<PAGE> 1
EXHIBIT 3.01
RESTATED CERTIFICATE OF INCORPORATION
OF
OCEANEERING INTERNATIONAL, INC.
Oceaneering International, Inc. (the "corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the "DGCL"), hereby adopts this
Restated Certificate of Incorporation, which accurately restates and integrates
the provisions of the existing Certificate of Incorporation of the corporation
as heretofore amended (as so amended, the "Certificate of Incorporation") and
does hereby further certify that:
1. The name of the corporation is Oceaneering International,
Inc. The original certificate of incorporation of the corporation was filed with
the Secretary of State of the State of Delaware on June 20, 1969 under the name
Oceaneering International, Inc.
2. The board of directors of the corporation has duly adopted
this Restated Certificate of Incorporation in accordance with Section 245 of the
DGCL and without a vote of the corporation's stockholders. This Restated
Certificate of Incorporation only restates and integrates and does not further
amend the provisions of the Certificate of Incorporation, and no discrepancy
exists between those provisions and the provisions hereof.
3. The Certificate of Incorporation is hereby restated to read
in its entirety as follows:
RESTATED CERTIFICATE OF INCORPORATION
OF
OCEANEERING INTERNATIONAL, INC.
* * * *
FIRST. The name of the corporation is OCEANEERING INTERNATIONAL, INC.
SECOND. The address of its registered office in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware
19801. The name of its registered agent at such address is The Corporation Trust
Company.
THIRD. The nature of the business or purposes to be conducted or
promoted is:
To engage in the business of commercial deep-sea diving and developing,
marketing, leasing, selling and supplying deep-sea diving equipment and
services.
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
1
<PAGE> 2
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trade-marks and trade names, relating to
or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital stock,
or any voting trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies
syndicates, associations, firms, trusts or persons, public or private, or by the
government of the United States of America, or by any foreign government, or by
any state, territory, province, municipality or other political subdivision or
by any governmental agency, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to execute
consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof.
To borrow or raise moneys for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the corporation, whether at
the time owned or thereafter acquired, and to sell, pledge or otherwise dispose
of such bonds or other obligations of the corporation for its corporate
purposes.
To purchase, receive, take by grant, gift, devise, bequest or
otherwise, lease, or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest therein,
wherever situated, and to sell, convey, lease, exchange, transfer or otherwise
dispose of, or mortgage or pledge, all or any of the corporation's property and
assets, or any interest therein, wherever situated.
In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or by any other law of
Delaware or by this certificate of incorporation together with any powers
incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business or purposes
of the corporation.
The business and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from, the terms of any other
2
<PAGE> 3
clause in this certificate of incorporation, but the business and purposes
specified in each of the foregoing clauses of this article shall be regarded as
independent business and purposes.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is Ninety-Three Million (93,000,000), consisting of
Ninety Million (90,000,000) shares of Common Stock of the par value of
Twenty-Five Cents ($.25) per share and Three Million (3,000,000) shares of
Preferred Stock of the par value of One Dollar ($1.00) per share.
The designations, powers, preferences and rights, and the
qualifications, limitations and restrictions of each class of capital stock of
the Corporation are as follows:
(a) COMMON STOCK
1. Voting Rights of Common Stock. Each holder of Common Stock
shall be entitled to one vote for each share of Common Stock on each
matter submitted to a vote of the stockholders of the Corporation.
2. Dividends on Common Stock. The holders of Common Stock
shall be entitled to receive dividends on shares of Common Stock when,
if and as declared by the board of directors of the Corporation.
3. Distribution on Common Stock in the Event of Dissolution,
Liquidation or Winding Up. In the event of any voluntary or involuntary
dissolution, liquidation, or winding up of the Corporation, after
payment or provision for payment of the debts and other liabilities of
the Corporation and the amounts, if any, to which the holders of all
classes of Preferred Stock may be entitled, the holders of Common Stock
shall be entitled to share ratably in the remaining assets of the
Corporation.
