EXHIBIT 3.1
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CERTIFICATE OF INCORPORATION
OF
MOLEX INCORPORATED
(Restated to include all amendments through October 22, 1999)
FIRST: The name of the corporation is
Molex Incorporated
SECOND: The address of its registered office in the State
of Delaware is 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be
conducted or promoted is:
Merchandise, manufacture, buy, sell, deal in and with
plastic moldings, electrical and electronic assemblies,
electrical and electronic devices, machines, tools, parts for
tools or machines; and further to manufacture, buy, sell,
distribute, deal in and with goods, wares and merchandise or all
kinds, at wholesale or retail or on consignment.
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law
of Delaware.
To manufacture, purchase or otherwise acquire, invest in,
own, mortgage, pledge, sell, assign and transfer or otherwise
dispose of, trade, deal in and deal with goods, wares and
merchandise and personal property of every class and description.
To acquire, and pay for in cash, stock or bonds of this
corporation or otherwise, the good will, rights, assets and
property, and to undertake or assume the whole or any part of the
obligations or liabilities of any person, firm, association or
corporation.
To acquire, hold, use, sell, assign, lease, grant licenses
in respect of, mortgage or otherwise dispose of letters patent of
the United States or any foreign country, patent rights, licenses
and privileges, inventions, improvements and processes,
copyrights, trade-marks and trade names, relating to or useful in
connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to
receive, hold, own, guarantee, sell, assign, exchange, transfer,
mortgage, pledge or otherwise dispose of or deal in and with any
of the shares of the capital stock, or any voting trust
certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts, and
other securities, obligations, choses in action and evidences of
indebtedness or interest issued or created by any corporations,
joint stock companies, syndicates, associations, firms, trusts or
persons, public or private, or by the government of the United
States of America, or by any foreign government, or by any state,
territory, province, municipality or other political subdivision
or by any governmental agency, and as owner thereof to possess
and exercise all the rights, powers and privileges of ownership,
including the right to execute consents and vote thereon, and to
do any and all acts and things necessary or advisable for the
preservation, protection, improvement and enhancement in the
value thereof.
To borrow or raise moneys for any of the purposes of the
corporation and, from time to time without limit as to amount, to
draw, make, accept, endorse, execute and issue promissory notes,
drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance or
assignment in trust of the whole or any part of the property of
the corporation, whether at the time owned or thereafter
acquired, and to sell, pledge or otherwise dispose of such bonds
or other obligations of the corporation for its corporate
purposes.
To purchase, receive, take by grant, gift, devise, bequest
or otherwise, lease, or otherwise acquire, own, hold, improve,
employ, use and otherwise deal in and with real or personal
property, or any interest therein, wherever situated, and to
sell, convey, lease, exchange, transfer or otherwise dispose of,
or mortgage or pledge, all or any of the corporation's property
and assets, or any interest therein, wherever situated.
In general, to possess and exercise all the powers and
privileges granted by the General Corporation Law of Delaware or
by any other law of Delaware or by this certificate of
incorporation together with any powers incidental thereto, so far
as such powers and privileges are necessary or convenient to the
conduct, promotion or attainment of the business or purposes of
the corporation.
The business and purposes specified in the foregoing clauses
shall, except where otherwise expressed, be in nowise limited or
restricted by reference to, or inference from, the terms of any
other clause in this certificate of incorporation, but the
business and purposes specified in each of the foregoing clauses
of this article shall be regarded as independent business and
purposes.
FOURTH:
A. AUTHORIZED CAPITAL STOCK
(1) COMMON STOCK: The total number of shares of
common stock which the corporation shall have authority to issue
is four hundred million one hundred forty-six thousand seventy-
eight (400,146,078) shares, consisting of: (i) two hundred
million (200,000,000 shares of Common Stock, par value $.05 per
share (the "Common Stock"), subject to Paragraph E of this
Article FOURTH, (ii) two hundred million (200,000,000) shares of
Class A Common Stock, par value $.05 per share (the "Class A
Common Stock"), subject to Paragraph E of this Article FOURTH and
(iii) one hundred forty-six thousand seventy-eight (146,078)
shares of Class B Common Stock, par value $.05 per share (the
"Class B Common Stock").
