, or from no par value to
par value), or any consolidation or merger to which it is a party and
for which approval of the holders of the Common Stock is required, or
the sale of all or substantially all of its assets; or
(iii) the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Corporation shall be proposed;
then the Corporation shall cause to be filed with the transfer agent for the
Junior Preferred Stock, and shall cause to be sent to each record holder of
shares of Junior Preferred Stock at least 20 days (or 10 days in any case
specified in clause (i) above) prior to the applicable record date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend or distribution or, if a record is not to be
taken, the date as of which the holders of shares of Common Stock of record to
be entitled to such dividend or distribution
-16-
<PAGE> 17
are to be determined or (B) the date on which such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
shares of Common Stock of record shall be entitled to exchange their shares for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up. Failure
to give any such notice or any defect therein shall not affect the legality or
validity of the proceedings referred to in clauses (i), (ii) and (iii) above or
any action or vote taken in connection with any thereof.
11. Redemption. The shares of Junior Preferred Stock shall not be
redeemable by the Corporation.
12. Reacquired Shares. Any shares of Junior Preferred Stock
acquired by the Corporation in connection with the exercise or conversion of
such shares pursuant to the provisions of this Article 4.C shall be retired
promptly after the acquisition thereof. All such shares shall upon their
retirement become authorized but unissued shares of Preferred Stock without
designation as to series, until any such shares are once more designated as
part of a series by the Board of Directors in accordance with the Certificate
of Incorporation and applicable law, subject to the conditions and restrictions
on issuance set forth herein.
13. Reservation of Shares. The Corporation shall at all time
reserve and keep available, out of its authorized but unissued shares of Common
Stock or out of shares of Common Stock held in its treasury, the full number of
shares of Common Stock into which all shares of Junior Preferred Stock from
time to time outstanding are exercisable or may automatically convert and
shall, if necessary, take all requisite action to increase its authorized but
unissued shares of Common Stock to enable it to fulfill its obligations
hereunder.
14. Limitation of Rights. Except as expressly set forth in this
Certificate of Incorporation, the holders of the Junior Preferred Stock shall
have no rights other than those provided by applicable law.
D. Common Stock.
Except as expressly set forth herein or in the bylaws of the
Corporation, the holders of outstanding shares of Common Stock shall have no
other rights other than those provided by Delaware law.
1. Voting Rights. Subject to any voting rights (inclusive or
exclusive) which may vest in holders of Preferred Stock (whether now existing
or hereafter created), each record holder of Common Stock shall be entitled to
one vote for each share of Common Stock standing in such holder's name on the
books of the Corporation on all matters submitted to a vote of the stockholders
of the Corporation generally.
2. Dividends. Subject to the preferential dividend rights of the
holders of any series of Preferred Stock then outstanding (whether now existing
or hereafter created), and subject to the other provisions of this Certificate
of Incorporation, the holders of outstanding shares of Common Stock shall be
entitled to receive such dividends and other distributions in cash, stock or
property of the Corporation as may be declared thereon by the Board of
Directors out of assets or funds of the Corporation legally available therefor.
3. Liquidation. In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
after payment or provision for payment by the Corporation of its debts and
other liabilities and the preferential amounts to which the holders of any
stock ranking prior to the Common Stock in order of preference as to
distributions in such event are entitled upon such event, the holders of the
Common Stock and the holders of any other stock ranking on a parity with the
Common Stock in order of preference as to distributions upon such event will be
entitled to share in the remaining assets of the Corporation, if any, according
to their respective interests.
ARTICLE 5
The Corporation shall not create, designate, authorize or cause to be
issued any class or series of nonvoting stock. The Senior Preferred Stock and
the Junior Preferred Stock (each as defined in Article 4 hereof) shall not
-17-
<PAGE> 18
be deemed to be nonvoting stock within the meaning of, and shall not be subject
to the restrictions contained in, this Article 5.