(b) PREFERRED STOCK
1. Authority of the board of directors to Issue Preferred
Stock. The board of directors may by resolution from time to time
classify or reclassify and issue in one or more series any unissued
shares of Preferred Stock, and may fix or alter in any one or more
respects, from time to time before issuance of such shares, the number
and designation of any series or classification, liquidation and
dividend rights, conversion rights, and any other rights, restrictions
and qualifications of and the terms of any purchase, retirement or
sinking fund which may be provided for such shares of Preferred Stock.
2. Filing Requirements. Before any such Preferred Stock is
issued, the board of directors shall cause to be filed with the
Secretary of State, State of Delaware, a certificate setting forth a
copy of the resolutions of the board of directors of the Corporation
containing a description of any such class or series of Preferred Stock
and the terms of issuance thereof
3
<PAGE> 4
duly executed, acknowledged and filed in accordance with Section 103 of
the Delaware Corporation Law.
In accordance with the provisions of this Article FOURTH, the
board of directors of the corporation has designated shares of
Preferred Stock with the voting powers, preferences and relative,
participating, optional or other rights and the qualifications,
limitations and restrictions thereof as set forth in Exhibit A hereto,
which is hereby incorporated by reference herein.
FIFTH. The name and mailing address of each incorporator is as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
B. J. Consono 100 West Tenth Street
Wilmington, Delaware
J. L. Rivera 100 West Tenth Street
Wilmington, Delaware
F. J. Obara, Jr. 100 West Tenth Street
Wilmington, Delaware
</TABLE>
SIXTH. The corporation is to have perpetual existence.
SEVENTH. In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more committees,
each committee to consist of two or more of the directors of the corporation.
The board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in the resolution or
in the by-laws of the corporation, shall have and may exercise the powers of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; provided, however, the by-laws may provide that in
the absence or disqualification of any member of such committee or committees,
the
4
<PAGE> 5
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
When and as authorized by the affirmative vote of the holders of the
percentage as required by law or by the certificate of incorporation of the
corporation of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called upon such notice as is required by statute, or
when authorized by the written consent of the holders of the required percentage
of the voting stock issued and outstanding to sell, lease or exchange all or
substantially all of the property and assets of the corporation, including its
good will and its corporate franchises, upon such terms and conditions and for
such consideration, which may consist in whole or in part of money or property
including shares of stock in, and/or other securities of, any other corporation
or corporations, as its board of directors shall deem expedient and for the best
interests of the corporation.
EIGHTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
NINTH. Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation. Elections of directors
need not be by written ballot unless the by-laws of the corporation shall so
provide.
TENTH. The corporation reserves the right to amend, alter, change, or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute or by this certificate of
incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
5
<PAGE> 6
Whenever the vote of stockholders at a meeting thereof is required or
permitted by law to be taken for or in connection with any corporate action,
such corporate action may be taken upon the written consent of the holders of a
majority of the stock which would have been entitled to vote upon such action if
a meeting were held.
ELEVENTH. The affirmative vote of the holders of not less than 80
percent of the outstanding shares of "Voting Stock" (as hereinafter defined) of
the corporation shall be required for the approval or authorization of any
"Business Combination" (as hereinafter defined) of the corporation with any
"Related Person" (as hereinafter defined); provided, however, that the 80
percent voting requirement shall not be applicable if:
(1) The "Continuing Directors" of the corporation (as
hereinafter defined) by a two-thirds vote, (a) have determined that the
80% percent voting requirement of this provision shall not be
applicable, or (b) have approved the Business Combination;
(2) The Business Combination is solely between the corporation
and another corporation, one hundred percent of the Voting Stock
(except for directors' qualifying shares) of which is owned directly or
indirectly by the corporation; or
(3) The Business Combination is a merger or consolidation and
the cash or fair market value of each of the property, securities or
other consideration to be received per share (with appropriate
adjustments for recapitalizations and for stock splits, stock dividends
and like distributions) by holders of common stock of the corporation
in the Business Combination is not less than the highest per share
price (including brokerage commissions, soliciting dealers' fees,
dealer-management compensation, and other expenses, including, but not
limited to, costs of newspaper advertisements, printing expenses and
attorneys' fees), paid by the Related Person in acquiring any of its
holdings of the corporation's common stock.
