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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
________________
Date of Report (Date of earliest event reported): January 24, 1994
MAXUS ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
1-8567-2 75-1891531
(Commission File Number) (I.R.S. Employer
Identification No.)
717 North Harwood Street, Dallas, Texas 75201-6594
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (214) 953-2000
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ITEM 5. OTHER INFORMATION
On January 24, 1994, the Registrant, pursuant to Section 245 of Delaware
Corporation Law, filed its restated certificate of incorporation with the
Secretary of State of Delaware integrating into a single instrument all of the
provisions of its certificate of incorporation then in effect and operative.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements
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Inapplicable.
(b) Exhibits
--------
3.(i) - Restated Certificate of Incorporation of the Registrant as
filed with the Secretary of State of Delaware on
January 24, 1994.
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MAXUS ENERGY CORPORATION
By: G. R. Brown
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G. R. Brown
Vice President and Controller
Dated: January 26, 1994
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EXHIBIT INDEX
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Exhibit
Number Exhibit
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3.(i) Restated Certificate of Incorporation of the Registrant as
filed with the Secretary of State of Delaware on January 24,
1994.
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EX - 3.(i)
RESTATED
CERTIFICATE OF INCORPORATION
OF
MAXUS ENERGY CORPORATION
(ORIGINALLY INCORPORATED UNDER THE NAME OF
NEW DIAMOND CORPORATION ON JULY 19, 1983)
_______________
FIRST. The name of the Corporation (the "Corporation") is Maxus Energy
Corporation.
SECOND. The registered office of the Corporation in the State of Delaware
is located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
THIRD. 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.
FOURTH. The Corporation is authorized to issue two classes of capital
stock, designated Common Stock and Preferred Stock. The amount of total
authorized capital stock of the Corporation is 400,000,000 shares, divided into
300,000,000 shares of Common Stock, $1.00 par value, and 100,000,000 shares of
Preferred Stock, $1.00 par value.
The Preferred Stock may be issued in one or more series. The Board of
Directors is hereby authorized to issue the shares of Preferred Stock in such
series and to fix from time to time before issuance the number of shares to be
included in any series and the designation, relative powers, preferences and
rights and qualifications, limitations or restrictions of all shares of such
series. The authority of the Board of Directors with respect to each series
shall include, without limiting the generality of the foregoing, the
determination of any or all of the following:
(a) the number of shares of any series and the designation to
distinguish the shares of such series from the shares of all other
series;
(b) the voting powers, if any, and whether such voting powers are full
or limited, in such series;
(c) the redemption provisions, if any, applicable to such series,
including the redemption price or prices to be paid;
(d) whether dividends, if any, shall be cumulative or noncumulative,
the dividend rate of such series, and the dates and preferences of
dividends on such series;
(e) the rights of such series upon the voluntary or involuntary
dissolution of, or upon any distribution of the assets of, the
Corporation;
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(f) the provisions, if any, pursuant to which the shares of such
series are convertible into, or exchangeable for, shares of any other
class or classes or of any other series of the same or any other class or
classes of stock, or any other security, of the Corporation or any other
corporation, and price or prices or the rates of exchange applicable
thereto;
(g) the right, if any, to subscribe for or to purchase any securities
of the Corporation or any other corporation;
(h) the provisions, if any, of a sinking fund applicable to such
series; and
(i) any other relative, participating, optional or other special
powers, preferences, rights, qualifications, limitations or restrictions
thereof;
all as shall be determined from time to time by the Board of Directors and shall
be stated in said resolution or resolutions providing for the issuance of such
Preferred Stock (a "Preferred Stock Designation").
$4.00 Cumulative Convertible Preferred Stock
The following is a statement of the powers, preferences, rights,
qualifications, limitations and restrictions of the Series, consisting of
5,915,017 shares, $1.00 par value, of the $4.00 Cumulative Convertible Preferred
Stock.
(A) Number of Shares. The number of shares which shall constitute this
Series shall be 5,915,017, which number may be increased or decreased (but not
below the number outstanding) from time to time by the Board of Directors of the
Corporation.
(B) Dividend Rate; Cumulative Date. The annual dividend rate payable on
this Series shall be $4.00 per share, cumulative to the extent not paid from
September 15, 1983, and in each case payable quarterly on March 15, June 15,
September 15 and December 15 in each year, commencing December 15, 1983.
(C) Redemption. The Corporation may, at the option of the Board of
Directors, redeem the whole or any part of the then-outstanding shares of this
Series, at any time or from time to time, upon notice duly given as hereinafter
specified, at the following prices per share if redeemed during the 12-month
period beginning December 15 of the year indicated:
<TABLE>
<S> <C>
1982............ $53.20
1983............ 52.80
1984............ 52.40
1985............ 52.00
1986............ 51.60
1987............ 51.20
1988............ 50.80
1989............ 50.40
</TABLE>
and thereafter at $50.00 per share, together in each case with a sum, for each
share so redeemed, computed at the rate of $4.00 per annum from and after the
last regular quarterly payment date applicable to $4.00 Series C Cumulative
Convertible Preferred Shares of Natomas Company,
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irrespective of whether such date precedes or follows the date of issuance of
this Series, on which the quarterly dividend was paid in full (the "Accrual
Date"), to and including such date fixed for redemption, less the aggregate of
the dividends theretofore and on such redemption date paid on such Series, but
computed without interest; provided that unless provision has been made for
payment in full of dividends on all shares of outstanding Preferred Stock of the
Corporation for all past dividend periods and the current period, no sum shall
be set aside for the redemption of any shares of this Series nor shall any
shares of this Series be purchased or otherwise acquired by the Corporation.
(D) Notice of Redemption. Notice of redemption of shares of this Series,
as described in division (C) hereof, shall be given as follows:
(1) Notice of every such redemption of shares of this Series shall be
given by publication at least once a week in each of two successive weeks
in a newspaper printed in the English language and customarily published on
each business day and of general circulation in the city in which the
Corporation maintains its principal executive offices and in the Borough of
Manhattan, The City of New York, commencing at least 20 but not more than
60 days prior to the date fixed for such redemption. Notice of every such
redemption shall also be mailed at least 20 but not more than 60 days prior
to the date fixed for such redemption to the holders of record of the
shares so to be redeemed at their respective addresses as the same shall
appear on the books of the Corporation, but no failure to mail such notice
nor any defect therein or in the mailing thereof shall affect the validity
of the proceedings for the redemption of any shares so to be redeemed.
(2) In case of redemption of a part only of this Series at the time
outstanding, the redemption may be either pro rata or by lot. The Board of
Directors shall prescribe the manner in which the drawings by lot or the
pro rata redemption shall be conducted and, subject to the provisions
herein and in the Certificate of Incorporation contained, the terms and
conditions upon which the shares of this Series shall be redeemed from time
to time.
(3) If such notice of redemption shall have been duly given by
publication or if the Corporation shall have given to the bank or trust
company designated by the Corporation pursuant to this subdivision (3)
irrevocable authorization promptly to give or to complete such notice of
publication, and if on or before the redemption date specified therein the
funds necessary for such redemption shall have been deposited by the
Corporation, in trust for the pro rata benefit of the holders of the shares
so called for redemption, with a bank or trust company in good standing,
designated in such notice, organized under the laws of the United States of
America or of the State of New York, doing business in the Borough of
Manhattan, The City of New York, having a capital, surplus and undivided
profits aggregating at least $5,000,000 according to its last published
statement of condition, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, from and after the time of such deposit, all shares so called
for redemption shall no longer be deemed to be outstanding and all rights
with respect to such shares shall forthwith cease and terminate, except
only the right of the holders thereof to receive from such deposit the
funds so deposited, without interest, and the right to exercise on or
before the close of business on the date fixed for redemption, privileges
of exchange or conversion, if any, not
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theretofore expiring. Any interest accrued on such funds shall be paid to
the Corporation from time to time.
(4) Any funds so set aside or deposited by the Corporation which shall
not be required for such redemption because of the exercise of any right
of conversion or exchange subsequent to the date of such deposit shall be
released or repaid to the Corporation. Any funds so set aside or
deposited, as the case may be, and unclaimed at the end of six years from
such redemption date shall be released or repaid to the Corporation, after
which the holders of the shares so called for redemption shall look only to
the Corporation for payment thereof.
(5) In connection with any redemption of shares of this Series, the
Corporation may arrange for the purchase and conversion of any shares of
this Series by an agreement with one or more investment banking firms or
other purchasers to purchase such shares by paying to or for the account of
the holders thereof on or before the close of business on the date fixed
for such redemption an amount not less than the redemption price (plus
accrued and unpaid dividends) payable by the Corporation on redemption of
such shares. Any shares of this Series tendered by the holders thereof for
redemption or not duly surrendered for conversion or deemed converted by
the holders thereof prior to the close of business on the date fixed for
redemption shall be deemed acquired by such purchasers from such holders
immediately prior to the close of business on the date fixed for such
redemption and surrendered by such purchasers for conversion pursuant to
such agreement, subject to payment of the amount indicated above. Such
amount shall be deposited, in trust for the pro rata benefit of the holders
of shares of this Series entitled thereto, with a bank or trust company
described in subdivision (3) of this division, and such deposit shall in
all respects be treated as though made by the Corporation pursuant thereto.
(6) If the Market Value of the Conversion Unit (as hereinafter defined)
on the date fixed for the redemption of shares of this Series is at least
equal to 120% of the amount payable in respect of each share of this Series
upon such redemption in accordance with division (C) hereof, then shares of
this Series not duly surrendered for conversion by the holders thereof
prior to the close of business on the date fixed for redemption shall
nevertheless be deemed to be converted by such holders into shares of
Common Stock pursuant to division (H) hereof immediately prior to such
time; provided, however, that no certificates for Common Stock issuable
upon such conversion shall be issued to any holder of shares of this Series
so converted or dividends paid or other distributions made on the Common
Stock so issued to such holder unless and until such holder shall surrender
to the Corporation the certificates for the shares of this Series so
converted. Upon such surrender, there shall be paid to the holder of such
certificates the aggregate amount of dividends and other distributions that
but for the provisions hereof would have been paid by the Corporation with
respect to the Common Stock issued on such conversion, but without interest
thereon. Until certificates representing shares of this Series have been
so surrendered such certificates shall be deemed for all corporate
purposes, other than the payment of dividends or distributions, to evidence
ownership of the Common Stock issued upon conversion of such shares. For
purposes of this subdivision (6), the "Conversion Unit" at any time shall
be deemed to be the number of shares of Common Stock into which each share
of this Series then may be converted, as provided in division (H)
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hereof, and the "Market Value of the Conversion Unit" on any date fixed for
the redemption of shares of this Series shall be deemed to be the amount
determined by multiplying (i) the Conversion Unit on such date by (ii) the
closing price per share of Common Stock on such date, determined as
provided in subdivision (3) of division (H) hereof.
(E) Liquidation. The amount which shall be paid to the holders of shares
of this Series in the event of any voluntary or involuntary total liquidation,
dissolution or winding up of the Corporation shall be $50.00 per share on each
outstanding share of this Series, plus in respect of each share of this Series a
sum computed at the rate of $4.00 per annum from and after the Accrual Date, to
and including the date fixed for such payment, less the aggregate of dividends
theretofore paid thereon, but computed without interest.
(F) Ratable Treatment. In the event that the amounts payable in
accordance with division (E) hereof are not paid in full, each share of this
Series shall, together with outstanding shares of all other series of Preferred
Stock of the Corporation, share ratably, without priority of one series over the
other, in the payment of dividends, including accumulations, if any, in the
proportion that the amount of dividends, including accumulations, if any, then
payable on each share bears to the aggregate of such amounts then payable on all
Preferred Stock of the Corporation and in any distribution of assets other than
by way of dividends in the proportion that the sum payable on each share bears
to the aggregate of the amounts so payable on all shares of Preferred Stock of
the Corporation.
(G) Limitation on Dividends. So long as any of the shares of this Series
shall remain outstanding, no dividend whatever shall be paid or declared, and no
distribution made, on any junior shares, other than a dividend payable solely in
junior shares, nor shall any junior shares be acquired for a consideration by
the Corporation or by any company a majority of the voting shares of which is
owned by the Corporation, unless all dividends on the shares of this Series
accrued for all past quarterly dividend periods shall have been paid and the
full dividends thereon for the then current quarterly dividend period shall have
been paid or declared and duly provided for.
(H) Conversion Rights. The terms upon which the holders of shares of this
Series may convert the same into shares of any other class or classes are as
follows:
(1) Subject to the provisions for adjustment hereinafter set forth and
to the provisions of the division (D) hereof, each of the shares of this
Series shall be convertible, at the option of the holder, upon surrender to
any Transfer Agent for such shares or to the Corporation if no such
Transfer Agent exists, of the certificate for the share to be converted,
into 1.2280 fully paid and non-assessable shares of Common Stock of the
Corporation. The right to convert shares of this Series called for
redemption shall terminate at the close of business on the date fixed for
redemption, unless the Corporation shall default in the payment of the
redemption price determined as provided in division (C) hereof; upon
conversion of any shares of this Series, no allowance or adjustment shall
be made for dividends on either class of shares, but nothing in this
subdivision shall relieve the Corporation from its obligation to pay any
dividends which shall have been declared and shall be payable to holders of
shares of this Series of record as of a date prior to such conversion even
though the payment date for such dividend is subsequent to the date of
conversion.