ARTICLE 6
The number of directors which shall constitute the whole Board of
Directors of the Corporation shall be as specified pursuant to the bylaws of
the Corporation and may be altered from time to time as may be provided
therein. The Board of Directors shall be divided into three classes, Class I,
Class II and Class III. Such classes shall be as nearly equal in number of
directors as possible. Each director shall serve for a term expiring at the
third annual meeting following the annual meeting at which such director was
elected; provided, however, that the directors first elected to Class I shall
serve for an initial term expiring at the annual meeting following the end of
the Corporation's 1993 fiscal year, the directors first elected to Class II
shall serve for an initial term expiring at the second annual meeting next
following the end of the Corporation's 1993 fiscal year, and the directors
first elected to Class III shall serve for an initial term expiring at the
third annual meeting next following the end of the Corporation's 1993 fiscal
year. The foregoing notwithstanding, except as otherwise provided in this
Certificate of Incorporation or any resolution or resolutions of the Board of
Directors designating a series of Preferred Stock, directors shall hold office
for the term for which elected and until their successors are elected and
qualified or until their earlier death, resignation or removal. Whenever the
holders of any class or classes of stock or any one or more series thereof
shall be entitled to elect one or more directors pursuant to the provisions of
this Certificate of Incorporation or any resolution or resolutions of the Board
of Directors designating a series of Preferred Stock, and except as otherwise
provided herein or therein, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series then in office, by a sole remaining director
so elected or by the unanimous written consent or the affirmative vote of a
majority of the outstanding shares of such class or classes or series entitled
to elect such director or directors. Whenever the holders of any one or more
series of Preferred Stock shall be entitled to elect one or more directors
pursuant to the provisions of this Certificate of Incorporation or any
resolution or resolutions of the Board of Directors designating a series of
Preferred Stock, such directors shall not be divided into classes pursuant to
the second and third sentences of this Article 6, and instead the election,
term, removal and filling of vacancies in respect of such directors shall be
governed by the provisions of such series of Preferred Stock.
ARTICLE 7
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the bylaws of the Corporation, in any manner not inconsistent
with the laws of the State of Delaware or this Certificate of Incorporation.
Notwithstanding the preceding sentence of this Article 7, the consent of the
holders of a majority of the outstanding shares of Common Stock, voting
separately as a class, in person or by proxy, either in writing without a
meeting of stockholders, at an annual meeting of stockholders or at a special
meeting of stockholders called for the purpose, shall be required for any
repeal, alteration, amendment or rescission of Section 3.03 of the
Corporation's bylaws. The provisions of the immediately preceding sentence
shall terminate and expire, and be of no further force or effect, upon the
earlier to occur of (i) the date of termination of the Voting Agreement (as
hereinafter defined) and (ii) the first date on which the number of outstanding
shares of Common Stock owned of record by any one or more of the Prudential
Entities (as hereinafter defined) or any nominee of any thereof plus the number
of outstanding Trust Shares (as defined in the Voting Agreement) shall, in the
aggregate, be less than 756,100. As used in this paragraph, the term
"Prudential Entities" shall mean, collectively, The Prudential Insurance
Company of America, Pruco Life Insurance Company and PruSupply Inc., and the
term "Voting Agreement" shall mean the Voting Agreement dated as of December
14, 1993 among Santa Fe Energy Resources, Inc., SFER Pipeline, Inc. and the
Prudential Entities.
ARTICLE 8
A. The Corporation reserves the right to amend, alter, change, or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation.
-18-
<PAGE> 19
B. The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of the State of Delaware, as amended from time
to time, indemnify all persons whom it may indemnify pursuant thereto.
C. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. If the General Corporation Law
of the State of Delaware is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of this section 8C by the stockholders of
the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
IN WITNESS WHEREOF, said Hadson Corporation has caused this Restated
Certificate of Incorporation to be signed by Robert P. Capps, its Executive
Vice President, and attested by Debbie Bourbonnais, its Assistant Secretary
this 14th day of December, 1993.