For the purposes of this Article ELEVENTH:
(i) The term "Business Combination" shall mean (a) any merger
or consolidation of the corporation or a subsidiary with or into a
Related Person, (b) any sale, lease, exchange, transfer or other
disposition, including without limitation the creation of a mortgage or
any other security device of all or any "Substantial Part" (as
hereinafter defined) of assets either of the corporation (including
without limitation any voting securities of a subsidiary) or of a
subsidiary, to a Related Person, (c) any merger or consolidation of a
Related Person with or into the corporation or a subsidiary of the
corporation, (d) any sale, lease, exchange, transfer, or other
disposition of all or any Substantial Part of the assets of a Related
Person to the corporation or a subsidiary of the corporation, (e) the
issuance of any securities of the corporation or a subsidiary of the
corporation to a Related Person, (f) any recapitalization that would
have the effect of increasing the voting power of a Related Person, (g)
the acquisition by the corporation or a subsidiary of the corporation
of any securities of a Related Person, (h) the adoption of any plan or
proposal for the liquidation or dissolution of this corporation
6
<PAGE> 7
if, as of the record date for the determination of shareholders
entitled to notice thereof and to vote thereon, any person shall be a
Related Person and (i) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination.
(ii) The term "Related Person" shall mean and include any
individual, corporation, partnership or other person including the
definition of a person as contained in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), or entity
(collectively, a "Person") which together with its "Affiliates" and
"Associates" (as defined at Rule 12b-2 under the Exchange Act),
"Beneficially Owns" (as defined at Rule 13d-3 under the Exchange Act)
in the aggregate 20 percent or more of the outstanding Voting Stock of
the corporation, and any Affiliate or Associate of any such individual,
corporation, partnership or other person or entity.
(iii) The term "Substantial Part" shall mean more than 30
percent of the fair market value of the total assets of the corporation
in question, as of the end of its most recent fiscal year ending prior
to the time the determination is being made.
(iv) Without limitation, any shares of common stock of the
corporation that any Related Person has the right to acquire pursuant
to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, shall be deemed beneficially owned by the
Related Person.
(v) For the purposes of subparagraph (3) of this Article
ELEVENTH, the term "other consideration to be received" shall include,
without limitation, common stock of the corporation retained by its
existing public stockholders in the event of a Business Combination in
which the corporation is the surviving corporation.
(vi) The term "Voting Stock" shall mean all outstanding shares
of capital stock of the corporation or another corporation entitled to
vote generally in the election of directors and each reference to a
proportion of shares of Voting Stock shall refer to such proportion of
the votes entitled to be cast by such shares.
(vii) With respect to any proposed Business Combination, the
term "Continuing Director" shall mean (i) any director who was a member
of the Board of Directors of the corporation on January 21, 1983, or
(ii) any director who was a member of the Board of Directors of the
corporation immediately prior to the date, if such date is after
January 21, 1983, that any Related Person involved in the proposed
Business Combination became a Related Person (or, if the transaction
involves more than one Related Person, immediately prior to the date,
if such date is after January 21, 1983, the first of such Persons to
become a Related Person became a Related Person).
7
<PAGE> 8
The provisions set forth in this Article ELEVENTH (including the
provisions set forth in this paragraph) may not be repealed or amended in any
respect, unless such action is approved by the affirmative vote of the holders
of not less than 80 percent of the outstanding shares of Voting Stock of the
corporation.