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(2) The number of shares of Common Stock into which each of the shares
of this Series is convertible shall be subject to adjustment from time to
time as follows:
(i) In case the Corporation shall (a) pay a dividend on its Common
Stock in shares of the Corporation, (b) subdivide its outstanding
Common Stock, (c) combine its outstanding Common Stock into a smaller
number of shares, or (d) issue by reclassification of its Common Stock
(whether pursuant to a merger or consolidation or otherwise) any shares
of the Corporation, then each holder of a share of this Series shall be
entitled to receive upon the conversion of such share, the number of
shares of the Corporation which he would have owned or have been
entitled to receive after the happening of any of the events described
above had such share been converted immediately prior to the happening
of such event. Such adjustment shall be made whenever any of the events
listed above shall occur. An adjustment made pursuant to this
subdivision shall become effective retroactively with respect to
conversions made subsequent to the record date in the case of a stock
dividend, and shall become effective on the effective date in the case
of a subdivision, combination or reclassification.
(ii) In case the Corporation shall issue rights or warrants to the
holders of its Common Stock as such entitling them to subscribe for or
purchase Common Stock, at a price per share less than the current market
price per share of Common Stock (as defined in subdivision (3) below) on
the record date for determination of stockholders entitled to receive
such rights or warrants, then in each such case the number of shares of
Common Stock into which each share of this Series shall thereafter be
convertible shall be determined by multiplying the number of shares of
Common Stock into which such share of this Series was theretofore
convertible by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator shall
be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered would
purchase at such current market price. For the purposes of this
subdivision, the issuance of rights or warrants to subscribe for or
purchase shares or securities convertible into shares of Common Stock
shall be deemed to be the issuance of rights or warrants to purchase the
shares of Common Stock into which such shares or securities are
convertible at an aggregate offering price equal to the aggregate
offering price of such shares or securities plus the minimum aggregate
amount (if any) payable upon conversion of such shares or securities
into shares of Common Stock. Such adjustment shall be made whenever any
such rights or warrants are issued, and shall become effective
retroactively with respect to conversions made subsequent to the record
date for the determination of stockholders entitled to receive such
rights or warrants.
(iii) In case the Corporation shall distribute to holders of its
Common Stock (whether pursuant to a merger or consolidation or
otherwise) evidences of its indebtedness or assets (excluding cash
distributions after August 31, 1983 not exceeding the aggregate net
earnings of the Corporation and its subsidiaries on a consolidated basis
after such date
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less dividends paid after such date on shares other than shares of
Common Stock, all determined in accordance with generally accepted
accounting principles) or rights to subscribe (excluding those referred
to in paragraph (ii) above) then in each such case the number of shares
of Common Stock into which each share of this Series shall thereafter be
convertible shall be determined by multiplying the number of shares of
Common Stock into which such share of this Series was therefore
convertible by a fraction of which the numerator shall be the current
market price per share of the Common Stock (as defined in subdivision
(3) below) on the record date for determination of stockholders entitled
to receive such distribution, and of which the denominator shall be such
current market price per share of the Common Stock less the fair value
(as determined by the Board of Directors of the Corporation, whose
determination shall be conclusive, and described in a statement filed
with each Transfer Agent for the shares of this Series) of the portion
of the assets or evidences of indebtedness so distributed or of such
subscription rights applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is made, and
shall become effective retroactively with respect to conversions made
subsequent to the record date for the determination of stockholders
entitled to receive such distribution.
(3) For the purposes of any computation under subdivision (2) above, the
current market price per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices for the 30 consecutive
full business days commencing 45 full business days before the day in
question. The closing price for each day shall be the last sales price
regular way or, in case no sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case (i) as officially
quoted by the New York Stock Exchange Composite Tape or (ii) if, in the
reasonable judgment of the Board of Directors of the Corporation, the New
York Stock Exchange, Inc. is no longer the principal United States market
for the Common Stock, then as quoted on the principal United States stock
exchange or market for the Common Stock as determined by the Board of
Directors of the Corporation, or (iii) if, in the reasonable judgment of
the Board of Directors of the Corporation there exists no principal United
States stock exchange or market for the Common Stock, then as reasonably
determined by the Board of Directors of the Corporation.
(4) No adjustment in the conversion rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this
subdivision (4)) would require an increase or decrease of at least 1% in
the number of shares of Common Stock into which each share of this Series
is then convertible; provided, however, that any adjustments which by
reason of this subdivision (4) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under division (H) shall be made to the nearest one-hundred
thousandth of a share.
(5) Whenever any adjustment is required in the shares into which shares
of this Series is convertible, the Corporation shall forthwith (i) file
with each Transfer Agent for this Series a statement describing in
reasonable detail the adjustment and the method of calculation used, and
(ii) cause a copy of such statement to be mailed to the holders of record
of the shares of this Series as of the effective date of such adjustment.
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(6) No fractional share or scrip representing fractional shares shall be
issued upon the conversion of shares of this Series. If any such
conversion would otherwise require the issuance of a fractional share, an
amount equal to such fraction multiplied by the closing price (determined
as provided in subdivision (3) above) of the shares of Common Stock on the
day of conversion shall be paid to the holder in cash by the Corporation.
(7) The certificate of any independent firm of public accountants of
recognized standing selected by the Board of Directors shall be evidence
of the correctness of any computation made under this division (H).
(8) All shares of this Series redeemed, purchased or otherwise acquired
by the Corporation or surrendered to it for conversion into Common Stock
as provided above shall be cancelled and thereupon restored to the status
of authorized but unissued Preferred Stock undesignated as to series.
(9) The Corporation shall be entitled to make such increases in the
conversion rate, in addition to those required by this division (H), as
shall be determined by the Board of Directors, as evidenced by a resolution
thereof, which are advisable in order to avoid taxation so far as
practicable of any dividend of shares or rights to shares, or any event
treated as such a dividend to the recipients for federal income tax
purposes.
(10) The shares of this Series shall be deemed to have been converted
and the person converting the same to have become the holder of record of
shares of Common Stock, for the purpose of receiving dividends and for all
other purposes whatever, as of the date when a certificate or certificates
for such shares of this Series are surrendered to the Corporation as
aforesaid. The Corporation shall not be required to make any such
conversion, and no surrender of the shares of this Series shall be
effective for such purpose, while the books for the transfer of either the
shares of Common Stock or of this Series are closed for any purpose, but
the surrender of such shares of this Series for conversion during any
period while such books are closed shall become effective for all purposes
of conversion immediately upon the reopening of such books, as if the
conversion had been made on the date such shares of this Series were
surrendered.
(11) The Corporation shall at all times reserve and keep available out
of its authorized Common Stock the full number of shares into which all
shares of this Series from time to time outstanding are convertible. If at
any time the number of authorized and unissued shares of Common Stock shall
not be sufficient to effect the conversion of all outstanding shares of
this Series at the conversion rate then in effect, the Corporation shall
take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized and unissued Common Stock to such
number as shall be sufficient for such purpose.
(l) Voting Rights. Except as may otherwise be provided by law or in this
division (l), the holders of the shares of this Series shall be entitled to vote
at a rate of one vote per share as a class with the holders of all other shares
of capital stock of the Corporation then entitled to vote, and not as a separate
class, on a non-cumulative basis for election of directors and upon all other
matters
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which may be submitted to a vote of holders of the Corporation's Common Stock at
any annual or special meeting thereof.
In addition to the voting rights in respect of the election of directors
set forth in the preceding paragraph, the shares of this Series shall have the
voting rights set forth below:
(1) So long as any of the shares of this Series are outstanding, the
consent of the holders of at least a majority of the then-outstanding
shares of this Series, given in person or by proxy at any special or annual
meeting called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) Any increase in the authorized amount of Preferred Stock or the
authorization, or any increase in the authorized amount, of any class of
shares of the Corporation ranking on a parity with the Preferred Stock.
(ii) The sale, lease or conveyance (other than by mortgage) of all
or substantially all of the property or business of the Corporation or
the consolidation or merger of the Corporation into any other
corporation, unless the corporation resulting from such merger or
consolidation shall have thereafter no class of shares, either
authorized or outstanding, ranking prior to or on a parity with shares
corresponding to the shares of Preferred Stock, except the same number
of shares with no greater rights and preferences than the shares of
Preferred Stock authorized immediately preceding such consolidation or
merger and unless each holder of shares of Preferred Stock immediately
preceding such consolidation or merger shall receive the same number of
shares, with substantially the same rights and preferences, of the
resulting corporation; provided, however, that the resulting corporation
may have authorized and outstanding such additional shares having
preferences or priorities over or being on a parity with the shares of
Preferred Stock as the holders of Preferred Stock of the Corporation may
have previously authorized pursuant to the Certificate of Incorporation;
and provided, further, that this requirement of consent by the holders
of shares of Preferred Stock shall not be deemed to apply to or operate
to prevent either the purchase by the Corporation of the assets or
shares, in whole or in part, of any other corporation, or the sale by
the Corporation or any subsidiary of all or part of the capital shares
or assets of other corporations, including a subsidiary, or the sale of
a division or divisions of the Corporation or of any subsidiary, or any
other sale of property or assets which constitutes less than
substantially all of the property or assets of the Corporation.
(2) So long as any of the shares of this Series are outstanding, the
consent of the holders of at least 66 2/3% of the then-outstanding shares
of this Series given in person or by proxy, at any special or annual
meeting called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) The authorization, or any increase in the authorized amount, of
any class of shares of the Corporation ranking prior to the shares of
Preferred Stock.
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(ii) The amendment, alteration or repeal of any of the provisions of
the Certificate of Incorporation, or the amendment, alteration, repeal
or adoption of any resolution contained in a certificate of designation
filed pursuant to Section 151 of the General Corporation Law of the
State of Delaware in the office of the Secretary of State of the State
of Delaware, which would affect adversely any right, preference,
privilege or voting power of the shares of this Series or shares of any
other series of Preferred Stock or the holders thereof.
(3) Without limiting the rights, if any, of holders of any other series
of Preferred Stock, in case the Corporation shall be in arrears in the
payment of six quarterly dividends, whether or not successive, on the
outstanding shares of this Series or any other outstanding series of
Preferred Stock, the holders of shares of this Series voting separately as
a class and in addition to their other voting rights shall have the
exclusive right to elect two additional directors beyond the number to be
elected by all stockholders at the next annual meeting of stockholders
called for the election of directors, and at every subsequent such meeting
at which the terms of office of the directors so elected by the holders of
shares of this Series expire, provided such arrearage exists on the date of
such meeting or subsequent meetings, as the case may be. The right of the
holders of shares of this Series voting separately as a class to elect two
members of the Board of Directors of the Corporation as aforesaid shall
continue until such time as all dividends accumulated on all shares of
Preferred Stock shall have been paid in full and provision has been made
for the payment in full of the dividends for the current quarter, at which
time the special right of the holders of shares of this Series so to vote
separately as a class for the election of Directors shall terminate,
subject to revesting at such time as the Corporation shall be in arrears in
the payment of six quarterly dividends, whether or not successive, on the
outstanding shares of this Series or any other outstanding series of
Preferred Stock. If the annual meeting of stockholders of the Corporation
is not, for any reason, held on the date fixed in the By-Laws at a time
when the holders of shares of this Series, voting separately and as a
class, shall be entitled to elect directors, or if vacancies shall exist in
both of the two offices of directors elected by the holders of shares of
this Series, the Chairman of the Board of the Corporation shall, upon the
written request of the holders of record of at least 10% of the shares of
this Series then outstanding addressed to the Secretary of the Corporation,
call a special meeting in lieu of the annual meeting of stockholders, or,
in the event of such vacancies, a special meeting of the holders of shares
of this Series, for the purpose of electing directors. Any such meeting
shall be held at the earliest practicable date at the place for the holding
of the annual meeting of stockholders or as otherwise determined pursuant
to the By-Laws. If such meeting shall not be called by the Chairman of the
Board of the Corporation within 20 days after personal service of said
written request upon the Secretary of the Corporation, or within 20 days
after mailing the same within the United States by certified mail,
addressed to the Secretary of the Corporation at its principal executive
offices, then the holder of record of at least 10% of the outstanding
shares of this Series may designate in writing one of their number to call
such meeting at the expense of the Corporation, and such meeting may be
called by the person so designated upon the notice required for the annual
meeting of stockholders of the Corporation and shall be held at the place
for holding the annual meetings of stockholders or as otherwise determined
pursuant to the By-Laws. Any holder
-10-
<PAGE>
of shares of this Series so designated shall have access to the lists of
stockholders to be called pursuant to the provisions hereof.
At any meeting held for the purpose of electing directors at which the
holders of shares of this Series shall have the right to elect directors
as aforesaid, the presence in person or by proxy of the holders of at least
33 1/3% of the outstanding shares of this Series shall be required to
constitute a quorum of such shares of this Series.
In the event any meeting of the holders of shares of this Series shall
be held for the purpose of electing directors pursuant to this subdivision
(3), nothing contained herein shall preclude the Corporation from
simultaneously calling and holding a meeting of any other class or series
of capital stock of the Corporation which may have voting rights to elect
directors.
Any vacancy occurring in the office of director elected by the holders
of shares of this Series may be filled by the remaining director elected by
the holders of the shares of such class, unless and until such vacancy
shall be filled by the holders of the shares of such class. Any director
to be elected by the holders of shares of this Series shall agree, prior to
his election to office, to resign upon any termination of the right of the
holders of shares of this Series to vote as a class for directors as herein
provided, and upon any such termination the directors then in office
elected by the holders of shares of this Series shall forthwith resign.