HADSON CORPORATION
By: /s/ ROBERT P. CAPPS
_________________________________________
Robert P. Capps, Executive Vice President
/s/ DEBBIE BOURBONNAIS
_______________________________________
Debbie Bourbonnais, Assistant Secretary
-19-
<PAGE> 1
EXHIBIT 4.2
================================================================================
AMENDED AND RESTATED BY-LAWS
OF
HADSON CORPORATION
(DECEMBER 1993)
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Article I -- Offices
Section 1.01. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article II -- Meeting of Stockholders
Section 2.01. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.02. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.03. Quorum; Adjournment of Meetings . . . . . . . . . . . . . . . . 3
Section 2.04. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.05. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.06. Action without Meeting . . . . . . . . . . . . . . . . . . . . 4
Article III -- Directors
Section 3.01. Number; Term; Qualifications . . . . . . . . . . . . . . . . . 4
Section 3.02. Resignations . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.03. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.04. Removal of Directors . . . . . . . . . . . . . . . . . . . . . 5
Section 3.05. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.06. Committees of the Board . . . . . . . . . . . . . . . . . . . . 6
Section 3.07. Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.08. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.09. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.10. Action without Meeting;
Presence at Meetings . . . . . . . . . . . . . . . . . . . . 8
Article IV -- Officers
Section 4.01. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.02. Other Officers and Agents . . . . . . . . . . . . . . . . . . . 9
Section 4.03. Resignation; Removal . . . . . . . . . . . . . . . . . . . . . 9
Section 4.04. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . 10
Section 4.05. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.06. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Article IV -- Officers (continued)
Section 4.07. Chief Financial Officer . . . . . . . . . . . . . . . . . . . . 11
Section 4.08. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.09. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.10. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . 12
Section 4.11. Assistant Treasurers . . . . . . . . . . . . . . . . . . . . . 12
Section 4.12. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 13
Article V -- Miscellaneous
Section 5.01. Certificates of Stock . . . . . . . . . . . . . . . . . . . . . 13
Section 5.02. Transfer Agents and Registrars . . . . . . . . . . . . . . . . 14
Section 5.03. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.04. Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.05. Record Date for Stockholders . . . . . . . . . . . . . . . . . 15
Section 5.06. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.07. Registered Stockholders . . . . . . . . . . . . . . . . . . . . 16
Section 5.08. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.09. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.10. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5.11. Execution of Proxies . . . . . . . . . . . . . . . . . . . . . 17
Section 5.12. Notice and Waiver of Notice . . . . . . . . . . . . . . . . . . 17
Article VI -- Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
ii
<PAGE> 4
AMENDED AND RESTATED BY-LAWS
OF
HADSON CORPORATION
ARTICLE I
Offices
SECTION 1.01. Registered Office. The registered office of the
Corporation in the State of Delaware shall be established and maintained at the
office of The Corporation Trust Company, in the city of Wilmington, County of
New Castle, State of Delaware, and said corporation shall be the Registered
Agent of this Corporation in charge thereof.
SECTION 1.02. Other Offices. The principal place of business of
the Corporation shall be in Oklahoma City, Oklahoma and the Corporation may
have other offices at such place or places as the Board of Directors may from
time to time appoint or the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.01. Annual Meetings. Annual meetings of the stockholders
for the election of directors and for the transaction of any proper business
shall be held at such place, either within or without the State of Delaware,
and at such time and date as the Board of Directors by resolution shall
determine and as set forth in the notice of the meeting. If the annual meeting
of stockholders is not held on the date designated therefor, the Board of
Directors shall cause the meeting to be held as
<PAGE> 5
soon thereafter as convenient. At each annual meeting the stockholders
entitled to vote shall elect a Board of Directors and they may transact such
other corporate businesss as may properly be brought before the meeting.
SECTION 2.02. Voting. Each stockholder entitled to vote in
accordance with the terms of the Certificate of Incorporation of the
Corporation and any Certificates of Designations thereunder, in each case as
the same may be amended from time to time (collectively, the "Certificate of
Incorporation"), and in accordance with the provisions of these By-Laws shall
be entitled to one vote, (except as otherwise provided in the Certificate of
Incorporation), in person or by proxy, for each share of stock outstanding and
entitled to vote held by such stockholder, but no proxy shall be voted after
three years from its date unless such proxy provides for a longer period. Upon
the demand of any stockholder, the vote for directors and the vote upon any
question before the meeting shall be by written ballot. When a quorum in
present at any meeting, the vote of the holders of a majority of the shares of
stock outstanding and having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of a statute or of the
Certificate of Incorporation a different vote is required, in which case such
express provision shall govern and control the decision of such question.