(2) PREFERRED STOCK: The total number of shares of
preferred stock which the corporation shall have authority to
issue is twenty five million (25,000,000) shares, par value $.01
per share ("Preferred Stock"). Shares of Preferred Stock may be
dividend into and issued in series or classes as from time to
time determined by the board of directors of the corporation, the
shares of each series or class to have such voting rights,
designations, preferences, and relative, participating, optional
or special rights, and qualifications, limitations or
restrictions thereof as determined by the board of directors of
the corporation as hereinafter provided. Each series or class
shall be so designated as to distinguish the shares thereof from
the shares of all other series and classes.
Authority is hereby expressly granted to the board of
directors of the corporation, subject to the provisions of this
Article FOURTH and to the limitations prescribed by the General
Corporation Law of Delaware, to authorize the issuance of one or
more series or classes of Preferred Stock and with respect to
each such series or class to fix for such series or class the
voting powers, designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof. The
authority of the board of directors of the corporation with
respect to each series or class shall include, but not be limited
to, the determination or fixing of the following:
(i) the designation of such series or class;
(ii) the dividend rate of such series or class,
the conditions and dates upon which such
dividends shall be payable, the relation
which such dividends shall bear to the
dividends payable on any other class or
classes of stock or any other series of such
dividends shall be cumulative or non-
cumulative;
(iii) whether the shares of such series or
class shall be subject to redemption by the
corporation and, if made subject to such
redemption, the times, prices and other terms
and conditions of such redemption;
(iv) the terms and amount of any sinking fund
provided for the purchase or redemption of
the shares of such series or class;
(v) whether or not the shares of such series or
class shall be convertible into or
exchangeable for shares of any other class or
classes of any stock or any other series of
any class of stock of the corporation, and,
if provision is made for conversion or
exchange, the times, prices, rates,
adjustments, and other terms and conditions
of such conversion or exchange;
(vi) the extent, if any, to which the holders of
shares of such series or class shall be
entitled to vote with respect to the election
of directors or otherwise;
(vii) the restrictions, if any on the issue or
reissue of any additional Preferred Stock;
and
(viii) the rights of the holders of the shares
of such series or class upon the liquidation,
dissolution, or distribution of assets of the
corporation.
A statement of the designations of each class of common
stock and the powers, preferences and rights, qualifications,
limitations or restrictions thereof is as follows:
B. DIVIDENDS
After the corporation shall have complied with all the
requirements, if any, with respect to the setting aside of sums
as purchase, retirement of sinking funds, and subject to the
priorities and preferences of the Preferred Stock, then and not
otherwise the holders of the Common Stock, Class A Common Stock,
and Class B Common Stock shall be entitled to receive such
dividends if, as and when declared from time to time by the board
of directors. Dividends and stock splits shall be declared and
paid to holders of any class of common stock only if such
dividends and stock splits are declared and paid to holders of
all classes of common stock on an equal per share basis.
If at any time a distribution of Common Stock, Class B
Common Stock, Class A Common Stock or any other securities of the
company is to be made to holders of any class of common stock
(hereinafter sometimes referred to as "share distribution"), such
share distribution may be declared and paid only as follows:
(i) a share distribution consisting of shares of
Common Stock to holders of Common Stock and
Class B Common Stock on an equal per share
basis; provided, there shall also be a
simultaneous share distribution of Class A
Common Stock to holders of Class A Common
Stock consisting of shares of Class A Common
Stock on an equal per share basis;
(ii) a share distribution consisting of shares of
Class A Common Stock to holders of Class A
Common Stock on an equal per share basis;
provided, there shall also be a simultaneous
share distribution of Common Stock to holders
of Common Stock and Class B Common Stock on
an equal per share basis; and
(iii) a share distribution consisting of any
other class of securities of the corporation
to the holders of Common Stock, Class B
Common Stock and Class A Common Stock on an
equal per share basis.
Notwithstanding the preceding sentence, a share distribution
consisting of shares of Class A Common Stock may be declared and
paid to holders of Common Stock and Class B Common Stock on an
equal per share basis if such distribution represents the initial
issuance of shares of Class A Common Stock.