(J) Certain Taxes. The Corporation shall pay any and all taxes which may
be imposed upon it with respect to the issuance and delivery of shares of Common
Stock upon the conversion of the shares of this Series as herein provided. The
Corporation shall not be required in any event to pay any transfer or other
taxes by reason of the issuance of such shares of Common Stock in names other
than those in which the shares of this Series surrendered for conversion may
stand, and no such conversion or issuance of shares of Common Stock shall be
made unless and until the person requesting such issuance has paid to the
Corporation the amount of any such tax or has established to the satisfaction of
the Corporation and its transfer agent, if any, that such tax has been paid.
(K) No Sinking Fund. No sinking fund shall be provided for the purchase
or redemption of the shares of this Series.
(L) No Preemptive Rights. The holders of shares of this Series are not
entitled to any preemptive or other rights to subscribe for or to purchase any
shares or securities of any class which may at any time be issued, sold or
offered for sale by the Corporation.
(M) Rank. All shares of Preferred Stock, including this Series, shall be
of equal rank with each other regardless of series, and shall be identical with
each other except as provided in the Certificate of Incorporation or in a
certificate of designation filed pursuant to Section 151 of the General
Corporation Law of the State of Delaware with the Secretary of State of the
State of Delaware.
-11-
<PAGE>
Each holder of Common Stock of the Corporation entitled to vote shall have
one vote for each share thereof held except in the case of any election of
Directors as provided in Section 4 of Article Eighth.
Except as may be provided in this Certificate of Incorporation or by the
Board of Directors in a Preferred Stock Designation, the Common Stock shall have
the exclusive right to vote for the election of Directors and for all other
purposes, and holders of Preferred Stock shall not be entitled to receive notice
of any meeting of stockholders at which they are not entitled to vote or
consent.
The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes, and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable laws.
$2.50 Cumulative Preferred Stock
The following is a statement of the powers, preferences, rights,
qualifications, limitations and restrictions of the Series, consisting of
5,000,000 shares, $1.00 par value, of the $2.50 Cumulative Preferred Stock.
SECTION 1. Designation and Amount. The shares of this Series shall be
designated as the "$2.50 Cumulative Preferred Stock" and the number of shares
constituting this Series shall be 5,000,000, which number, subject to the
provisions of the Certificate of Incorporation, may be increased or decreased by
the Board of Directors without a vote of stockholders; provided, however, that
such number may not be decreased below the number of the then currently
outstanding shares of this Series.
SECTION 2. Dividends. The holders of shares of this Series, in preference
to the holders of shares of the Common Stock of the Corporation and of any other
capital stock of the Corporation ranking junior to this Series as to payment of
dividends, shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, cumulative cash
dividends at the annual rate of $2.50 per share, and no more, in equal quarterly
payments on the fifteenth day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing March 15, 1994. Dividends shall begin to accrue and be
cumulative from the date of original issue of this Series. The amount of
dividends so payable shall be determined on the basis of twelve 30-day months
and a 360-day year. Accumulated but unpaid dividends shall not bear interest.
Dividends paid on the shares of this Series in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of this Series entitled to receive payment of a dividend
declared thereon, which record date shall be no more than sixty days prior to
the date fixed for the payment thereof.
SECTION 3. Redemption. The shares of this Series shall not be redeemable
prior to December 1, 1998. On or after that date, the Corporation shall have
the right, at its sole option and
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<PAGE>
election, to redeem the whole or any part of the then-outstanding shares of this
Series, at any time or from time to time, upon notice duly given as hereinafter
specified, at a price per share of $25.00, plus dividends accumulated but unpaid
to the redemption date; provided that unless provision has been made for payment
in full of dividends on all shares of outstanding Preferred Stock of the
Corporation for all past dividend periods and the current period, no sum shall
be set aside for the redemption of any shares of this Series nor shall any
shares of this Series be purchased or otherwise acquired by the Corporation.
Notice of every such redemption of shares of this Series shall be given by
publication at least once a week in each of two successive weeks in a newspaper
printed in the English language and customarily published on each business day
and of general circulation in the city in which the Corporation maintains its
principal executive offices and in the Borough of Manhattan, The City of New
York, commencing at least 30 but not more than 60 days prior to the date fixed
for such redemption. Notice of every such redemption shall also be mailed at
least 30 but not more than 60 days prior to the date fixed for such redemption
to the holders of record of the shares so to be redeemed at their respective
addresses as the same shall appear on the books of the Corporation, but no
failure to mail such notice nor any defect therein or in the mailing thereof
shall affect the validity of the proceedings for the redemption of any shares so
to be redeemed. In case of redemption of a part only of this Series at the time
outstanding, the redemption may be either pro rata or by lot. The Board of
Directors shall prescribe the manner in which the drawings by lot or the pro
rata redemption shall be conducted and, subject to the provisions herein and in
the Certificate of Incorporation contained, the terms and conditions upon which
the shares of this Series shall be redeemed from time to time.
If such notice of redemption shall have been duly given by publication or
if the Corporation shall have given to the bank or trust company designated by
the Corporation as hereinafter specified irrevocable authorization promptly to
give or to complete such notice of publication, and if on or before the
redemption date specified therein the funds necessary for such redemption shall
have been deposited by the Corporation, in trust for the pro rata benefit of the
holders of the shares so called for redemption, with a bank or trust company in
good standing, designated in such notice, organized under the laws of the United
States of America or of the State of New York, doing business in the Borough of
Manhattan, The City of New York, having a capital, surplus and undivided profits
aggregating at least $5,000,000 according to its last published statement of
condition, then, notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, from and after the
time of such deposit, all shares so called for redemption shall no longer be
deemed to be outstanding and all rights with respect to such shares shall
forthwith cease and terminate, except only the right of the holders thereof to
receive from such deposit the funds so deposited, without interest. Any
interest accrued on such funds shall be paid to the Corporation from time to
time. Any funds so set aside or deposited, as the case may be, and unclaimed at
the end of two years from such redemption date shall be released or repaid to
the Corporation, after which the holders of the shares so called for redemption
shall look only to the Corporation for payment thereof.
SECTION 4. Liquidation. The amount which shall be paid to the holders of
shares of this Series in the event of any voluntary or involuntary total
liquidation, dissolution or winding up of
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<PAGE>
the Corporation shall be $25.00 per share on each outstanding share of this
Series, plus an amount equal to all dividends accumulated but unpaid to the date
of such payment.
SECTION 5. Ratable Treatment. In the event that the amounts payable in
accordance with Section 4 hereof are not paid in full, each share of this Series
shall, together with outstanding shares of all other series of Preferred Stock
of the Corporation, share ratably, without priority of one series over the
other, in the payment of dividends, including accumulations, if any, in the
proportion that the amount of dividends, including accumulations, if any, then
payable on each share bears to the aggregate of such amounts then payable on all
Preferred Stock of the Corporation and in any distribution of assets other than
by way of dividends in the proportion that the sum payable on each share bears
to the aggregate of the amounts so payable on all shares of Preferred Stock of
the Corporation.
SECTION 6. Limitation on Dividends. So long as any of the shares of this
Series shall remain outstanding, no dividend whatever shall be paid or declared,
and no distribution made, on any junior shares, other than a dividend payable
solely in junior shares, nor shall any junior shares be acquired for a
consideration by the Corporation or by any company a majority of the voting
shares of which is owned by the Corporation, unless all dividends on the shares
of this Series accrued for all past quarterly dividend periods shall have been
paid and the full dividends thereon for the then current quarterly dividend
period shall have been paid or declared and duly provided for.
SECTION 7. Voting Rights. The holders of the shares of this Series shall
have no voting rights whatsoever, except for any voting rights to which they may
be entitled under the laws of the State of Delaware, and except as follows:
(a) So long as any of the shares of this Series are outstanding, the
consent of the holders of at least a majority of the then-outstanding
shares of this Series, given in person or by proxy at any special or annual
meeting called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) Any increase in the authorized amount of Preferred Stock or the
authorization, or any increase in the authorized amount, of any
class of shares of the Corporation ranking on a parity with the
Preferred Stock.
(ii) The sale, lease or conveyance (other than by mortgage) of all
or substantially all of the property or business of the Corporation
or the consolidation or merger of the Corporation into any other
corporation, unless the corporation resulting from such merger or
consolidation shall have thereafter no class of shares, either
authorized or outstanding, ranking prior to or on a parity with shares
corresponding to the shares of Preferred Stock, except the same number
of shares with no greater rights and preferences than the shares of
Preferred Stock authorized immediately preceding such consolidation or
merger and unless each holder of shares of Preferred Stock immediately
preceding such consolidation or merger shall receive the same number
of shares, with substantially the same rights and preferences, of the
resulting corporation; provided, however, that the resulting
corporation may have authorized and outstanding
-14-
<PAGE>
such additional shares having preferences or priorities over or being
on a parity with the shares of Preferred Stock as the holders of
Preferred Stock of the Corporation may have previously authorized
pursuant to the Certificate of Incorporation; and provided, further,
that this requirement of consent by the holders of shares of Preferred
Stock shall not be deemed to apply to or operate to prevent either the
purchase by the Corporation of the assets or shares, in whole or in
part, of any other corporation, or the sale by the Corporation or any
subsidiary of all or part of the capital shares or assets of other
corporations, including a subsidiary, or the sale of a division or
divisions of the Corporation or of any subsidiary, or any other sale
of property or assets which constitutes less than substantially all of
the property or assets of the Corporation.
(b) So long as any of the shares of this Series are outstanding, the
consent of the holders of at least 66 2/3% of the then-outstanding shares
of this Series given in person or by proxy, at any special or annual
meeting called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) The authorization, or any increase in the authorized amount, of
any class of shares of the Corporation ranking prior to the shares of
Preferred Stock.
(ii) The amendment, alteration or repeal of any of the provisions of
the Certificate of Incorporation, or the amendment, alteration, repeal
or adoption of any resolution contained in a certificate of
designation filed pursuant to Section 151 of the General Corporation
Law of the State of Delaware in the office of the Secretary of State
of the State of Delaware, which would affect adversely any right,
preference, privilege or voting power of the shares of this Series or
shares of any other series of Preferred Stock or the holders thereof.
(c) Without limiting the rights, if any, of holders of any other series
of Preferred Stock, in case the Corporation shall be in arrears in the
payment of six quarterly dividends, whether or not successive, on the
outstanding shares of this Series or any other outstanding series of
Preferred Stock, the holders of shares of this Series voting separately as
a class and in addition to their other voting rights shall have the
exclusive right to elect two additional directors beyond the number to be
elected by all stockholders at the next annual meeting of stockholders
called for the election of directors, and at every subsequent such meeting
at which the terms of office of the directors so elected by the holders of
shares of this Series expire, provided such arrearage exists on the date of
such meeting or subsequent meetings, as the case may be. The right of the
holders of shares of this Series voting separately as a class to elect two
members of the Board of Directors of the Corporation as aforesaid shall
continue until such time as all dividends accumulated on all shares of
Preferred Stock shall have been paid in full and provision has been made
for the payment in full of the dividends for the current quarter, at which
time the special right of the holders of shares of this Series so to vote
separately as a class for the election of Directors shall terminate,
subject to revesting at such time as the Corporation shall be in arrears in
the payment of six quarterly dividends, whether or not successive, on the
outstanding shares of this Series or any other outstanding series of
Preferred Stock. If the annual meeting of stockholders of the Corporation
is not, for any
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<PAGE>
reason, held on the date fixed in the By-Laws at a time when the holders of
shares of this Series, voting separately and as a class, shall be entitled
to elect directors, or if vacancies shall exist in both of the two offices
of directors elected by the holders of shares of this Series, the Chairman
of the Board of the Corporation shall, upon the written request of the
holders of record of at least 10% of the shares of this Series then
outstanding addressed to the Secretary of the Corporation, call a special
meeting in lieu of the annual meeting of stockholders, or, in the event of
such vacancies, a special meeting of the holders of shares of this Series,
for the purpose of electing directors. Any such meeting shall be held at
the earliest practicable date at the place for the holding of the annual
meeting of stockholders or as otherwise determined pursuant to the By-Laws.
If such meeting shall not be called by the Chairman of the Board of the
Corporation within 20 days after personal service of said written request
upon the Secretary of the Corporation, or within 20 days after mailing the
same within the United States by certified mail, addressed to the Secretary
of the Corporation at its principal executive offices, then the holder of
record of at least 10% of the outstanding shares of this Series may
designate in writing one of their number to call such meeting at the
expense of the Corporation, and such meeting may be called by the person so
designated upon the notice required for the annual meeting of stockholders
of the Corporation and shall be held at the place for holding the annual
meetings of stockholders or as otherwise determined pursuant to the By-
Laws. Any holder of shares of this Series so designated shall have access
to the lists of stockholders to be called pursuant to the provisions
hereof.
At any meeting held for the purpose of electing directors at which the
holders of shares of this Series shall have the right to elect directors
as aforesaid, the presence in person or by proxy of the holders of at least
33 1/3% of the outstanding shares of this Series shall be required to
constitute a quorum of such shares of this Series.