The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city or town where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list
2
<PAGE> 6
shall also be produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present.
SECTION 2.03. Quorum; Adjournment of Meetings. Except as otherwise
required by statute or by the Certificate of Incorporation, at all meetings of
stockholders, the presence, in person or by proxy, of the holders of a majority
of the shares of stock outstanding and entitled to vote thereat on any specific
matter shall be requisite for and shall constitute a quorum for the vote on
such matter, provided that (i) where a separate vote by any class of stock is
required for any specific matter by statute or the Certificate of
Incorporation, the presence, in person or by proxy, of the holders of a
majority of the outstanding shares of such class entitled to vote on such
matter thereat shall be requisite for and shall constitute a quorum for the
vote on such matter by such class and (ii) where the vote of one or more
classes of stock is required for any specific matter by statute or the
Certificate of Incorporation and the shares of any such class carry more or
less than one vote per share, the presence, in person or by proxy, of the
holders of the outstanding shares of such stock entitled to vote on such matter
thereat and representing a majority of the votes entitled to be cast by the
outstanding shares of such class or classes entitled to vote on such matter
thereat shall be requisite for and shall constitute a quorum for the vote on
such matter by such class or classes. Except as otherwise provided in the
Certificate of Incorporation, in case a quorum shall not be present at any
meeting, the chairman of the meeting or the holders of a majority of such
shares or of such shares representing a majority of such votes, as the case may
be, present at such meeting, in person or by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, until the requisite amount of shares entitled to vote shall be
present or represented. Except as otherwise provided in the Certificate of
Incorporation, the chairman of any meeting of stockholders, whether or not a
quorum is present, shall have the power to adjourn such meeting from time to
time, without notice other than announcement at the
3
<PAGE> 7
meeting. If any such adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At any such adjourned meeting at which the requisite
amount of shares entitled to vote shall be present or represented, any business
may be transacted which might have been transacted at the meeting as originally
notified.
SECTION 2.04. Special Meetings. Special meetings of the
stockholders for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman
of the Board, the President or the Secretary at the request of the Board of
Directors or at the request in writing of the holders of a majority of the
shares of stock outstanding and having voting power. Such request shall state
the purpose or purposes of the proposed meeting. Special meetings may be held
at such time and place, within or without the State of Delaware, as shall be
stated in the notice of the meeting.
SECTION 2.05. Notice of Meetings. Written notice, stating the
place, date and time of any meeting, annual or special, and, if a special
meeting, the purpose or purposes for which the meeting is called, shall be
given to each stockholder entitled to vote thereat, not less than ten or more
than sixty days before the date of the meeting.
SECTION 2.06. Action without Meeting. Unless otherwise provided in
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of the stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less that the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present an voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be
4
<PAGE> 8
given to those stockholders who have not consented in writing.
ARTICLE III
Directors
SECTION 3.01. Number; Term; Qualifications. The number of
directors which shall constitute the whole Board of Directors shall be
equal to (i) eight (8) plus (ii) such number of additional directors
as may from time to time be electable by the holders of any series of
preferred stock of the Corporation pursuant to the terms thereof. The
foregoing notwithstanding, except as otherwise provided in the
Certificate of Incorporation or any resolution or resolutions of the
Board of Directors designating a series of preferred stock of the
Corporation, directors shall hold office for the term for which
elected and until their successors are elected and qualified or until
their earlier death, resignation or removal. Except as otherwise
provided in the Certificate of Incorporation, directors need not be
stockholders.
5
<PAGE> 9
SECTION 3.02. Resignations. Any director or member of a committee
may resign at any time. Such resignation shall be made in writing and shall
take effect at the time specified therein or, if no time be specified, at the
time of its receipt by the Chairman of the Board, the President or the
Secretary. The acceptance of a resignation shall not be necessary to make it
effective.
SECTION 3.03. Vacancies. Except as otherwise provided herein or in
the Certificate of Incorporation, vacancies (whether resulting from the death,
resignation or removal of a director) and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director.