C. OTHER DISTRIBUTIONS
Notwithstanding anything to the contrary contained in
Article THIRTEENTH hereof, in the event of any merger or
consolidation, voluntary or involuntary liquidation, dissolution,
distribution of assets of winding-up of the corporation and
subject to the priorities and preferences of the Preferred Stock,
each share of Common Stock, Class A Common Stock, and Class B
Common Stock shall entitle the holder thereof to receive the
identical consideration with respect to whatever kind of assets
are available for distribution to holders of common stock or
stock into which shares of common stock of the corporation are
converted.
D. VOTING RIGHTS AND POWERS
(1) COMMON STOCK: Each holder of Common Stock shall
be entitled to one vote for each share of Common Stock held on
any matter required to be approved, by vote or otherwise, by the
stockholders of the corporation.
(2) CLASS A COMMON STOCK: No share of Class A Common
Stock shall entitle the holder thereof to any vote, consent or
approval with respect to any matter requiring approval, by vote
or otherwise, by the stockholders of the corporation except as
otherwise required by law.
(3) CLASS B COMMON STOCK: Each holder of Class B
Common Stock shall be entitled to one vote for each share of
Class B Common Stock held by him upon any matter coming before
any annual or special meeting of the stockholders of the
corporation; and, so long as more than fifty percent (50%) of the
authorized number of shares of Class B Common Stock are
outstanding, the holders of said shares of Class B Common Stock
shall vote as a separate class upon any corporate matter, except
the election of directors of the corporation, submitted to a vote
of the stockholders of the corporation at any annual or special
meeting thereof, and the approval of the holders of said shares
of Class B Common Stock, voting as a class, shall be a
prerequisite to the adoption of any matter submitted to a vote of
the stockholders.
E. CONVERSION
In the event that at any time the board of directors
determines, in good faith, that either of the following events
has occurred (i) the aggregate number of outstanding shares of
Common Stock and Class B Common Stock together is less than 10%
of the aggregate number of outstanding shares of Common Stock,
Class B Common Stock, and Class A Common Stock together, or (ii)
any "person", as such term is defined in Article THIRTEENTH,
Paragraph B(1) of this Certificate of Incorporation, other than
one or more members of the Krehbiel Family (as defined below),
becomes or is the Beneficial Owner, as such term is defined in
Article THIRTEENTH, Paragraph B(3) of this Certificate of
Incorporation, of a majority of the outstanding shares of Common
Stock; each authorized share of Class A Common Stock (whether or
not then issued) shall automatically be converted into one share
of Common Stock. Upon such conversion, the total number of
shares of Common Stock the corporation shall have authority to
issue shall be one hundred twenty million (120,000,000) shares
and the total number of shares of Class A Common Stock the
corporation shall have authority to issue shall be zero (0)
shares. Such conversion ratio as set forth in this paragraph,
shall, in all events, be equitably preserved in the event of any
recapitalization of the corporation by means of a stock dividend
on, or split or combination of outstanding Common Stock or Class
A Common Stock, or in the event of any merger, consolidation or
other reorganization of the corporation with another corporation.
In making such determination, the board of directors may
conclusively rely on any information or documentation available
to it, including filings made with the Securities and Exchange
Commission, any stock exchange, the National Association of
Securities Dealers, Inc. or any other governmental or regulatory
agencies, or any written instrument purporting to be authentic.
Upon the board of director's determination of the happening of
either of the events set forth in (i) or (ii) above, the shares
of Class A Common Stock shall be deemed without further action to
be immediately and automatically converted into shares of Common
Stock, and stock certificates formerly representing Class A
Common Stock shall thereupon and thereafter be deemed to
represent a like number of shares of Common Stock. The
determination by the board of directors that either (i) or (ii)
of this paragraph has occurred shall be conclusive and binding
and the conversion of each share of Class A Common Stock into one
share of Common Stock shall remain effective regardless of
whether either (i) or (ii) of this paragraph has occurred in
fact.
As used herein, the term "Krehbiel Family" shall mean:
(i) John H. Krehbiel, John H. Krehbiel, Jr. and
Frederick A. Krehbiel (collectively, the
"Krehbiels"), any of their respective
descendants, and any spouse, widow or widower
of any of the Krehbiels or any of their
respective descendants (collectively, the
"Family Members");
(ii) any trust established by one or more of the
Family Members;
(iii) any estate of a Family Member;
(iv) any foundation and any charitable
organization that qualifies as an exempt
organization under the Internal Revenue Code
of 1986, as amended, or any successor
statute, established by one or more of the
Family Members; and
(v) any corporation or partnership of which a
majority of the voting power and a majority
of the equity interest is held, directly or
indirectly, by or for the benefit of one or
more of the Family Members.