In the event any meeting of the holders of shares of this Series shall be
held for the purpose of electing directors pursuant to this subdivision
(c), nothing contained herein shall preclude the Corporation from
simultaneously calling and holding a meeting of any other class or series
of capital stock of the Corporation which may have voting rights to elect
directors.
Any vacancy occurring in the office of director elected by the holders of
shares of this Series may be filled by the remaining director elected by
the holders of the shares of such class, unless and until such vacancy
shall be filled by the holders of the shares of such class. Any director
to be elected by the holders of shares of this Series shall agree, prior to
his election to office, to resign upon any termination of the right of the
holders of shares of this Series to vote as a class for directors as herein
provided, and upon any such termination the directors then in office
elected by the holders of shares of this Series shall forthwith resign.
SECTION 8. No Sinking Fund. No sinking fund shall be provided for the
purchase or redemption of the shares of this Series.
SECTION 9. No Preemptive Rights. The holders of shares of this Series are
not entitled to any preemptive or other rights to subscribe for or to purchase
any shares or securities of any class which may at any time be issued, sold or
offered for sale by the Corporation.
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<PAGE>
SECTION 10. Rank. All shares of Preferred Stock, including this Series,
shall be of equal rank with each other regardless of series, and shall be
identical with each other except as provided in the Certificate of Incorporation
or in a certificate of designation filed pursuant to Section 151 of the General
Corporation Law of the State of Delaware with the Secretary of State of the
State of Delaware.
$9.75 Cumulative Convertible Preferred Stock
The following is a statement of the powers, preferences, rights,
qualifications, limitations and restrictions of the Series, consisting of
2,500,000 shares, $1.00 par value, of the $9.75 Cumulative Convertible Preferred
Stock.
SECTION 1. Designation and Amount. The shares of such series shall be
designated as the "$9.75 Cumulative Convertible Preferred Stock" (the "$9.75
Preferred Stock") and the number of shares constituting such series shall be
2,500,000 which number may be decreased (but not increased) by the Board of
Directors without a vote of stockholders; provided, however, that such number
may not be decreased below the number of then currently outstanding shares of
$9.75 Preferred Stock.
SECTION 2. Dividends and Distributions.
(a) The holders of shares of $9.75 Preferred Stock, in preference to the
holders of shares of the Common Stock, $1.00 par value (the "Common
Stock"), of the Corporation and of any other capital stock of the
Corporation ranking junior to the $9.75 Preferred Stock as to payment of
dividends, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose,
cumulative cash dividends at the annual rate of $9.75 per share, and no
more (except as otherwise provided in paragraph (b) of this Section 2), in
equal quarterly payments on the fifteenth day of March, June, September and
December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date which is at least 10 days after the date of original
issue of the $9.75 Preferred Stock.
(b) If the ratio (expressed as a percentage) of Consolidated Funded Debt
(as defined in Section 10 hereof) to Gross Tangible Worth (as defined in
Section 10 hereof) of the Corporation and its Subsidiaries (as defined in
Section 10 hereof) or of any successor Person to the Corporation and its
Subsidiaries or of any Person of which the Corporation is a Subsidiary and
the Subsidiaries of such Person (the "Reporting Entity"), computed as if
all such Persons and the Corporation were consolidated pursuant to
generally accepted accounting principles, exceeds 60% as of the last day of
the calendar quarter for two or more consecutive calendar quarters, then
retroactively effective for the Quarterly Dividend Payment Date in the
first calendar quarter in which such ratio exceeds 60%, the holders of
shares of $9.75 Preferred Stock, in preference to the holders of shares of
Common Stock and of any other capital stock of the Corporation ranking
junior to the $9.75 Preferred Stock as to payment of dividends, shall be
entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, cumulative cash dividends at
the annual rate of $10.75 per share (rather than at the annual rate of
$9.75 per share as provided in paragraph
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<PAGE>
(a) of this Section 2), and no more, in equal quarterly payments on each
Quarterly Dividend Payment Date until such ratio is 60% or less as of the
last day of the calendar quarter for four consecutive calendar quarters.
After such period, the holders of shares of $9.75 Preferred Stock will be
entitled to receive dividends at the annual rate of $9.75 per share as
provided in paragraph (a) of this Section 2 until such ratio again exceeds
60% as of the last day of the calendar quarter for two or more consecutive
calendar quarters.
(c) Dividends payable pursuant to paragraph (a) or (b) of this Section 2
shall begin to accrue and be cumulative from the date of original issue of
the $9.75 Preferred Stock. The amount of dividends so payable shall be
determined on the basis of twelve 30-day months and a 360-day year. Accrued
but unpaid dividends shall not bear interest. Dividends paid on the shares
of $9.75 Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of $9.75 Preferred Stock entitled to
receive payment of a dividend declared thereon, which record date shall be
no more than sixty days prior to the date fixed for the payment thereof.
SECTION 3. Voting Rights. The holders of shares of $9.75 Preferred Stock
shall have the following voting rights:
(a) So long as more than 750,000 shares of $9.75 Preferred Stock are
issued and outstanding, the holders of the outstanding shares of $9.75
Preferred Stock, voting separately as a single series, in person or by
proxy, shall be entitled to elect one or more directors of the Corporation,
in the number and manner specified in this paragraph (a) and, subject to
the provisions of the Restated Certificate of Incorporation of the
Corporation and of any other Certificate of Designations, Preferences and
Rights relating to any other class or series of capital stock of the
Corporation having a preference over the Common Stock as to dividends or
upon liquidation, the holders of shares of Common Stock and of any such
other class or series of capital stock of the Corporation, voting together
as a class, shall be entitled to elect the remaining directors of the
Corporation; provided, however, that until such time as any waiting period
with respect to any acquisition of shares of $9.75 Preferred Stock required
to expire under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, including any extensions thereof, shall have expired or been
terminated, the holders of shares of $9.75 Preferred Stock acquired in such
acquisition shall not have the right to vote for the election of directors.
So long as the number of shares of $9.75 Preferred Stock specified in this
sentence are issued and outstanding, the number of directors of the
Corporation which the holders of shares of $9.75 Preferred Stock, voting
separately as a single series, shall be entitled to elect shall be the
following:
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<PAGE>
<TABLE>
<CAPTION>
Number of
Number of Shares Directors
---------------- ---------
<S> <C>
2,250,000 or more............................ 3
1,500,000 or more but less than 2,250,000.... 2
750,001 or more but less than 1,500,000...... 1
</TABLE>
(b) So long as more than 300,000 shares of $9.75 Preferred Stock are
issued and outstanding, the affirmative vote of the holders of at least a
majority of the outstanding shares of $9.75 Preferred Stock, voting
separately as a single series, in person or by proxy, at a special or
annual meeting of stockholders called for the purpose, shall be necessary
to authorize any transaction defined as a "Self-Dealing Transaction" in
Section 3 of Article NINTH of the Restated Certificate of Incorporation of
the Corporation, as in effect on February 1, 1987.
(c) The affirmative vote of the holders of at least 66 2/3% of the
outstanding shares of $9.75 Preferred Stock, voting separately as a
single series, in person or by proxy, at a special or annual meeting of
stockholders called for the purpose, shall be necessary to (i) authorize,
or to increase the authorized number of shares of, or to issue, any class
or series of the Corporation's capital stock ranking prior (either as to
dividends or upon liquidation, dissolution or winding up) to the $9.75
Preferred Stock or (ii) amend, repeal or change any of the provisions of
the Restated Certificate of Incorporation of the Corporation or the
provisions of the Certificate of Designations, Preferences and Rights of
$9.75 Cumulative Convertible Preferred Stock which embodies this
resolution, in any manner which would alter or change the powers,
preferences or special rights of the shares of $9.75 Preferred Stock so as
to affect them adversely.
(d) The foregoing rights of holders of shares of $9.75 Preferred Stock
to take any actions as provided in this Section 3 may be exercised at any
annual meeting of stockholders or at a special meeting of stockholders held
for such purpose. At each meeting of stockholders at which the holders of
shares of $9.75 Preferred Stock shall have the right, voting separately as
a single series, to elect directors of the Corporation as provided in this
Section 3 or to take any other action, the presence in person or by proxy
of the holders of record of one-third of the total number of shares of
$9.75 Preferred Stock then outstanding and entitled to vote on the matter
shall be necessary and sufficient to constitute a quorum. At any such
meeting or at any adjournment thereof,
(i) the absence of a quorum of the holders of shares of $9.75
Preferred Stock shall not prevent the election of directors other than
those to be elected by the holders of shares of $9.75 Preferred Stock
and the absence of a quorum of the holders of shares of any other class
or series of capital stock shall not prevent the election of directors
to be elected by the holders of shares of $9.75 Preferred Stock or the
taking of any other action as provided in this Section 3; and
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<PAGE>
(ii) in the absence of a quorum of the holders of shares of $9.75
Preferred Stock, a majority of the holders of such shares present in
person or by proxy shall have the power to adjourn the meeting as to the
actions to be taken by the holders of shares of $9.75 Preferred Stock
from time to time and place to place without notice other than
announcement at the meeting until a quorum shall be present.
For the taking of any action as provided in this Section 3 by the
holders of shares of $9.75 Preferred Stock, each such holder shall have
one vote for each share of such stock standing in his name on the transfer
books of the Corporation as of any record date fixed for such purpose or,
if no such date be fixed, at the close of business on the Business Day (as
defined in Section 10 hereof) next preceding day on which notice is given,
or if notice is waived, at the close of business on the Business Day next
preceding the day on which the meeting is held.
Each director elected by the holders of shares of $9.75 Preferred Stock
as provided in paragraph (a) of this Section 3 shall, unless his term shall
expire earlier, hold office until the annual meeting of stockholders next
succeeding his election or until his successor, if any, is elected and
qualified.
In case any vacancy shall occur among the directors elected by the
holders of shares of $9.75 Preferred Stock as provided in paragraph (a) of
this Section 3, such vacancy may be filled for the unexpired portion of the
term by vote of the remaining directors or director theretofore elected by
such holders, or such directors' or director's successors in office. If
any such vacancy is not so filled within 20 days after the creation
thereof, the Chairman of the Board of the Corporation shall call a special
meeting of the holders of shares of $9.75 Preferred Stock to be held as
promptly as practicable and such vacancy or vacancies shall be filled at
such special meeting.
Any director elected by the holders of shares of $9.75 Preferred Stock
may be removed from office by vote of the holders of at least a majority
of the outstanding shares of $9.75 Preferred Stock. A special meeting of
the holders of shares of $9.75 Preferred Stock may be called by a majority
vote of the Board of Directors for the purpose of removing a director in
accordance with the provisions of this paragraph (d). The Chairman of the
Board of the Corporation shall, in any event, within 10 days after delivery
to the Corporation at its principal office of a request to call such a
special meeting signed by the holders of at least 20% of the outstanding
shares of $9.75 Preferred Stock, call a special meeting for such purpose to
be held as promptly as practicable after the delivery of such request.
If the Corporation shall not set a date for an annual meeting to elect
directors within thirteen months of the previous annual meeting, then
within 10 days after delivery to the Corporation at its principal office of
a request to call such an annual meeting signed by the holders of at least
20% of the outstanding shares of $9.75 Preferred Stock, the Chairman of the
Board of the Corporation shall call an annual meeting to be held as
promptly as practicable after the delivery of such request.
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(e) Except as provided herein or in the Restated Certificate of
Incorporation of the Corporation, or as required by law, the holders of
shares of $9.75 Preferred Stock shall have no voting rights and their
consent shall not be required for the taking of any corporate action.
SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends payable on shares of $9.75 Preferred
Stock as provided in Section 2 hereof are in arrears, thereafter and
until all accrued and unpaid dividends, whether or not declared, on the
outstanding shares of $9.75 Preferred Stock shall have been paid in full or
declared and set apart for payment, or whenever the Corporation shall not
have redeemed shares of $9.75 Preferred Stock at a time required by
paragraph (b) of Section 5 hereof, thereafter and until all mandatory
redemption obligations which have come due shall have been satisfied or all
necessary funds have been set apart for payment, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of capital stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the $9.75 Preferred Stock, other
than dividends or distributions payable in capital stock ranking junior (as
to dividends and upon liquidation, dissolution or winding up) to the $9.75
Preferred Stock; or (ii) declare or pay dividends, or make any other
distributions, on any shares of capital stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the
$9.75 Preferred Stock, other than dividends or distributions payable in
capital stock ranking junior (as to dividends and upon liquidation,
dissolution or winding up) to the $9.75 Preferred Stock, except dividends
paid ratably on the $9.75 Preferred Stock and all capital stock ranking on
a parity with the $9.75 Preferred Stock and on which dividends are payable
or in arrears, in proportion to the total amounts to which the holders of
all such shares are then entitled.