Whenever the holders of any class or classes of stock or any series
thereof shall be entitled to elect one or more directors pursuant to the
provisions of the Certificate of Incorporation or any resolution or resolutions
of the Board of Directors desiganting a series of preferred stock of the
Corporation, and except as otherwise provided herein or therein, vacancies and
newly created directorships of such class or classes or series thereof may be
filled by a majority of the directors elected by such class or classes or
series thereof then in office or by a sole remaining director so elected.
Notwithstanding the preceding provisions of this Section 3.03, if
there shall exist any vacancy on the Board of Directors as a result of the
death, resignation or removal of (i) a director of the Company designated by
the Prudential Entities (as hereinafter defined) pursuant to and in accordance
with the Voting Agreement (as hereinafter defined) or (ii) a director of the
Company jointly designated by the Prudential Entities and Santa Fe Energy
Resources, Inc. ("Santa Fe") pursuant to and in accordance with the Voting
Agreement, such vacancy may not be filled by action of the Board of Directors
unless the person appointed by the Board of Directors to fill such vacancy has
been designated by the Prudential Entities or jointly designated by the
Prudential Entities and Santa Fe, as the case may be, pursuant to and in
accordance with the Voting Agreement. The provisions of the immediately
preceding sentence shall terminate and expire, and be of no further force or
effect, upon the earlier to occur of (i) the date of termination of the Voting
Agreement and (ii) the first date on which the number of outstanding shares of
Common Stock owned of record by any one or more of the Prudential Entities or
any nominee of any thereof plus the number of outstanding Trust Shares (as
defined in the Voting Agreement) shall, in the aggregate, be less than 756,100.
As used in this paragraph, the term "Prudential Entities" shall mean,
collectively, The Prudential Insurance Company of America, Pruco Life
Insurance Company and PruSupply Inc., and the term "Voting Agreement" shall
mean the Voting Agreement dated as of December 14, 1993 among Santa Fe, SFER
Pipeline, Inc. and the Prudential Entities."
SECTION 3.04. Removal of Directors. Any director or all directors
may be removed for cause, but only by the affirmative vote or written consent
of the holders of not less than a majority of the outstanding shares then
entitled to vote at an election of directors.
SECTION 3.05. Powers. The business and affairs of the Corporation
shall be managed by the Board of Directors, which may exercise all the powers
of the Corporation and do all lawful acts and things which are not conferred
upon or reserved to the stockholders by law, by the Certificate of
Incorporation or by these By-Laws.
SECTION 3.06. Committees of the Board. The Board of Directors may,
by resolution passed by a majority of the whole Board of Directors, designate
one or more committees, each committee to consist of two or more of the
directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified
6
<PAGE> 10
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless a
resolution of the Board of Directors or the Certificate of Incorporation
expressly so provides, no such committee shall have the power or authority to
declare a divided or to authorize the issuance of stock. Such committee or
committees shall have such names as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
7
<PAGE> 11
SECTION 3.07. Meetings.
(a) Time. Meeting shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
(b) Place. Meetings shall be held at such place within or without the
State of Delaware as shall be fixed by the Board.
(c) Call. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice-Chairman of the Board,
if any, the President, or the Secretary, and shall be called by any of such
officers upon the written request of two directors.
(d) Notice or Actual of Constructive Waiver. No notice shall be required
for regular meetings for which the time and place have been fixed. A notice of
the place, date and time and of the purpose or purposes of each special meeting
of the Board and each committee meeting shall be given to each director by
mailing the same (by registered mail) at least four (4) days before the special
meeting, or by telegraphing or telecopying (with confirmation received) the
same or by delivering the same personally not later than 24 hours prior to such
meeting. Notice need not be given to any director or to any member of a
committee of directors who submits a written waiver of notice signed by him
before or after the time for the meeting stated therein. Attendance of any
such person at a meeting shall constitute a waiver of notice of such meeting,
except when he attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose, of any regular, special, or committee meeting
of the directors need be specified in any written waiver of notice.
SECTION 3.08. Quorum. Not less than a majority of the total number of
8
<PAGE> 12
directors shall constitute a quorum for the transaction of business. If at any
meeting of the Board of Directors there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given other than by
announcement at the meeting which shall be so adjourned. The vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors unless a statute or the Certificate
of Incorporation shall require a vote of a greater number.