Shares of Class B Common Stock shall be convertible into
shares of the Common Stock of the corporation at the option of
the holder thereof at any time on a share for share basis. Such
conversion ratio shall in all events be equitably preserved in
the event of any recapitalization of the corporation by means of
a stock dividend on, or stock split or combination of,
outstanding Common Stock or Class B Common Stock, or in the event
of any merger, consolidation or other reorganization of the
corporation with another corporation. Upon the conversion of
Class B Common Stock into shares of Common Stock, said shares of
Class B Common Stock shall be retired and shall not be subject to
reissue.
FIFTH: The name and mailing address of each incorporator
is as follows:
Name Mailing Address
S. E. 100 West Tenth Street,
Widdoes Wilmington, Delaware
W. J. 100 West Tenth Street,
Reif Wilmington, Delaware
R. A. 100 West Tenth Street,
Finger Wilmington, Delaware
SIXTH: The name and mailing address of each person, who
is to serve as a director until the first annual meeting of the
stockholders or until a successor is elected and qualified, is as
follows:
Name Mailing Address
John H. 2222 Wellington, Lisle,
Krehbiel, Sr. Illinois 60532
John H. 2222 Wellington, Lisle,
Krehbiel, Jr. Illinois 60532
Frederick A. 2222 Wellington, Lisle,
Krehbiel Illinois 60532
Marie Manatte 2222 Wellington, Lisle,
Illinois 60532
SEVENTH: The corporation is to have perpetual existence.
EIGHTH: In furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly
authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed the mortgages and
liens upon the real and personal property of the corporation.
To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it
was created.
By a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the
directors of the corporation. The board 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. The by-laws may provide that in the absence or
disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified 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, or in the by-laws of
the corporation, 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 the resolution or by-laws
expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of
stock.
NINTH:
Section 1. Elimination of Certain Liability of
Directors.
To the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended,
a director of this corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or
is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a
director or officer, of the corporation or is or was serving at
the request of the corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any capacity while
serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such
amendment), against all expenses, liability and loss (including
attorney's fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and
administrators: provided, however, that, except as provided in
paragraph (b) hereof, the corporation shall indemnify any such
person seeking indemnification in connection with a proceeding
(or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the board of
directors of the corporation. The right to indemnification
conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition: provided, however, that if the Delaware General
Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made
only upon delivery to the corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this Section
or otherwise. The corporation may, by action of its board of
directors, provide indemnification to employees and agents of the
corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full by the
corporation within thirty days after a written claim has been
received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the
unpaid amount of the claim and if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required,
has been tendered to the corporation) that the claimant has not
met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the corporation to indemnify
the claimant for the amount claimed, but the burden of proving
such defense shall be on the corporation. Neither the failure of
the corporation (including its board of directors, independent
legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the
corporation (including its board of directors, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard or conduct, shall be a defense to the action
or create a presumption that the claimant has not met the
applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to
indemnification and the payment of expenses incurred in defending
a proceeding in advance of its final disposition conferred in
this Section shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether
or not the corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
TENTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them
and/or between this corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this
corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as
the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders
or class of stockholders, of this corporation, as the case may
be, and also on this corporation.
ELEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the by-laws may provide. The
books of the corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation.
Elections of directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
TWELFTH: 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 upon stockholders
herein are granted subject to this reservation.
THIRTEENTH:
A. BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
Notwithstanding Paragraph D of Article FOURTH, in addition
to any affirmative vote required by law or this Certificate of
Incorporation, the affirmative vote of holders of 75% of the
outstanding shares of Common Stock and Class B Common Stock that
are beneficially owned by stockholders other than the Interested
Stockholder who is a party to the Business Combination of the
corporation with an Interested Stockholder; provided however,
that such 75% voting requirement shall not be applicable if:
(i) the Business Combination is solely between
the corporation and any Subsidiary and does
not have the effect of increasing the actual
or potential voting power of such Interested
Stockholder; or
(ii) the Continuing Directors of the corporation,
by at least a majority vote of such
Continuing Directors, have expressly approved
such Business Combination either in advance
of or subsequent to such Interested
Stockholder's having become an Interested
Stockholder; or
(iii) all of the Minimum Price and Procedural
Conditions are satisfied.