(b) Whenever quarterly dividends payable on shares of $9.75 Preferred
Stock as provided in Section 2 hereof are in arrears, thereafter and
until all accrued and unpaid dividends, whether or not declared, on the
outstanding shares of $9.75 Preferred Stock shall have been paid in full or
declared and set apart for payment, or whenever the Corporation shall not
have redeemed shares of $9.75 Preferred Stock at a time required by
paragraph (b) of Section 5 hereof, thereafter and until all mandatory
redemption obligations which have come due shall have been satisfied or all
necessary funds have been set apart for payment, the Corporation shall not:
(i) redeem or purchase or otherwise acquire for consideration any shares of
capital stock ranking (either as to dividends or upon liquidation,
dissolution or winding up) junior to, or on a parity with, the $9.75
Preferred Stock; or (ii) redeem or purchase or otherwise acquire for
consideration any shares of $9.75 Preferred Stock; provided, that the
Corporation may elect to redeem all outstanding shares of $9.75 Preferred
Stock pursuant to paragraph (a) of Section 5 hereof, or may redeem shares
of $9.75 Preferred Stock pro rata (or in full, if fewer than 750,000 shares
of $9.75 Preferred Stock are then outstanding) pursuant to paragraph (a) or
paragraph (b) of Section 5 hereof, or may otherwise redeem shares of $9.75
Preferred Stock pursuant to paragraph (c) of Section 5 hereof or clause
(iv) (B) of paragraph (b) of Section 8 hereof.
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(c) The Corporation shall not permit any Subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of capital
stock of the Corporation unless the Corporation could, pursuant to
paragraph (b) of this Section 4, purchase such shares at such time and in
such manner.
SECTION 5. Redemption.
(a) Except as otherwise provided in paragraph (c) of this Section 5 and
clause (iv) (B) of paragraph (b) of Section 8, the Corporation shall not
have any right to redeem shares of $9.75 Preferred Stock prior to August 1,
1995. On and after such date, subject to the restrictions contained in
Section 4 hereof, the Corporation shall have the right, at its sole option
and election, to redeem shares of $9.75 Preferred Stock, in whole or in
part, at any time and from time to time at the redemption prices per share
set forth below plus an amount per share equal to all unpaid dividends
thereon, including accrued dividends, whether or not declared, to the date
of redemption.
If redeemed during the period beginning August 1, 1995 and ending January
31, 1996, at a price of $101.0836, and thereafter, at a price of $100.00
(b) On each February 1 commencing on February 1, 1994 (so long as any
shares of $9.75 Preferred Stock remain outstanding), the Corporation shall
redeem 750,000 shares of $9.75 Preferred Stock (or, if fewer than 750,000
shares of $9.75 Preferred Stock are then outstanding, the number of shares
then outstanding), by paying therefor in cash $100.00 per share plus an
amount per share equal to all unpaid dividends thereon, including accrued
dividends, whether or not declared, to the date of redemption. The
Corporation may apply to its mandatory redemption obligations, on a pro
rata basis with respect to mandatory redemption payments to be made, any
shares of $9.75 Preferred Stock purchased, redeemed or otherwise acquired
(other than upon conversion) by it which have not been previously credited
against its mandatory redemption obligations.
(c) The Corporation shall have the right to redeem shares of $9.75
Preferred Stock in accordance with paragraph 7D of the Preferred Stock
Purchase Agreement dated February 1, 1987 between the Corporation and The
Prudential Insurance Company of America, as it may be amended from time to
time, and including any additional parties which become subject to said
paragraph 7D, in accordance with the procedures specified therein.
(d) If less than all shares of $9.75 Preferred Stock at the time
outstanding are to be redeemed, the shares to be redeemed shall be selected
pro rata, except in the event of a redemption made pursuant to paragraph
(c) of this Section 5.
(e) Except for a redemption made pursuant to paragraph (c) of this
Section 5 or clause (iv) (B) of paragraph (b) of Section 8, notice of any
redemption of shares of $9.75 Preferred Stock shall be mailed at least
thirty, but not more than sixty, days prior to the date fixed for
redemption to each holder of shares of $9.75 Preferred Stock to be
redeemed, at such holder's address as it appears on the transfer books of
the Corporation. In order to facilitate the
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redemption of shares of $9.75 Preferred Stock, the Board of Directors may
fix a record date for the determination of shares of $9.75 Preferred Stock
to be redeemed, or may cause the transfer books of the Corporation for the
$9.75 Preferred Stock to be closed, not more than sixty days or less than
thirty days prior to the date fixed for such redemption.
(f) On the date of any redemption being made pursuant to paragraph (a)
or (b) of this Section 5 which is specified in the notice given pursuant
to paragraph (e), the Corporation shall, and at any time after such notice
shall have been mailed and before such date of redemption the Corporation
may, deposit for the benefit of the holders of shares of $9.75 Preferred
Stock called for redemption the funds necessary for such redemption with a
bank or trust company in the Borough of Manhattan, the City of New York,
having a capital and surplus of at least $500,000,000. Any monies so
deposited by the Corporation and unclaimed at the end of two years from the
date designated for such redemption 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 and any holder of shares of $9.75
Preferred Stock so called for redemption shall look only to the Corporation
for the payment of the redemption price. In the event that monies are
deposited pursuant to this paragraph (f) in respect of shares of $9.75
Preferred Stock that are converted in accordance with the provisions of
Section 8 hereof, such monies shall, upon such conversion, revert to the
general funds of the Corporation and, upon demand, such bank or trust
company shall pay over to the Corporation such monies and shall be relieved
of all responsibility to the holders of such converted shares in respect
thereof. Any interest accrued on funds deposited pursuant to this
paragraph (f) shall be paid from time to time to the Corporation for its
own account.
(g) Upon the deposit of funds pursuant to paragraph (f) in respect of
shares of $9.75 Preferred Stock called for redemption pursuant to paragraph
(a) or (b) of this Section 5, notwithstanding that any certificates for
such shares shall not have been surrendered for cancellation, the shares
represented thereby shall no longer be deemed outstanding, the rights to
receive dividends thereon shall cease to accrue from and after the date of
redemption designated in the notice of redemption and all rights of the
holders of shares of $9.75 Preferred Stock called for redemption shall
cease and terminate, excepting only the right to receive the redemption
price therefor and the right to convert such shares into shares of Common
Stock until the close of business on the second Business Day (as defined in
Section 10 hereof) preceding the date of redemption, in accordance with
Section 8 hereof.
SECTION 6. Reacquired Shares. Any shares of $9.75 Preferred Stock
converted, redeemed, purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation, and upon the filing of
an appropriate certificate with the Secretary of State of the State of Delaware,
become authorized but unissued shares of Preferred Stock, $1.00 par value, of
the Corporation and may be reissued as part of another series of Preferred
Stock, $1.00 par value, of the Corporation subject to the conditions or
restrictions on issuance set forth herein.
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SECTION 7. Liquidation, Dissolution or Winding Up.
(a) Except as provided in paragraph (b) of this Section 7, upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (i) to the holders of shares of capital stock of the
Corporation ranking junior (upon liquidation, dissolution or winding up) to
the $9.75 Preferred Stock unless, prior thereto, the holders of shares of
$9.75 Preferred Stock shall, subject to Section 8 hereof, have received (A)
the liquidation value per share set forth below, plus an amount per share
equal to all unpaid dividends thereon, including accrued dividends, whether
or not declared, to the date of such payments or (B) if such payment occurs
prior to February 1, 1990 the greater of the amount determined pursuant to
clause (i) (A) and the Trading Value (as defined in Section 10 hereof) per
share of $9.75 Preferred Stock on the date of such payment; or (ii) to the
holders of shares of capital stock ranking on a parity (upon liquidation,
dissolution or winding up) with the $9.75 Preferred Stock, except
distributions made ratably on the $9.75 Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. For
purposes of clause (i) (A) above the liquidation value per share shall be
during each 12-month period beginning February 1:
<TABLE>
<S> <C>
1987.......................... $109.7500
1988.......................... $108.6667
1989.......................... $107.5834
1990.......................... $106.5001
1991.......................... $105.4168
1992.......................... $104.3335
1993.......................... $103.2502
1994.......................... $102.1669
1995.......................... $101.0836
1996 and thereafter........... $100.00.
</TABLE>
(b) If the Corporation shall commence a voluntary case under the
Federal bankruptcy laws or any other applicable Federal or State
bankruptcy, insolvency or similar law, or consent to the entry of an order
for relief in an involuntary case under any such law or to the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
other similar official) of the Corporation or of any substantial part of
its property, or make an assignment for the benefit of its creditors, or
admit in writing its inability to pay its debts generally as they become
due, or if a decree or order for relief in respect of the Corporation shall
be entered by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws or any other applicable Federal or
State bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Corporation or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any such decree
or order shall be unstayed and in effect for a period of 90 consecutive
days and on account of any such event the Corporation shall liquidate,
dissolve or wind up, no distribution shall be made (i) to the holders of
shares of capital stock of the Corporation ranking junior (upon
liquidation, dissolution or winding up) to the $9.75 Preferred Stock
unless, prior thereto, the holders of shares of $9.75 Preferred
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Stock shall have received $100.00 per share, plus an amount per share equal
to all unpaid dividends thereon, including accrued dividends, whether or
not declared, to the date of such payment or (ii) to the holders of shares
of capital stock ranking on a parity (upon liquidation, dissolution or
winding up) with the $9.75 Preferred Stock, except distributions made
ratably on the $9.75 Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up.
(c) Neither the consolidation, merger or other business combination of
the Corporation with or into any other Person or Persons nor the sale of
all or substantially all of the assets of the Corporation shall be deemed
to be a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 7.
SECTION 8. Conversion. Each share of $9.75 Preferred Stock may be
converted at any time on or after February 1, 1990, at the option of the holder
thereof, into shares of Common Stock, on the terms and conditions set forth in
this Section 8.
(a) Subject to the provisions for adjustment hereinafter set forth, each
share of $9.75 Preferred Stock shall be convertible in the manner
hereinafter set forth into 5.84 fully paid and nonassessable shares of
Common Stock.
(b) The number of shares of Common Stock into which each share of $9.75
Preferred Stock is convertible shall be subject to adjustment from time
to time as follows:
(i) In case the Corporation shall at any time or from time to time
declare a dividend, or make a distribution, on the outstanding shares of
Common Stock in shares of Common Stock or subdivide or reclassify the
outstanding shares of Common Stock into a greater number of shares or
combine or reclassify the outstanding shares of Common Stock into a
smaller number of shares of Common Stock, then, and in each such case,
the number of shares of Common Stock into which each share of $9.75
Preferred Stock is convertible shall be adjusted so that the holder of
each share thereof shall be entitled to receive, upon the conversion
thereof, the number of shares of Common Stock which the holder of a
share of $9.75 Preferred Stock would have been entitled to receive after
the happening of any of the events described above had such share been
converted immediately prior to the happening of such event or the record
date therefor, whichever is earlier. An adjustment made pursuant to
this clause (i) shall become effective (A) in the case of any such
dividend or distribution, immediately after the close of business on the
record date for the determination of holders of shares of Common Stock
entitled to receive such dividend or distribution, or (B) in the case of
any such subdivision, reclassification or combination, at the close of
business on the day upon which such corporate action becomes effective.
(ii) In case the Corporation shall at any time or from time to time
issue shares of Common Stock (or securities convertible into shares of
Common Stock) at a price per share (or having a conversion price per
share) less than $100.00 divided by the number
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of shares of Common Stock into which a share of $9.75 Preferred Stock is
then convertible (the "Conversion Price"), disregarding for the purposes
of this clause (ii) any limitations on conversion set forth in the first
sentence of this Section 8, as of the date of issuance of such shares or
of such convertible securities, then, and in each such case, the number
of shares of Common Stock into which each share of $9.75 Preferred Stock
is convertible shall be adjusted so that the holder of each share
thereof shall be entitled to receive, upon the conversion thereof, the
number of shares of Common Stock determined by multiplying (A) the
number of shares of Common Stock into which such share was convertible
on the day immediately prior to such date by (B) a fraction, the
numerator of which shall be the sum of (1) the number of shares of
Common Stock outstanding on such date and (2) the number of additional
shares of Common Stock issued (or into which the convertible securities
may convert), and the denominator of which shall be the sum of (1) the
number of shares of Common Stock outstanding on such date and (2) the
number of shares of Common Stock which the aggregate consideration
receivable by the Corporation for the total number of shares of Common
Stock so issued (or into which the convertible securities may convert)
would purchase at such Conversion Price on such date. An adjustment
made pursuant to this clause (ii) shall be made on the next Business Day
following the date on which any such issuance is made and shall be
effective retroactively immediately after the close of business on such
date. For purposes of this clause (ii), the aggregate consideration
receivable by the Corporation in connection with the issuance of shares
of Common Stock or of securities convertible into shares of Common Stock
shall be deemed to be equal to the sum of the aggregate offering price
(before deduction of reasonable underwriting discounts or commissions
and expenses) of all such securities plus the minimum aggregate amount,
if any, payable upon conversion of any such convertible securities into
shares of Common Stock. The issuance of any shares of Common Stock
(whether treasury shares or newly issued shares) pursuant to a dividend
or distribution on, or subdivision, combination or reclassification of,
the outstanding shares of Common Stock requiring an adjustment in the
conversion ratio pursuant to clause (i) of this paragraph (b), or
pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Corporation, and the investment of
additional optional amounts, in shares of Common Stock, in any such case
at a price per share of not less than 85% of the current market price
(determined as provided in such plans) per share of Common Stock, or
pursuant to any employee benefit plan or program of the Corporation at a
price per share of not less than the current market price (determined as
provided in such plans or programs), or pursuant to any option, warrant,
right, or convertible security outstanding as of the date hereof
(including, but not limited to, the Common Stock Purchase Rights issued
pursuant to the Rights Agreement between the Corporation and Ameritrust
Company National Association, dated as of October 29,1986, as amended as
of December 18, 1986, and supplemented and amended as of February 1,
1987, and as it may be further amended from time to time (the "Rights
Agreement"), and the $2.07 Cumulative Convertible Preferred Stock, $1.00
par value, and the $4.00 Cumulative Convertible Preferred Stock, $1.00
par value) shall not be deemed to constitute an issuance of Common Stock
or convertible securities by the Corporation to which this clause (ii)
applies.