SECTION 3.09. Compensation. Directors shall not receive any stated
salary for their services as directors or as members of committees, but by
resolution of the Board of Directors a fixed fee and expenses of attendance may
be allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity as an officer, agent or otherwise and receiving compensation therefor.
SECTION 3.10. Action without Meeting; Presence at Meetings. Unless
otherwise restricted in the Certificate of Incorporation, any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all the members of the
Board of Directors or the committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Unless otherwise restricted by the Certificate of Incorporation,
members of the Board of Directors, or any committee designated by such Board,
may participate in a meeting of such Board or committee by means of conference
telephone or
9
<PAGE> 13
similar communications equipment by means of which all persons participating in
the meeting can hear one another, and such participation in a meeting shall
constitute presence in person at such meeting.
ARTICLE IV
Officers
SECTION 4.01. Officers. The officers of the Corporation shall be
the President and a Secretary and a Treasurer, all of whom shall be elected by
the Board of Directors, and who shall hold office until their successors shall
be elected and qualified. The Board of Directors also may elect a Chairman of
the Board, one or more Vice Presidents and one or more Assistant Secretaries
and Assistant Treasurers. The officers shall be elected annually by the Board
of Directors at its first meeting following the annual meeting of stockholders
and shall hold office until their successors are chosen and qualify. Any
number of officers may be held by the same person.
SECTION 4.02. Other Officers and Agents. The Board of Directors
may appoint such other officers and agents as may from time to time appear to
be necessary or advisable in the conduct of the affairs of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined form time to time by the Board of
Directors.
SECTION 4.03. Resignation; Removal. Any officer may resign at
anytime. Such resignation shall be made in writing and shall take effect at
the time specified therein, and if no time be specified, at the time of its
receipt by the Chairman of the Board, the President or the Secretary. The
acceptance of a resignation shall not be necessary to make it effective. Any
officer may be removed, for or without cause, at
10
<PAGE> 14
any time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office shall be filled for the unexpired portion of
the term by the Board of Directors.
SECTION 4.04. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board of Directors and shall perform all
other duties as may be assigned to him from time to time by the Board of
Directors and shall have such further powers as may be conferred upon him by
the Board of Directors.
SECTION 4.05. President. The President may be the Chief Executive
Officer of the Company. The President shall have general and active control of
the Company's business, finances and affairs, subject to the control of the
Board of Directors. Except as may otherwise be provided by the Board of
Directors from time to time, the President shall have general power to execute
bonds, deeds, contracts, conveyances and other instruments in the name of the
Company and to affix the corporate seal; to appoint all employees and agents of
the Company whose appointment is not otherwise provided for and to fix the
compensation thereof subject to the provisions of these By-Laws and subject to
the approval of the Board of Directors; to remove or suspend any employee or
agent who shall not have been appointed by the Board of Directors; to suspend
for cause, pending final action by the body which shall have appointed him, any
officer other than an elected officer, or any employee or agent who shall have
been appointed by the Board of Directors. In the absence of the Chairman of
the Board, or in the event of the inability of the Chairman of the Board to
act, the President shall have authority to exercise the power and perform the
duties of the Chairman of the Board. He shall have such further powers and
duties as may be conferred on him by the Board of Directors.
SECTION 4.06. Vice Presidents. The Vice Presidents, if any,
respectively shall have such powers and perform such duties as may be assigned
to them from time to time by the Board of Directors or the President. In the
absence of the Chairman of the
11
<PAGE> 15
Board and the President, or in the event of the inability of the Chairman of
the Board and the President to act, the Vice Presidents, if any, in the order
of their annual election, shall have authority to exercise the power and
perform the duties of the Chairman of the Board and of the President.