B. CERTAIN DEFINITIONS
(1) The term "Interested Stockholder" shall mean (a)
any person other than the corporation or a Subsidiary which,
together with its Affiliates and Associates, is the Beneficial
Owner of an aggregate of 10% or more of the outstanding shares of
voting stock of the corporation, and (b) any Affiliate or
Associate of any such person; provided however, that the term
Interested Stockholder shall not include (i) a person whose
acquisition of such aggregate percentage of Common Stock and
Class B Common Stock was approved in advance by at least a
majority of the Continuing Directors or (ii) any trustee or
fiduciary when acting in such capacity with respect to employee
benefit plans of the corporation or a Subsidiary. An Interested
Stockholder shall be deemed the Beneficial Owner of all Common
Stock and Class B Common Stock of which any Affiliate or
Associate of such Interested Stockholder is the Beneficial Owner.
The term "person" shall mean any individual, corporation,
partnership or other entity, including any group comprised of any
person and any other person with whom such person of any
Affiliate or Associate thereof has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of Common Stock or Class
B Common Stock.
(2) The term "Business Combination" includes, when
entered into by the corporation or a Subsidiary with, or upon the
proposal by, an Interested Stockholder, the following
transactions or series of related transactions:
(i) the acquisition, merger or consolidation of
the corporation or any Subsidiary;
(ii) any sale, lease, exchange, transfer or other
disposition, including without limitation,
creation of any mortgage or security
interest, of any assets of the corporation or
any Subsidiary having a fair market value, as
determined by at least a majority of the
Continuing Directors, equal to 10% or more of
the total consolidated assets of the
corporation (including without limitation,
any voting securities of a Subsidiary) as of
the end of its most recent fiscal year prior
to the time the determination is being made;
(iii) the issuance or transfer of any
securities of the corporation or a Subsidiary
having a fair market value of 10% or more, as
determined by at least a majority of the
Continuing Directors, of the total
consolidated assets of the corporation as of
the end of its most recent fiscal year prior
to the time the determination is being made,
in exchange for cash or property (including
stock or other securities);
(iv) the approval of a plan or proposal for the
liquidation or dissolution of the corporation
or any Subsidiary;
(v) any reclassification of securities,
recapitalization, consolidation or any other
transaction that would have the direct or
indirect effect of increasing the voting
power (whether or not then exercisable) of an
Interested Stockholder in any class or series
of capital stock of the corporation or any
Subsidiary; and
(vi) any agreement, contract or other arrangement
providing for directly or indirectly any of
the transactions described in this definition
of Business Combination.
(3) The term "Beneficial Owner" shall mean any person
who beneficially owns any Common Stock or Class B Common Stock
within the meaning ascribed in Rule 13d-3 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in
effect on the date of approval of this Article by the
stockholders of the corporation, or who has the right to acquire
any such beneficial ownership (whether or not such right is
exercisable immediately) pursuant to any agreement, contract,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise.
(4) The term "Continuing Director" shall mean a
director of the corporation who is not an Interested Stockholder
entering into or proposing the Business Combination at issue and
(i) who was a member of the board of directors of the corporation
immediately prior to the time that such Interested Stockholder
became an Interested Stockholder or (ii) any successor to a
Continuing Director as described in (i) of this subparagraph (4)
who is recommended or elected to succeed a Continuing Director by
the affirmative vote of a majority of the Continuing Directors
then on the board of directors of the corporation, provided that,
in either such case, such Continuing Director has continued in
office after becoming a Continuing Director.