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(iii) In case the Corporation shall at any time or from time to
time declare, order, pay or make a dividend or other distribution
(including, without limitation, any distribution of stock or other
securities or property or rights or warrants to subscribe for securities
of the Corporation or any of its Subsidiaries by way of dividend or
spin-off, except pursuant to the Rights Agreement) on its Common Stock,
other than (A) regular quarterly dividends payable in cash out of
surplus plus dividends payable in cash in an aggregate amount of up to
$200 million or (B) shares of Common Stock which are referred to in
clause (i) of this paragraph (b), then, and in each such case, the
number of shares of Common Stock into which each share of $9.75
Preferred Stock is convertible shall be adjusted so that the holder of
each share thereof shall be entitled to receive, upon the conversion
thereof, the number of shares of Common Stock determined by multiplying
(1) the number of shares of Common Stock into which such share was
convertible on the day immediately prior to the record date fixed for
the determination of stockholders entitled to receive such dividend or
distribution by (2) a fraction, the numerator of which shall be the
Current Market Price per share of Common Stock as of such record date,
and the denominator of which shall be such Current Market Price per
share of Common Stock less the Fair Market Value per share of Common
Stock (as determined in good faith by the Board of Directors of the
Corporation, a certified resolution with respect to which shall be
mailed to each holder of shares of $9.75 Preferred Stock) of such
dividend or distribution; provided, however, that in the event of a
distribution of shares of capital stock of a Subsidiary of the
Corporation (a "Spin-Off") made to holders of shares of Common Stock,
the numerator of such fraction shall be the sum of the Current Market
Price per share of Common Stock as of the 35th Trading Day after the
effective date of such Spin-Off and the Current Market Price of the
number of shares (or the fraction of a share) of capital stock of the
Subsidiary which is distributed in such Spin-Off in respect of one share
of Common Stock as of such 35th Trading Day and the denominator of which
shall be the Current Market Price per share of Common Stock as of such
35th Trading Day. An adjustment made pursuant to this clause (iii)
shall be made upon the opening of business on the next Business Day
following the date on which any such dividend or distribution is made
and shall be effective retroactively immediately after the close of
business on the record date fixed for the determination of stockholders
entitled to receive such dividend or distribution; provided, however, if
the proviso to the preceding sentence applies, then such adjustment
shall be made and be effective as of such 35th Trading Day after the
effective date of such Spin-Off.
(iv) In case at any time the Corporation shall be a party to any
transaction (including, without limitation, a merger, consolidation,
sale of all or substantially all of the Corporation's assets,
liquidation or recapitalization of the Common Stock and excluding any
transaction to which clause (i), (ii) or (iii) of this paragraph (b)
applies) in which the previously outstanding Common Stock shall be
changed into or exchanged for different securities of the Corporation or
common stock or other securities of another corporation or interests in
a noncorporate entity or other property (including cash) or any
combination of any of the foregoing (each such transaction being herein
called the "Transaction," the date of consummation of the Transaction
being herein called the "Consummation Date," the Corporation (in the
case of a recapitalization of the Common
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Stock to which this clause (iv) applies or any other such transaction in
which the Corporation retains substantially all of its assets and
survives as a corporation) or such other corporation or entity (in each
other case) being herein called the "Acquiring Company," and the common
stock (or equivalent equity interests) of the Acquiring Company being
herein called the "Acquirer's Common Stock"), then, as a condition of
the consummation of the Transaction, lawful and adequate provisions
shall be made so that each holder of shares of $9.75 Preferred Stock
shall be entitled, at the election of the $9.75 Preferred Stock as
provided in the following sentence, to the treatment accorded pursuant
to sub-clause (A) (1) or (A) (2) and, to the extent applicable, (A) (3)
or, under the circumstances specified therein, sub-clause (B) or (C) of
this clause (iv). The selection by the holders of shares of $9.75
Preferred Stock of the treatment to be accorded such shares from among
the alternatives specified in the preceding sentence shall require the
affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of $9.75 Preferred Stock, voting in person or by proxy, at a
meeting of such stockholders, which vote shall be taken on or before the
later of (1) the 30th day following the Consummation Date, and (2) the
60th day following the date of delivery or mailing to such holder of the
last proxy statement relating to the vote on the Transaction by the
holders of the Common Stock, and which vote shall bind all holders of
shares of $9.75 Preferred Stock and their transferees; if the holders of
shares of $9.75 Preferred Stock are unable to or for any other reason do
not make a selection, then the Board of Directors of the Corporation
shall make such selection, in accordance with this clause (iv), from
among the alternatives specified in this clause (iv). Notwithstanding
the foregoing, any holder of $9.75 Preferred Stock shall in all events
be entitled to the treatment accorded pursuant to sub-clause (A) (3) in
the event the circumstances specified therein shall occur. Any
selection made by the holders of shares of $9.75 Preferred Stock in
accordance with the preceding sentence shall be communicated in writing
to the Corporation as promptly as practicable after the vote referred to
above shall have been taken.
(A) In case of any Transaction, each share of $9.75 Preferred
Stock shall continue to remain outstanding and shall be subject to
all the provisions of the Certificate of Designations, Preferences
and Rights of $9.75 Cumulative Convertible Preferred Stock which
embodies this resolution, as in effect prior to such Transaction
except that
(1) each share of $9.75 Preferred Stock shall thereafter be
convertible (subject to the limitations on conversion set forth
in the first sentence of this Section 8) into, in lieu of the
Common Stock issuable upon such conversion prior to the
Consummation Date, shares of the Acquirer's Common Stock, unless
the Acquiring Company fails to meet the requirements set forth
in (4), (5) and (6) below, in which case shares of the common
stock of the corporation (herein called a "Parent") which
directly or indirectly controls the Acquiring Company if it
meets the requirements set forth in (4), (5) and (6) below, at a
conversion price per share equal to the Conversion Price in
effect immediately prior to the Consummation Date multiplied by
a fraction the numerator of which is the market price per share
(determined in the same manner as
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provided in the definition of Current Market Price) of the
Acquirer's Common Stock or the Parent's common stock, as the
case may be, immediately prior to the Consummation Date and the
denominator of which is the Current Market Price per share of
Common Stock immediately prior to the Consummation Date (subject
in each case to adjustments from and after the Consummation Date
as nearly equivalent as possible to the adjustments provided for
in this paragraph (b) of this Section 8), or
(2) each share of $9.75 Preferred Stock shall thereafter be
convertible (subject to the limitations on conversion set forth
in the first sentence of this Section 8) into, in lieu of the
Common Stock issuable upon such conversion prior to the
Consummation Date, the amount of securities or other property to
which such holder would actually have been entitled as a holder
of shares of Common Stock upon the consummation of the
Transaction if such holder had converted such shares of $9.75
Preferred Stock immediately prior to such Transaction (subject
to adjustments from and after the Consummation Date as nearly
equivalent as possible to the adjustments provided for in this
paragraph (b) of this Section 8); provided that if in connection
with the Transaction a tender or exchange offer shall have been
made and there shall have been acquired pursuant thereto more
than 50% of the outstanding shares of Common Stock, and if the
holders of shares of $9.75 Preferred Stock so designate in the
notice given to the Corporation which specifies their selection
of this alternative (A) (2), each holder of such shares shall be
entitled to receive upon conversion thereof, the amount of
securities or other property to which such holder would actually
have been entitled as a holder of shares of Common Stock if such
holder had converted such shares of $9.75 Preferred Stock prior
to the expiration of such tender or exchange offer and accepted
such offer and had sold therein the percentage of all the shares
of Common Stock issuable upon conversion of its shares of $9.75
Preferred Stock equal to the percentage of shares of the then
outstanding Common Stock so purchased in the tender or exchange
offer, with the remaining portion of its shares of $9.75
Preferred Stock thereafter being convertible into the amount of
securities or other property to which such holder would actually
have been entitled upon the consummation of the Transaction as
a holder of shares of Common Stock if such holder had converted
such shares of $9.75 Preferred Stock immediately prior to such
Transaction (subject to adjustments from and after the
Consummation Date as nearly equivalent as possible to the
adjustments provided for in this paragraph (b) of this Section
8), or
(3) if neither the Acquiring Company nor the Parent meets
the requirements set forth in (4), (5) and (6) below, each share
of $9.75 Preferred Stock shall thereafter be convertible into,
in lieu of the Common Stock issuable upon such conversion prior
to the Consummation Date (and subject to the limitations on
conversion set forth in the first sentence of this Section 8),
an amount in cash equal to the Fair Market Value in cash, as of
the
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Consummation Date (computed without interest), of the shares of
capital stock or other securities or property (other than cash)
to which the holder of shares of $9.75 Preferred Stock would be
entitled, pursuant to (2) above (including the proviso thereof,
if applicable) upon conversion of each such share, as determined
by an independent investment banking firm (with an established
national reputation as a valuer of equity securities) selected
by the Corporation, plus the cash, if any, into which each such
share of $9.75 Preferred Stock would be convertible pursuant to
(2) above.
The Corporation agrees to obtain, and deliver to each holder of
shares of $9.75 Preferred Stock a copy of the determination of such
an independent investment banking firm within 15 days after the
Consummation Date of any Transaction to which (3) is applicable.
The requirements referred to above in the case of the Acquiring
Company or its Parent are that immediately after the Consummation
Date:
(4) it is a solvent corporation or other entity organized
under the laws of any State of the United States of America
having its common stock or, in the case of an entity other than
a corporation, equivalent equity securities, listed on the New
York Stock Exchange or the American Stock Exchange or quoted by
the NASDAQ National Market System or any successor thereto or
comparable system, and such common stock or equivalent equity
security continues to meet the requirements for such listing or
quotation,
(5) it is required to file, and in each of its three fiscal
years immediately preceding the Consummation Date (or since its
inception) has filed, reports with the Securities and Exchange
Commission (the "Commission") pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended, and
(6) in the case of the Parent, such Parent is required to
include the Acquiring Company in the consolidated financial
statements contained in the Parent's Annual Report on Form 10-K
as filed with the Commission and is not itself included in the
consolidated financial statements of any other Person (other
than its consolidated subsidiaries).
Notwithstanding anything contained herein to the contrary, the
Corporation shall not effect any Transaction unless prior to the
consummation thereof each corporation or entity (other than the
Corporation) which may be required to deliver any securities or
other property upon the conversion of shares of $9.75 Preferred
Stock, or the satisfaction of conversion rights as provided herein
shall assume, by written instrument delivered to each holder of
shares of $9.75 Preferred Stock, the obligation to deliver to such
holder such securities or other property to which, in accordance
with the foregoing provisions, such holder may be entitled, and such
corporation or entity shall have similarly delivered to each holder
of shares of $9.75
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Preferred Stock an opinion of counsel for such corporation or
entity, which opinion shall state that the rights, powers and
privileges of the outstanding shares of $9.75 Preferred Stock,
including, without limitation, the conversion provisions applicable
thereto, if any, shall thereafter continue in full force and effect
and shall be enforceable against such corporation or entity in
accordance with the terms hereof and thereof.
(B) Notwithstanding the foregoing, if the Consummation Date of a
Transaction in which the Corporation is a party occurs prior to
February 1, 1990 and if during any period of 12 consecutive months
ending on or prior to February 1, 1990, the daily average of all the
closing sales prices for each month during such period shall have
been less than $14.75 (as such price shall be adjusted in accordance
with this sub-clause (B)), the shares of $9.75 Preferred Stock
shall, if the holders of shares of $9.75 Preferred Stock shall so
select, in the manner prescribed above in this clause (iv), be
redeemed by the Corporation for, or exchanged in a Transaction which
is a merger or consolidation for, a cash amount equal to $100.00 per
share plus an amount per share equal to all unpaid dividends
thereon, including accrued dividends, whether or not declared, to
the date such Transaction is consummated; provided, that if such
Transaction is a merger or consolidation, a definitive agreement for
any such merger or consolidation is entered into within 20 days
after the end of such 12-month period and is consummated within 75
days thereafter, and if such Transaction is other than a merger or
consolidation, it is consummated within 75 days after the end of
such 12-month period. The price set forth in the preceding sentence
shall from and after the record date for a dividend or distribution
requiring an adjustment in the conversion rate pursuant to clause
(iii) of this paragraph (b) be reduced by the Fair Market Value per
share of Common Stock of such dividend or distribution as determined
pursuant to clause (iii) and shall also be appropriately adjusted in
the event of an occurrence requiring an adjustment in the conversion
rate pursuant to clause (i) of this paragraph (b).
(C) In case of any Transaction, provision may be made, in lieu
of the adjustments hereinbefore provided for in this clause (iv),
for each share of $9.75 Preferred Stock to be exchanged for or to be
converted in such Transaction, in a manner and for consideration
other than as specified in any of sub-clauses (A) or (B); provided,
however, that any such treatment shall require both (1) the approval
of the Board of Directors of the Corporation, which approval
includes the affirmative vote of at least 80% of the directors then
in office other than those who have been elected pursuant to
paragraph (a) of Section 3 hereof and (2) the favorable opinion of
an independent investment banking firm (with an established national
reputation as a valuer of equity securities) selected by the Board
of Directors of the Corporation which is to the effect that the
Transaction is fair to the holders of shares of $9.75 Preferred
Stock, and to the holders of shares of Common Stock in view of the
treatment in such Transaction of the $9.75 Preferred Stock.