TWELFTH. The Board of Directors (exclusive of Directors to be elected
by the holders of any one or more series of Preferred Stock voting separately as
a class or classes) shall be divided into three classes, Class I, Class II, and
Class III, which shall be as nearly equal in number as possible. Each director
shall serve for a term ending on the date of the third annual meeting following
the annual meeting at which such director was elected; provided, however, that
each initial director in Class I shall hold office until the annual meeting of
stockholders in 1984; each initial director in Class II shall hold office until
the annual meeting of stockholders in 1985; and each initial director in Class
III shall hold office until the annual meeting of stockholders in 1986.
The Directors whose names and mailing addresses are shown below are
hereby designated initial members of the classes indicated, to serve as
Directors in such classes until the appropriate annual meeting of stockholders,
as indicated in the paragraph immediately preceding or until their successors
are elected and qualified:
<TABLE>
<CAPTION>
CLASS I
NAME: ADDRESS:
---- -------
<S> <C>
Edward A. Wardwell............................ 10575 Katy Freeway, Suite 400
Houston, Texas 77024
D. Michael Hughes............................. P.O. Box 530
Ingram, Texas 78025
E.C. Broun, Jr................................ 6500 Texas Commerce Tower
Houston, Texas 77002
CLASS II
Bruce C. Gilman............................... 10575 Katy Freeway, Suite 400
Houston, Texas 77024
Charles B. Evans.............................. 16854 Little Tujunga Canyon Road
San Fernando, California 91342
Robert H. Etnyre.............................. 12223 Kimberley
Houston, Texas 77024
CLASS III
J. Wesley Rogers.............................. 10575 Katy Freeway, Suite 400
Houston, Texas 77024
David S. Hooker............................... 29 Smith Terrace
London SW3 England
Stephen E. Halprin............................ 3000 Sand Hill Road
Menlo Park, California 94025
</TABLE>
8
<PAGE> 9
Any vacancies in the Board of Directors for any reason, and any newly
created directorships resulting from any increase in the number of directors,
may, except as otherwise required by law, be filled only by the Board of
Directors, acting by a majority of the Directors then in office, although less
than a quorum, and any Directors so chosen shall hold office until the next
election of the class for which such Directors shall have been chosen and until
their successors shall be elected and qualified. No decrease in the number of
Directors shall shorten the term of any incumbent Director and Directors may be
removed only for cause. Notwithstanding the foregoing, and except as otherwise
required by law, whenever the holders of any one or more series of Preferred
Stock shall have the right, voting separately as a class, to elect one or more
Directors of the Company, the terms of the Director or Directors elected by such
holders shall expire at the next succeeding annual meeting of stockholders.
The provisions set forth in the Article TWELFTH (including the
provisions set forth in this paragraph) may not be repealed or amended in any
respect, unless such action is approved by the affirmative vote of the holders
of not less than 80 percent of the outstanding shares of the Company's common
stock.
THIRTEENTH. No director of the corporation shall be personally liable
to the corporation or any of its stockholders for monetary damages resulting
from a breach of fiduciary duty involving any act or omission of any such
director occurring on or after August 15, 1986; provided, however, that the
foregoing provision shall not eliminate or limit the liability of any director
(i) for any breach of such director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Title 8,
section 174 of the Delaware Code or (iv) for any transaction from which such
director derived an improper personal benefit.
IN WITNESS WHEREOF, the corporation has caused this Restated
Certificate of Incorporation to be executed this 18th day of August, 2000.
OCEANEERING INTERNATIONAL, INC.
By: /s/ JOHN R. HUFF
--------------------------
John R. Huff
Chairman of the Board and
Chief Executive Officer
9
<PAGE> 10
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
of
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
of
OCEANEERING INTERNATIONAL, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, John R. Huff, President and Chief Executive Officer, and
George R. Haubenreich, Jr., Secretary, of Oceaneering International, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority vested in the Board of
Directors in accordance with the provisions of the Certificate of Incorporation,
as amended, of the said Corporation, the said Board of Directors on November 20,
1992, adopted the following resolution creating a series of 900,000 shares of
Preferred Stock designated as "Series B Junior Participating Preferred Stock":
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporation in accordance with the provisions of
the Certificate of Incorporation, a series of Preferred Stock, par
value $1.00 per share, of the Corporation be and hereby is created, and
that the designation and number of shares thereof and the voting and
other powers, preferences and relative, participating, optional or
other rights of the shares of such series and the qualifications,
limitations and restrictions thereof are as follows:
1. Designation and Amount. There shall be a series of
Preferred Stock that shall be designated as "Series B Junior Participating
Preferred Stock," and the number of shares constituting such series shall be
900,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, however, that no decrease shall reduce the
number of shares of Series B Junior Participating Preferred Stock to less than
the number of shares then issued and outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Corporation.