(5) An Interested Stockholder shall be deemed to have
acquired a share of Common Stock or Class B Common Stock at the
time when such Interested Stockholder became the Beneficial Owner
thereof. The price deemed to have been paid by an Interested
Stockholder for Common Stock or Class B Common Stock of which an
"Affiliate" or "Associate" is the Beneficial Owner shall be the
price, as determined by vote of at least a majority of the
Continuing Directors, which is the highest of (i) the price paid
upon the acquisition thereof by the relevant "Affiliate" or
"Associate" (if any, and whether or not such "Affiliate" or
"Associate" was an "Affiliate" or "Associate" at the time of such
acquisition), (ii) the highest market price of the Common Stock
or Class B Common Stock at the time when the Interested
Stockholder became the Beneficial Owner thereof and (iii) the
highest price previously paid by such Interested Stockholder or
an Affiliate or Associate thereof for such Common Stock or Class
B Common Stock.
(6) The term "Subsidiary" means any entity which the
corporation owns, directly or indirectly, (i) a majority of the
outstanding shares of equity securities of such entity, or (ii)
shares having a majority of the voting power represented by all
of the outstanding voting stock of such entity.
(7) "Minimum Price and Procedural Conditions" shall
mean all of the following conditions:
(i) the aggregate amount of cash and Fair Market
Value, as of the date of the consummation of
the Business Combination (the "Consummation
Date"), of consideration other than cash, to
be received per share of common stock in such
Business Combination by holders thereof,
shall be at least equal in value to the
higher of (a) the highest per share price,
including any brokerage commissions, transfer
taxes and soliciting dealers' fees (with
appropriate adjustments for
recapitalizations, reclassifications, stock
splits, reverse stock splits and stock
dividends) paid by the Interested Stockholder
in acquiring any shares of Common Stock or
Class B Common Stock within the three year
period immediately prior to the first public
announcement of the proposed Business
Combination or the per share price paid by
the Interested Stockholder in the transaction
in which it became an Interested Stockholder,
whichever is higher, or (b) the Fair Market
Value per share of Common Stock as determined
by the Continuing Directors on the date the
Business Combination is first publicly
announced;
(ii) the Business Combination shall be consummated
within the three year period after the later
of (a) the date the Interested Stockholder
became an Interested Stockholder or (b) the
first public announcement of the proposed
Business Combination;
(iii) after such Interested Stockholder has
become an Interested Stockholder and prior to
the Consummation Date, (a) there shall have
been (i) no reduction in the annual rate of
dividends paid on the common stock of the
corporation (except as necessary to reflect
any stock dividend or stock split or
distribution with respect to the common
stock,), except as approved by the
affirmative vote of a majority of the
Continuing Directors, and (ii) an increase in
such annual rate of dividends as necessary to
reflect any reclassification (including any
reverse stock split), recapitalization,
reorganization or any similar transaction
which has the effect of reducing the number
of outstanding shares of the common stock,
unless the failure so to increase such annual
rate is approved by the affirmative vote of a
majority of the Continuing Directors; (b)
such Interested Stockholder shall not have
become the Beneficial Owner of any additional
shares of voting stock of the corporation
except as part of the transaction which
results in such Interested Stockholder
becoming an Interested Stockholder; (c)
neither such Interested Stockholder nor any
Affiliate or Associate thereof shall have
received the benefit, directly or indirectly
(except proportionately as a stockholder of
the corporation), of any loans, advances,
guarantees, pledges or other financial
assistance or any tax credits or other tax
advantages provided by the corporation; and
(d) a proxy or information statement
describing the proposed Business Combination
and complying with the requirements of the
Securities Exchange Act of 1934 and the
General Rules and Regulations thereunder (or
any subsequent provisions replacing such Act,
rules or regulations) and disclosing the
terms and conditions of the proposed Business
Combination shall be mailed to the
stockholders of the corporation at least 30
days prior to the Consummation Date (whether
or not such proxy or information statement is
required to be mailed pursuant to such Act or
subsequent provisions thereof).
(8) The term "Fair Market Value" shall mean (i) in the
case of stock, the highest closing sale price during the 30-day
period immediately preceding the date in question of a share of
such stock on the Composite Tape for New York Stock Exchange-
Listed Stocks, or, if such stock is not reported on the Composite
Tape, on the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States
securities exchange registered under the Exchange Act on which
such stock is listed or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a
share of such stock during the 30-day period preceding the date
in question on the National Association of Securities Dealers,
Inc. Automated Quotations System or any similar interdealer
quotation system then in use, or, if no such quotation is
available, the fair market value on the date in question of a
share of such stock as determined by a majority of the Continuing
Directors in good faith; and (ii) in the case of property other
than cash or stock, the fair market value of such property on the
date in question as determined by a majority of the Continuing
Directors in good faith.