SECTION 4.07. Chief Financial Officer. The Chief Financial Officer
("CFO") shall have general custody of all the funds and securities of the
Corporation and have general supervision of the collection and disbursement of
funds of the Corporation. The CFO shall endorse on behalf of the Corporation
for collection checks, notes, and other obligations, and shall deposit the same
to the credit of the Corporation in such bank or banks or depositories as the
Board of Directors may designate. The CFO may sign alone or with the
President, or such other person or persons as may be designated for the purpose
by the Board of Directors, all bills of exchange, financing agreements,
security agreements, or promissory notes of the Corporation. The CFO shall
enter or cause to be entered regularly in the books of the Corporation full and
accurate account of all moneys received and paid on account of the Corporation;
shall at all reasonable times exhibit the Corporation's books and accounts to
any director of the Corporation upon application at the office of the
Corporation during business hours; and, whenever required by the Board of
Directors or the President, shall render a statement of the accounts. The CFO
shall perform all the duties incident to the officer of Chief Financial Officer
and such other duties as may be prescribed from time to time by the Board of
Directors, the President or by the By-Laws.
SECTION 4.08. Treasurer. Unless otherwise provided by the Board of
Directors, the Treasurer shall perform all duties as may be prescribed from
time to time by the Chief Financial Officer.
12
<PAGE> 16
SECTION 4.09. Secretary. The Secretary shall attend all meetings
of the Board of Directors and the stockholders and shall record all votes and
the minutes of all proceedings in a book to be kept for that purpose and shall,
when requested, perform like duties for all committees of the Board of
Directors. He shall attend to the giving of notice of all meetings of the
stockholders and, if notice is required, of meetings of the Board of Directors
and of committees thereof; he shall have custody of the corporate seal and,
when authorized by the Board of Directors, shall have authority to affix the
same to any instrument and, when so affixed, it shall be attested by his
signature or by the signature of the Treasurer or an Assistant Secretary or an
Assistant Treasurer. He shall keep and account for all books, documents,
papers and records of the Corporation, except those for which some other
officer or agent is properly accountable. He shall generally perform all the
duties appertaining to the office of the secretary of a corporation. In the
absence of the Secretary, such person as shall be designated by the President
shall perform his duties.
SECTION 4.10. Assistant Secretaries. Each Assistant Secretary
shall perform such duties and have such powers as may from time to time be
assigned to him by the Board of Directors. In the absence or disability of the
Secretary, his duties shall be performed and his powers may be exercised by the
Assistant Secretary or the Assistant Secretaries in the order determined by the
Board of Directors or, failing such designation, in the order of their last
election to that office.
SECTION 4.11. Assistant Treasurers. Each Assistant Treasurer shall
perform such duties and have such powers as may from time to time be assigned
by the Chief Financial Officer or Treasurer. In the absence of disability of
the Treasurer, the Treasurer's duties shall be performed and those powers may
be exercised by the
13
<PAGE> 17
Assistant Treasurer or the Assistant Treasurers in the order determined by the
Chief Financial Officer or the Board of Directors or, failing such designation,
in the order of their last election to that office.
SECTION 4.12. Compensation. The Board of Directors shall have the
power to fix the compensation of all officers of the Corporation.
ARTICLE V
Miscellaneous
SECTION 5.01. Certificates of Stock. The shares of stock of the
Corporation shall be represented by certificates in such form as shall be
determined by the Board of Directors and shall be signed by the Chairman of the
Board or the President or a Vice President and the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and shall be sealed with
the seal of the Corporation or a facsimile thereof. The signatures of the
officers upon a certificate may be facsimiles if the certificate is
countersigned by a Transfer Agent or registered by a Registrar other that the
Corporation or its employee. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
Whenever the corporation shall be authorized to issue more than one
class of stock or more than one series of any class of stock and whenever the
Corporation shall issue any shares of its stock as partly paid stock, the
certificate representing shares of any such class or series or of any such
partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law of the State of Delaware. Any restrictions on the
transfer or registration of transfer of any shares of stock of any class or
series shall be noted conspicuously on the certificate representing such
shares.
SECTION 5.02. Transfer Agents and Registrars. The Board of Directors may in
14
<PAGE> 18
its discretion, appoint one or more banks or trust companies in such city or
cities as the Board of Directors may deem advisable, from time to time, to act
as Transfer Agents and Registrars of the shares of stock of the Corporation;
and upon such appointments being made, no certificate representing shares shall
be valid until countersigned by one of such Transfer Agents and registered by
one of such Registrars.