A-1
<PAGE> 11
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series B Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series B Junior Participating Preferred
Stock, in preference to the holders of shares of any class or series of stock of
the Corporation ranking junior to the Series B Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
the 15th day of October, January, April and July in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series B Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00
or (b) subject to the provision for adjustment hereinafter set forth, the
Adjustment Number (as defined below) times the aggregate per share amount of all
cash dividends, and the Adjustment Number 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, par value $.25 per share, of the Corporation (the "Common Stock")
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series B Junior Participating Preferred
Stock. The "Adjustment Number" shall initially be 100. In the event the
Corporation shall at any time after November 20, 1992 (the "Rights Declaration
Date") (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series B Junior Participating Preferred Stock as provided in paragraph
(A) above immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock); provided that,
in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
Series B Junior Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Junior Participating Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of such shares
of Series B Junior Participating Preferred Stock, 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 Series B Junior Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either of
which
A-2
<PAGE> 12
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series B Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series B Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series B Junior
Participating Preferred Stock shall have the following voting rights:
(A) Each share of Series B Junior Participating Preferred
Stock shall entitle the holder thereof to a number of votes equal to the
Adjustment Number on all matters submitted to a vote of the stockholders of the
Corporation.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series B Junior Participating 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)(i) If at any time dividends on any Series B Junior
Participating Preferred Stock shall be in arrears in an amount equal to six
quarterly dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") that shall extend until
such time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all shares of
Series B Junior Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period, all
holders of Preferred Stock (including holders of the Series B Junior
Participating Preferred Stock) upon which these or like voting rights have been
conferred and are exercisable (the "Voting Preferred Stock") with dividends in
arrears in an amount equal to six quarterly dividends thereon, voting as a
class, irrespective of series, shall have the right to elect two Directors.
(ii) During any default period, such voting right of the
holders of Series B Junior Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of stockholders, and thereafter at annual
meetings of stockholders, provided that neither such voting right nor the right
of the holders of any other series of Voting Preferred Stock, if any, to
increase, in certain cases, the authorized number of Directors shall be
exercised unless the holders of ten percent in number of shares of Voting
Preferred Stock outstanding shall be present in person or by proxy. The absence
of a quorum of the holders of Common Stock shall not affect the exercise by the
holders of Voting Preferred Stock of such voting right. At any meeting at which
the holders of Voting Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the right, voting as a class,
to elect Directors to fill such vacancies, if any, in the Board of Directors as
may then exist up to two Directors or, if such right is exercised at an annual
meeting, to elect two Directors. If the number that may be so elected at any
special meeting does not amount to the required number, the holders of the
Voting Preferred Stock shall have the right to make such increase in the number
of Directors as shall be necessary to permit the election by them of the
required number. After the holders of the Voting
A-3
<PAGE> 13
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders of
Voting Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series B Junior
Participating Preferred Stock.
(iii) Unless the holders of Voting Preferred Stock shall,
during an existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent of the total
number of shares of Voting Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the holders of Voting Preferred
Stock, which meeting shall thereupon be called by the Chairman of the Board, the
President, a Vice President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Voting Preferred Stock are
entitled to vote pursuant to this paragraph (C)(iii) shall be given to each
holder of record of Voting Preferred Stock by mailing a copy of such notice to
him at his last address as the same appears on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20 days and not later
than 60 days after such order or request or, in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in the aggregate not
less than ten percent of the total number of shares of Voting Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Voting
Preferred Stock shall have exercised their right to elect two Directors voting
as a class, after the exercise of which right (x) the Directors so elected by
the holders of Voting Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the expiration of
the default period, and (y) any vacancy in the Board of Directors may (except as
provided in paragraph (C)(ii) of this Section 3) be filled by vote of a majority
of the remaining Directors theretofore elected by the holders of the class of
stock which elected the Director whose office shall have become vacant.