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All calculations under this paragraph (b) shall be made to the nearest one
one-hundredth of a share.
(c) If any adjustment in the number of shares of Common Stock into which
each share of $9.75 Preferred Stock may be converted required pursuant to
this Section 8 would result in an increase or decrease of less than 1% in
the number of shares of Common Stock into which each share of $9.75
Preferred Stock is then convertible, the amount of any such adjustment
shall be carried forward and adjustment with respect thereto shall be made
at the earlier of (i) the time of and together with any subsequent
adjustment, which, together with such amount and any other amount or
amounts so carried forward, shall aggregate at least 1% of the number of
shares of Common Stock into which each share of $9.75 Preferred Stock is
then convertible or (ii) three years after the date on which such
adjustment otherwise would have been made.
(d) The Board of Directors may increase the number of shares of Common
Stock into which each share of $9.75 Preferred Stock may be converted, in
addition to the adjustments required by this Section 8, as shall be
determined by it (as evidenced by a resolution of the Board of Directors)
to be advisable in order to avoid or diminish any income deemed to be
received by any holder for federal income tax purposes of shares of Common
Stock or $9.75 Preferred Stock resulting from any events or occurrences
giving rise to adjustments pursuant to this Section 8 or from any other
similar event.
(e) The holder of any shares of $9.75 Preferred Stock may exercise his
right to convert such shares into shares of Common Stock by surrendering
for such purpose to the Corporation, at its principal office or at such
other office or agency maintained by the Corporation for that purpose, a
certificate or certificates representing the shares of $9.75 Preferred
Stock to be converted accompanied by a written notice stating that such
holder elects to convert all or a specified whole number of such shares in
accordance with the provisions of this Section 8 and specifying the name or
names in which such holder wishes the certificate or certificates for
shares of Common Stock to be issued. In case such notice shall specify a
name or names other than that of such holder, such notice shall be
accompanied by payment of all transfer taxes payable upon the issuance of
shares of Common Stock in such name or names. Other than such taxes, the
Corporation will pay any and all issue and other taxes (other than taxes
based on income) that may be payable in respect of any issue or delivery of
shares of Common Stock on conversion of $9.75 Preferred Stock pursuant
hereto. As promptly as practicable, and in any event within five business
days after the surrender of such certificate or certificates and the
receipt of such notice relating thereto and, if applicable, payment of all
transfer taxes (or the demonstration to the satisfaction of the Corporation
that such taxes have been paid), the Corporation shall deliver or cause to
be delivered (i) certificates representing the number of validly issued,
fully paid and nonassessable full shares of Common Stock to which the
holder of shares of $9.75 Preferred Stock so converted shall be entitled
and (ii) if less than the full number of shares of $9.75 Preferred Stock
evidenced by the surrendered certificate or certificates are being
converted, a new certificate or certificates, of like tenor, for the number
of shares evidenced by such surrendered certificate or certificates less
the number of shares converted. Such conversion shall be deemed to have
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been made at the close of business on the date of giving of such notice and
of such surrender of the certificate or certificates representing the
shares of $9.75 Preferred Stock to be converted so that the rights of the
holder thereof as to the shares being converted shall cease except for the
right to receive shares of Common Stock in accordance herewith, and the
person entitled to receive the shares of Common Stock shall be treated for
all purposes as having become the record holder of such shares of Common
Stock at such time. The Corporation shall not be required to convert, and
no surrender of shares of $9.75 Preferred Stock shall be effective for that
purpose, while the transfer books of the Corporation for the Common Stock
are closed for any purpose (but not for any period in excess of 15 days);
but the surrender of shares of $9.75 Preferred Stock for conversion during
any period while such books are so closed shall become effective for
conversion immediately upon the reopening of such books, as if the
conversion had been made on the date such shares of $9.75 Preferred Stock
were surrendered, and at the conversion rate in effect at the date of such
surrender.
(f) Subject to the limitations on conversion set forth in the first
sentence of Section 8 hereof, shares of $9.75 Preferred Stock may be
converted at any time up to the close of business on the second Business
Day preceding the date fixed for redemption of such shares pursuant to
Section 5 hereof.
(g) Upon conversion of any shares of $9.75 Preferred Stock, the holder
thereof shall not be entitled to receive any accumulated, accrued or unpaid
dividends in respect of the shares so converted; provided, that such holder
shall be entitled to receive any dividends on such shares of $9.75
Preferred Stock declared prior to such conversion if such holder held such
shares on the record date fixed for the determination of holders of shares
of $9.75 Preferred Stock entitled to receive payment of such dividend.
(h) In connection with the conversion of any shares of $9.75 Preferred
Stock, no fractions of shares of Common Stock shall be issued, but in lieu
thereof the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional interest
multiplied by the Current Market Price per share of Common Stock on the day
on which such shares of $9.75 Preferred Stock are deemed to have been
converted.
(i) The Corporation shall at all times reserve and keep available out of
its authorized and unissued Common Stock, solely for the purpose of
effecting the conversion of the $9.75 Preferred Stock, such number of
shares of Common Stock as shall from time to time be sufficient to effect
the conversion of all then outstanding shares of $9.75 Preferred Stock.
The Corporation shall from time to time, in accordance with the laws of
Delaware, increase the authorized amount of Common Stock if at any time the
number of authorized shares of Common Stock remaining unissued shall not be
sufficient to permit the conversion at such time of all then outstanding
shares of $9.75 Preferred Stock.
SECTION 9. Reports as to Adjustments. Whenever the number of shares of
Common Stock into which each share of $9.75 Preferred Stock is convertible is
adjusted as provided in Section 8 hereof, the Corporation shall promptly mail to
the holders of record of the outstanding shares of $9.75 Preferred Stock at
their respective addresses as the same shall appear in the Corporation's stock
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records a notice stating that the number of shares of Common Stock into which
the shares of $9.75 Preferred Stock are convertible has been adjusted and
setting forth the new number of shares of Common Stock (or describing the new
stock, securities, cash or other property) into which each share of $9.75
Preferred Stock is convertible as a result of such adjustment, a brief statement
of the facts requiring such adjustment and the computation thereof, and when
such adjustment became effective.
SECTION 10. Definitions. For the purposes of the Certificate of
Designations, Preferences and Rights of $9.75 Cumulative Convertible Preferred
Stock which embodies this resolution:
"Business Day" means any day other than a Saturday, Sunday, or a day on
which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
"Consolidated Assets" at any time means the assets of the Corporation and
its Subsidiaries or of any successor Person to the Corporation and its
Subsidiaries or of any Reporting Entity and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted accounting principles
as of February 1, 1987.
"Consolidated Funded Debt" at any time means the Funded Debt of the
Corporation and its Subsidiaries or of any successor Person to the Corporation
and its Subsidiaries or of any Reporting Entity and its Subsidiaries determined
on a consolidated basis in accordance with generally accepted accounting
principles as of February 1, 1987.
"Current Market Price" per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices per share of Common Stock
for the 30 consecutive Trading Days immediately prior to such date. The closing
price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, the last quoted sale price or, if
not so quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported by the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ") or such other system then in use,
or, if on any such date the Common Stock is not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Common Stock selected by the Board of
Directors. If the Common Stock is not publicly held or so listed or publicly
traded, "Current Market Price" shall mean the Fair Market Value per share as
determined in good faith by the Board of Directors of the Corporation.
"Fair Market Value" means the amount which a willing buyer would pay a
willing seller in an arm's-length transaction.
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"Funded Debt" of any Person means (i) all obligations for money borrowed,
(ii) all obligations evidenced by a note, bond, debenture or similar evidence of
indebtedness, (iii) all obligations representing the deferred and unpaid
purchase price for property or services, (iv) all capitalized lease and
production payment obligations and (v) all guarantees of obligations of others
of the types specified in clauses (i) through (iv) above, in each case where
such obligations mature, or which are extendible or renewable at the option of
the obligor on such obligations to a time, more than 12 months after the time of
the computation of the amount of Funded Debt in the respective amounts which
would be shown for such obligations, under generally accepted accounting
principles, on a balance sheet of such Person as a liability item other than a
current liability.
"Generally accepted accounting principles" means with respect to any
computation required or permitted hereunder such accounting principles which are
generally accepted as of February 1, 1987.
"Gross Tangible Worth" at any time means Consolidated Assets less the sum
of (i) all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being computed), (ii)
total intangibles, (iii) deferred taxes, (iv) other liabilities (excluding
Funded Debt) and (v) minority interests in unconsolidated Subsidiaries of the
Corporation and its Subsidiaries or of any successor Person to the Corporation
and its Subsidiaries or of any Reporting Entity and its Subsidiaries determined
on a consolidated basis in accordance with generally accepted accounting
principles as of February 1, 1987.
"Person" shall mean any individual, firm, corporation or other entity, and
shall include any successor (by merger or otherwise) of such entity.
"Subsidiary" of any Person means any corporation or other entity of which a
majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by such Person.
"Trading Day" means a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Trading Value" per share of $9.75 Preferred Stock on any particular date
is the product of (i) the number of shares of Common Stock into which one share
of $9.75 Preferred Stock is convertible on such date (disregarding for the
purposes of this definition any limitations on conversion set forth in Section 8
hereof) and (ii) the then-Current Market Price per share of Common Stock.
"Voting Stock" means the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors.
SECTION 11. Rank. The $9.75 Preferred Stock shall rank on a parity as to
dividends and upon liquidation, dissolution or winding up with the outstanding
shares of the Corporation's $2.07
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Cumulative Convertible Preferred Stock, $1.00 par value, and $4.00 Cumulative
Convertible Preferred Stock, $1.00 par value.
Junior Preferred Stock, Series A
The following is a statement of the powers, preferences, rights,
qualifications, limitations and restrictions of the Series, consisting of
3,250,000 shares, $1.00 par value of the Junior Preferred Stock, Series A.
SECTION 1. Designation and Amount. The shares of such series shall be
designated as the "Junior Preferred Stock, Series A" (the "Junior Preferred
Stock") and the number of shares constituting such series shall be 3,250,000,
which number, subject to the provisions of the Certificate of Incorporation, may
be increased or decreased by the Board of Directors without a vote of
stockholders; provided, however, that such number may not be decreased below the
number of the then currently outstanding shares of Junior Preferred Stock plus
the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Junior Preferred Stock.
SECTION 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of the
Corporation's $4.00 Cumulative Convertible Preferred Stock, $9.75
Cumulative Convertible Preferred Stock and any other series of Preferred
Stock (or any similar stock) ranking senior to the Junior Preferred Stock
with respect to dividends, the holders of shares of Junior Preferred Stock,
in preference to the holders of Common Stock with a par value of $1.00 per
share (the "Common Stock") of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, cumulative
quarterly dividends payable in cash on the fifteenth day of March, June,
September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Junior Preferred Stock, in an amount per share
(rounded to the nearest cent), subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate per share amount of
all cash dividends, and 100 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share
of Junior Preferred Stock. In the event the Corporation shall at any time
after September 12, 1988 (the "Rights Declaration Date") declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which holders
of shares of Junior Preferred Stock were entitled immediately prior to such
event under the preceding sentence shall be adjusted
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by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Junior Preferred Stock as provided in paragraph (a) of this Section
immediately before it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date, and the next subsequent Quarterly Dividend Payment Date, a dividend
of $0.01 per share on the Junior Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Junior Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Junior Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Junior
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Junior Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not
more than 50 calendar days prior to the date fixed for the payment thereof.
SECTION 3. Voting Rights. The holders of shares of Junior Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Junior Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of
shares of Junior Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
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(b) Except as otherwise provided herein or by law, the holders of
shares of Junior Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(c) Except as set forth in Section 11 hereof, or as required by law,
holders of Junior Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
SECTION 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Junior Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Junior Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preferred Stock,
except dividends paid ratably on the Junior Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred Stock,
provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the Junior Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Junior Preferred Stock, or any shares of stock ranking on a
parity with the Junior Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the
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Corporation could, under paragraph (a) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
SECTION 5. No Redemption. The shares of Junior Preferred Stock shall not
be redeemable.
SECTION 6. Reacquired Shares. Any shares of Junior Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
SECTION 7. Liquidation, Dissolution or Winding Up. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, no
distribution or payment shall be made (a) to the holders of Common Stock or any
other shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred Stock unless,
prior thereto, the holders of shares of Junior Preferred Stock shall have
received an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Stock, plus an amount equal to all accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, or (b) to the holders of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Junior
Preferred Stock, except distributions made ratably on the Junior Preferred Stock
and all other such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time after the Rights
Declaration Date declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Junior Preferred Stock were entitled immediately prior to
such event under the proviso in clause (a) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8. Consolidation, Merger, Etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Junior Preferred Stock shall at the same time be similarly exchanged or changed
into an amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater
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or lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change of
shares of Junior Preferred Stock shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock outstanding immediately prior to such event.