SECTION 5.03. Lost Certificates. In case any certificate
representing shares shall be lost, stolen or destroyed, the Board of Directors,
or any officer or officers authorized by the Board of Directors, may authorize
the issue of a substitute certificate in place of the certificate so lost,
stolen or destroyed, and, if the Corporation shall have a Transfer Agent and
Registrar, may cause or authorize such substitute certificate to be
countersigned by the appropriate Transfer Agent and registered by the
appropriate Registrar. In each such case, the applicant for a substitute
certificate shall furnish to the Corporation and to such of its Transfer Agents
and Registrars as may require the same, evidence to their satisfaction, in
their discretion, of the loss, theft or destruction of such certificate and of
the ownership thereof, and also such security or indemnity as may by them be
required.
SECTION 5.04. Transfer of Shares. Transfers of shares shall be
made on the books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing, and upon
surrender and cancellation of a certificate or certificates of a like number of
shares, with duly executed assignment and power of transfer endorsed thereon or
attached thereto, and with such proof of the authenticity of the signatures as
the Corporation or its agents may reasonably require.
15
<PAGE> 19
SECTION 5.05. Record Date for Stockholders.
(a) Meetings. For the purpose of determining the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
the Board may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board and which record
date shall not be more than sixty (60) days nor less than ten (10) days before
the date of such meeting. If no record date is fixed by the Board, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
(b) Written Consent. For the purposes of determining the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and which record
date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board.
(c) Dividends and other Distributions. For the purposes of determining
the stockholders entitled to receive payment of any dividend or other
distribution, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action.
16
<PAGE> 20
SECTION 5.06. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of funds legally
available therefor, at any regular or special meeting declare dividends upon
the capital stock of the Corporation as and when they deem expedient. Before
declaring any dividend there may be set apart, out of any funds of the
Corporation available for dividends, such sum or sums as the directors from
time to time in their discretion deem proper for working capital or as a
reserve fund to meet contingencies or for equalizing dividends or for such
other purposes as the directors shall deem conducive to the interests of the
Corporation; and in its discretion the Board of Directors may decrease or
abolish any such reserve.
SECTION 5.07. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive rights of a person registered on its books
as the owner of shares to receive dividends and other distributions, and to
vote as such owner, and to hold liable for calls and assessments the person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the
part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
SECTION 5.08. Seal. The corporate seal shall be circular in form
and shall contain the name of the Corporation, the year of its organization and
the words "CORPORATE SEAL, DELAWARE." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 5.09. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
SECTION 5.10. Checks. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the corporation shall be signed by such officer or officers, agent or agents
of the Corporation and in such manner as shall be determined from time to time
by resolution of the Board of
17
<PAGE> 21
Directors.
SECTION 5.11. Execution of Proxies. The Chairman of the Board or
the President, or in the absence or disability of the Chairman of the Board and
the President, a Vice President, may authorize from time to time the signature
and issuance of proxies to vote upon shares of stock of other corporations
standing in the name of the Corporation or authorize the execution of consents
to action taken or to be taken by such other corporation. All such proxies and
consents shall be signed in the name of the Corporation by the Chairman of the
Board or the President or a Vice President and by the Secretary or an Assistant
Secretary.
SECTION 5.12. Notice and Waiver of Notice. Whenever any notice is
required to be given under the provisions of any law or of the Certificate of
Incorporation or of these By-Laws, personal notice in not meant unless
expressly so stated, and any notice so required shall be deemed to be
sufficient if given by depositing the same in the United States mail, postage
prepaid, addressed to the person entitled thereto at his address as it appears
on the records of the Corporation, and such notice shall be deemed to have been
given on the day of such mailing. Notice to directors may also be given by
telex, cable or telegram. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings, except as otherwise provided by
statute.
Whenever any notice whatever is required to be given under the
provisions of any law or of the Certificate of Incorporation or of these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors, or
members of a committee of directors need be specified in any written waiver of
notice unless so required by the Certificate of Incorporation. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the
18
<PAGE> 22
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
ARTICLE VI
Amendments
Subject to the provisions of the Certificate of Incorporation and the
provisions of the General Corporation Law of the State of Delaware, the power
to amend, alter or repeal these By-Laws and to adopt new By-Laws may be
exercised by the Board or by the stockholders.
19