(9) The terms "Affiliate" and "Associate" shall have
the same meaning as in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934 s in effect
on the date of the approval of this Article by the stockholders
of the corporation.
The Continuing Directors shall have the power to make all
determinations with respect to the definitions as set forth in
this Section B of Article THIRTEENTH.
This Article THIRTEENTH shall be subject to the provisions
of Article FOURTH hereof.
C. AMENDMENTS, ALTERATION, OR REPEAL OF ARTICLE
THIRTEENTH
In addition to any requirements of law and any other
provisions of this Certificate of Incorporation or any resolution
or resolutions of the board of directors adopted pursuant to this
Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, this Certificate of
Incorporation or any such resolutions), the affirmative vote of
the holders of 75% of the then outstanding Common Stock held by
stockholders other than an Interested Stockholder and Class B
Common Stock shall be required to amend, alter or repeal, or
adopt any provision inconsistent with the requirements of, this
Article.
FOURTEENTH:
A. NUMBER OF DIRECTORS
The number of directors which shall constitute the whole
board of directors shall be determined in the manner provided in
the by-laws of the corporation.
B. CLASSIFIED BOARD OF DIRECTORS
The board of directors shall be divided into three classes
of directors (each, a "Class"), known as Class I, Class II and
Class III, with the term of office of one Class expiring each
year. Each Class shall consist, as nearly as possible, of
one-third of the total number of directors constituting the
entire board of directors. The initial division of the board of
directors shall be made by the decision of a majority of the
entire board of directors. The initial Class I directors elected
by the stockholders of the corporation shall hold office for a
term expiring at the 2000 annual meeting of stockholders and
until their successors shall be elected and qualified, subject to
prior death, retirement, resignation or removal; the initial
Class II directors elected by the stockholders of the corporation
shall hold office for a term expiring at the 2001 annual meeting
of stockholders and until their successors shall be elected and
qualified, subject to prior death, retirement, resignation or
removal; and the initial Class III directors elected by the
stockholders of the corporation shall hold office for a term
expiring at the 2002 annual meeting of stockholders and until
their successors shall be elected and qualified, subject to prior
death, retirement, resignation or removal. At each such annual
meeting of stockholders and at each annual meeting thereafter,
successors to the Class of directors whose term expires at that
meeting shall be elected for a term expiring at the third annual
meeting following their election and until their successors shall
be elected and qualified, subject to prior death, retirement,
resignation or removal.
C. EFFECT OF CHANGE IN THE NUMBER OF DIRECTORS
In the event of any increase or decrease in the authorized
number of directors, (1) each director then serving as such shall
nevertheless continue as director of the Class of which he or she
is a member until the expiration of such director's current term
or his or prior death, retirement, resignation or removal, and
(2) the newly created or eliminated directorships resulting from
such increase or decrease shall be apportioned by the board of
directors among the three Classes of directors so as to ensure
that no one Class has more than one director more than any other
Class, and each director so elected shall hold office for the
same term as the other members of the Class to which the director
is assigned. No decrease in the number of directors constituting
the whole board of directors shall shorten the term of an
incumbent director.
D. DIRECTORS ELECTED BY PREFERRED STOCKHOLDERS
Notwithstanding the foregoing provisions of this Article
Fourteenth, whenever the holders of any one or more classes or
series of Preferred Stock issued by the corporation shall have
the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features
of such directorships shall be governed by the terms of this
Certificate of Incorporation or the resolution or resolutions
adopted by the board of directors pursuant to Article Fourth
hereof applicable thereto, and such directors so elected shall
not be divided into classes pursuant to this Article Fourteenth
unless expressly provided by such terms.
WE, THE UNDERSIGNED, being each of the incorporators
hereinbefore named, for the purpose of forming a corporation
pursuant to the General Corporation Law of the State of Delaware,
do make this certificate, hereby declaring and certifying that
this is our act and deed and the facts herein stated are true,
and accordingly have hereunto set our hands this 8th day of
September, 1972.
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