SECTION 9. Fractional Shares. The Corporation may issue fractions and
certificates representing fractions of a share of Junior Preferred Stock in
integral multiples of one one-hundredth of a share of Junior Preferred Stock, or
in lieu thereof, at the election of the Board of Directors of the Corporation at
the time of the first issue of any shares of Junior Preferred Stock, evidence
such fractions by depositary receipts, pursuant to an appropriate agreement
between the Corporation and a depositary selected by it, provided that such
agreement shall provide that the holders of such depositary receipts shall have
all the rights, privileges and preferences of Junior Preferred Stock. In the
event that fractional shares of Junior Preferred Stock are issued, the holders
thereof shall have all the rights provided herein for holders of full shares of
Junior Preferred Stock in the proportion with such fraction bears to a full
share.
SECTION 10. Rank. The Junior Preferred Stock shall rank junior to all
other series of the Corporation's Preferred Stock as to the payment of dividends
and the distribution of assets in liquidation, unless the terms of any such
series shall provide otherwise.
SECTION 11. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Junior Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least a majority of the outstanding shares of Junior Preferred Stock, voting
separately as a class.
FIFTH. In furtherance of, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized and empowered:
(a) To make and alter the By-Laws of the Corporation; provided, however,
that the By-Laws made by the Board of Directors under the powers hereby
conferred may be altered, changed, amended or repealed by the Board of
Directors or by the stockholders having voting power with respect thereto,
except that By-Laws 6, 12, 15 and 49 shall not be altered, changed, amended
or repealed, nor shall any provision inconsistent with such By-Laws be
adopted, without the affirmative vote of the holders of at least 80% of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class.
Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least 80% of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class,
shall be required to alter, change, amend, repeal, or adopt any provision
inconsistent with, this Section (a) of Article Fifth; and
(b) From time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the Corporation
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or any of them, shall be open to inspection of stockholders; and no
stockholder shall have any right to inspect any account, book or document
of the Corporation, except as conferred by applicable law and subject to
the rights, if any, of the holders of any series of Preferred Stock.
The Corporation may in its By-Laws confer powers upon its Board of
Directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon the Board of Directors by applicable law.
SIXTH. The stockholders and Board of Directors of the Corporation shall
have power to hold their meetings and to have one or more offices of the
Corporation within or without the State of Delaware, and to keep the books of
the Corporation outside of the State of Delaware at such place or places as may
from time to time be designated by the Board of Directors.
SEVENTH. Subject to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional Directors under specific circumstances:
(a) Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at an annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing of such stockholders; and
(b) Special meetings of stockholders of the Corporation may be called
only by the Chairman of the Board of Directors and shall be promptly called
by the Chairman or the Secretary at the written request of a majority of
the Board of Directors upon not fewer than ten nor more than 60 days'
written notice.
Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least 80% of the
combined voting power of all shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, change, amend, repeal, or adopt any provision inconsistent
with, this Article Seventh.
EIGHTH. SECTION 1. Number, Election and Terms of Directors. Subject to
the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect additional
Directors under specific circumstances, the number of the Directors of the
Corporation shall be fixed from time to time by or pursuant to the By-Laws of
the Corporation. The Directors, other than those who may be elected by the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, shall be classified with respect to
the time for which they severally hold office into three classes, as nearly
their equal in number as possible, as shall be provided in the manner specified
in the By-Laws of the Corporation. At the annual meeting of the stockholders
held in 1985, one class shall be originally elected for a term expiring at the
annual meeting of stockholders to be held in 1986, another class shall be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 1987, and another class shall be originally elected for a term
expiring at the annual meeting of stockholders to be held in 1988, with the
members of each class to hold office until their successors are elected and
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qualified. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of Directors whose term expires at the
meeting shall, subject to Section 4 of this Article Eighth, be elected by
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
SECTION 2. Stockholder Nomination of Director Candidates and Introduction
of Business. Advance notice of stockholder nominations for the election of
Directors and advance notice of business to be brought by stockholders before an
annual meeting shall be given in the manner provided in the By-Laws of the
Corporation.
SECTION 3. Newly Created Directorships and Vacancies. Except as otherwise
provided for or fixed pursuant to the provisions of Article Fourth of this
Certificate of Incorporation relating to the rights of the holders of any class
or series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect Directors under specified circumstances, newly created
directorships resulting from any increase in the number of Directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled only by the affirmative
vote of a majority of the remaining Directors then in office, even though less
than a quorum of the Board of Directors. Any Director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the class of Directors in which the new directorship was created or the
vacancy occurred and until such Director's successor shall have been elected and
qualified. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of an incumbent Director.
SECTION 4. Cumulative Voting in Certain Circumstances. In any election of
Directors of the Corporation on or after the date on which the Corporation
becomes aware that any 30% Stockholder (as defined below) has become a 30%
Stockholder, there shall be cumulative voting for election of Directors so that
any holder of shares of Voting Stock may cumulate the voting power represented
by his shares and give one candidate a number of votes equal to the number of
Directors to be elected multiplied by the number of votes to which such shares
are entitled, or distribute such votes on the same principle among as many
candidates for election as such holder of shares determines. For the purposes
of this Section 4 of Article Eighth, a "30% Stockholder" shall mean any person
(other than the Corporation and any other corporation of which a majority of the
voting power of the capital stock entitled to vote generally in the election of
directors is owned, directly or indirectly, by the Corporation) who or which is
the beneficial owner, directly or indirectly, of 30% or more of the outstanding
Voting Stock.
SECTION 5. Removal. Subject to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect additional Directors under specified circumstances,
any Director may be removed from office only by the affirmative vote of the
holders of at least 80% of the combined voting power of the outstanding shares
of Voting Stock, voting together as a single class; provided, that
notwithstanding the foregoing provisions of this Section 5 of this Article
Eighth, if at any time when cumulative voting is permitted pursuant to Section 4
of this Article Eighth less than the entire Board of Directors is to be removed,
no Director may be removed from office if the votes cast against his removal
would be sufficient
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to elect him as a Director if then cumulatively voted for him at an election of
the class of Directors of which he is a part.
SECTION 6. Amendment, Repeal or Alteration. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the combined voting power of the
outstanding shares of the Voting Stock, voting together as a single class, shall
be required to alter, change, amend, repeal, or adopt any provision inconsistent
with, this Article Eighth.
SECTION 7. Certain Definitions. For the purpose of this Article Eighth:
(a) A "person" shall mean any individual, firm, corporation or other
entity.
(b) "Voting Stock" shall mean the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of Directors.
In any vote required by or provided for in this Article Eighth, each share
of Voting Stock shall have the number of votes granted to it generally in
the election of Directors.
(c) A person shall be a "beneficial owner" of any shares of Voting
Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding; or
(iii) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any Voting Stock;
provided, however, that no person shall be deemed to be a "beneficial
owner" of any shares of Voting Stock solely by reason of such person's
right to vote or to acquire such Voting Stock pursuant to any agreement or
instrument approved by a majority of the Board of Directors.
(d) In determining whether a person is a 30% Stockholder pursuant to
Section 4 of this Article Eighth, any class of Voting Stock outstanding
shall be deemed to include any Voting Stock deemed owned through
application of paragraph (c) of this Section 7 but shall not include any
other securities of such class which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
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(e) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1, 1985.
NINTH. SECTION 1. Prevention of Greenmail. Any direct or indirect
purchase or other acquisition by the Corporation of any Voting Stock of any
class from any Interested Stockholder at a price in excess of the Market Price
shall, except as hereinafter provided, require the affirmative vote of the
holders of at least a majority of the combined voting power of the Voting Stock,
voting as a single class, excluding any votes cast with respect to shares of
Voting Stock beneficially owned by such Interested Stockholder. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law in or any
agreement with any national securities exchange, or otherwise, but no such
affirmative vote shall be required with respect to any purchase or other
acquisition of securities made as part of (a) a tender or exchange offer by the
Corporation to purchase securities of the same class made on the same terms to
all holders of such securities and complying with the applicable requirements of
the United States securities laws and the rules and regulations thereunder, (b)
the redemption of any shares of Preferred Stock pursuant to the provisions of
Article Fourth of this Certificate of Incorporation or any Preferred Stock
Designation, or (c) pursuant to an open-market purchase program conducted in
accordance with the requirements of Rule 10b-18 promulgated by the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, or any
successor rule or regulation.
SECTION 2. Prevention of Self-Dealing. In addition to any action,
including any vote by stockholders required by law or this Certificate of
Incorporation, the approval or authorization of any Self-Dealing Transaction
shall require either (a) the approval of a majority of Disinterested Directors
or (b) the affirmative vote of the holders of at least a majority of the
combined voting power of the Voting Stock, voting together as a single class,
excluding any votes cast with respect to shares of Voting Stock beneficially
owned by an Interested Stockholder which is directly or indirectly a party, or
an Affiliate or Associate of which is directly or indirectly a party, to such
Self-Dealing Transaction.
SECTION 3. Certain Definitions. For the purpose of this Article Ninth:
(a) A "person" shall mean any individual, firm, corporation or other
entity.
(b) "Voting Stock" shall mean the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of Directors.
In any vote required by or provided for in this Article Ninth, each share
of Voting Stock shall have the number of votes granted to it generally in
the election of Directors.
(c) "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than 5%
of the outstanding Voting Stock; or
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(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of more than 5% of the
outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any Voting
Stock of the Corporation which at any time within the two-year period
immediately prior to the date in question was beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933.
(d) A person shall be a "beneficial owner" of any shares of Voting
Stock:
(i) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has
(a) the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding; or
(iii) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates had any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any Voting Stock.
(e) In determining whether a person is an Interested Stockholder
pursuant to paragraph (c) of this Section 3, any class of Voting Stock
outstanding shall be deemed to include any Voting Stock deemed owned
through application of paragraph (d) of this Section 3 but shall not
include any other securities of such class which may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(f) "Self-Dealing Transaction" means any of the following transactions:
(i) any merger or consolidation of the Corporation or any Subsidiary
with (a) any Interested Stockholder or (b) any other corporation
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate of an Interested
Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $25,000,000 or more or any loan, advance,
guarantee or other financial assistance, including any tax credit or
other tax advantages,
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to or with any Interested Stockholder or any Affiliate of any Interested
Stockholder which involves a financial obligation or benefit of
$25,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate fair
market value of $25,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any
class of Voting Stock of the Corporation or any Subsidiary which is
directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder.
(g) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1, 1985.
(h) "Subsidiary" means any corporation of which a majority of any class
of shares of such corporation entitled to vote generally in the election
of directors is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph (c) of this Section 3, the term
"Subsidiary" shall mean only a corporation of which a majority of the
combined voting power of all shares of such corporation entitled to vote
generally in the election of directors is owned, directly or indirectly, by
the Corporation.
(i) "Disinterested Director" means any member of the Board of Directors
of the Corporation who is unaffiliated with the Interested Stockholder and
was a member of the Board of Directors prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor
of a Disinterested Director who is unaffiliated with the Interested
Stockholder and is recommended to succeed a Disinterested Director by a
majority of Disinterested Directors then on the Board of Directors.
(j) "Market Price" means the average of the closing sales prices on the
20 regular trading days immediately preceding the date of any binding
agreement to purchase shares of Voting Stock of the class of Voting Stock
in question on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such class of Voting Stock is not quoted on the Composite
Tape, on the New York Stock Exchange, or, if such class of Voting Stock is
not listed on such
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Exchange, on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such class of Voting
Stock is listed, or, if such class of Voting Stock is not listed on any
such exchange, the last closing bid quotations with respect to a share of
such class of Voting Stock immediately preceding the time in question on
the National Association of Securities Dealers, Inc., Automated Quotations
System or any system then in use (or any other system of reporting or
ascertaining quotations then available), or if such class of Voting Stock
is not so quoted, the fair market value at the time in question of such
stock as determined by the Board of Directors in good faith.
SECTION 4. Powers of the Board of Directors. A majority of the
Disinterested Directors, or, if there are no Disinterested Directors, a majority
of the members of the Board of Directors then in office, shall have the power to
determine, for the purposes of this Article Ninth, on the basis of information
known to them, (a) whether a person is an Interested Stockholder, (b) the number
of shares of Voting Stock beneficially owned by any person, (c) whether a person
is an Affiliate or Associate of another, and (d) whether the assets or financial
obligations or benefits which are the subject of any Self-Dealing Transaction
have, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Self-Dealing Transaction
has, an aggregate fair market value of or involve $25,000,000 or more. A
majority of the Disinterested Directors, or, if there are no Disinterested
Directors, a majority of the members of the Board of Directors then in office,
shall have the further power to interpret all of the terms and provisions of
this Article Ninth.
SECTION 5. Amendment, Repeal, etc. Notwithstanding anything contained in
this Certificate of Incorporation or the By-Laws of the Corporation to the
contrary, the alteration, change, amendment, repeal or adoption of any
provisions inconsistent with this Article Ninth shall require the affirmative
vote of the holders of a majority of the combined voting power of the
outstanding Voting Stock, excluding any votes cast with respect to shares of
Voting Stock beneficially owned by any Interested Stockholder, voting together
as a single class, but in no event less than the affirmative vote of 80% of
combined voting power of the outstanding shares of Voting Stock, including
shares of Voting Stock beneficially owned by any Interested Stockholder, voting
together as a single class.
TENTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, including
in a Preferred Stock Designation, in the manner now or hereafter prescribed by
applicable law and this Certificate of Incorporation, including any applicable
Preferred Stock Designation, and all rights conferred upon stockholders herein
are created subject to this reservation.
ELEVENTH. A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law
as the same exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph 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.
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