References in this paragraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Voting Preferred Stock as a class to elect Directors
shall cease, (y) the term of any Directors elected by the holders of Voting
Preferred Stock as a class shall terminate and (z) the number of Directors shall
be such number as may be provided for in the Certificate of Incorporation or
By-Laws irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject, however, to
change thereafter in any manner provided by law or in the Certificate of
Incorporation or By-Laws). Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding sentence may be filled by
a majority of the remaining Directors.
A-4
<PAGE> 14
(D) Except as set forth herein, holders of Series B Junior
Participating 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.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Junior Participating Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
B Junior Participating Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
B Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series B Junior Participating Preferred Stock, except dividends paid
ratably on the Series B Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series B Junior Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock of
the Corporation ranking junior (both as to dividends and upon
dissolution, liquidation or winding up) to the Series B Junior
Participating Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with the Series B
Junior Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
A-5
<PAGE> 15
5. Reacquired Shares. Any shares of Series B Junior
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series B Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series B Liquidation Preference"). Following the payment of
the full amount of the Series B Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series B Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series B Liquidation
Preference by (ii) the Adjustment Number. Following the payment of the full
amount of the Series B Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series B Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series B Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed in the
ratio of the Adjustment Number to 1 with respect to such Preferred Stock and
Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series B Liquidation
Preference and the liquidation preferences of all other series of Preferred
Stock, if any, that rank on a parity with the Series B Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
7. 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 the shares of
Series B Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the Adjustment
Number 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.
8. Redemption. (A) The Corporation, at its option, may redeem
shares of the Series B Junior Participating Preferred Stock in whole at any time
and in part from time to time, at a redemption price equal to the Adjustment
Number times the current per share market price (as such term is hereinafter
defined) of the Common Stock on the date of the mailing of the notice of
redemption, together with unpaid accumulated dividends to the date of such
redemption. The
A-6
<PAGE> 16
"current per share market price" on any date shall be deemed to be the average
of the closing price per share of such Common Stock for the ten consecutive
Trading Days (as such term is hereinafter defined) immediately prior to such
date; provided, however, that in the event that the current per share market
price of the Common Stock is determined during a period following the
announcement of (A) a dividend or distribution on the Common Stock other than a
regular quarterly cash dividend or (B) any subdivision, combination or
reclassification of such Common Stock and the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, shall not have occurred prior to the commencement of such ten
Trading Day period, then, and in each such case, the current per share market
price shall be properly adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sales 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 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 sales 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 or such other self-regulatory
organization or registered securities information processor (as such terms are
used under the Securities Exchange Act of 1934, as amended) that then reports
information concerning the Common Stock or, if on any such date the Common Stock
is not quoted by any such entity, 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 of the Corporation. If on any such date
no such market maker is making a market in the Common Stock, the fair value of
the Common Stock on such date as determined in good faith by the Board of
Directors of the Corporation shall be used. The term "Trading Day" shall mean 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, a Monday, Tuesday, Wednesday, Thursday or Friday on which
banking institutions in the State of New York are not authorized or obligated by
law or executive order to close.
(B) In the event that fewer than all the outstanding shares of
the Series B Junior Participating Preferred Stock are to be redeemed, the number
of shares to be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors or by any other method that may be
determined by the Board of Directors in its sole discretion to be equitable.
(C) Notice of any such redemption shall be given by mailing to
the holders of the shares of Series B Junior Participating Preferred Stock to be
redeemed a notice of such redemption, first class postage prepaid, not later
than the fifteenth day and not earlier than the sixtieth day before the date
fixed for redemption, at their last address as the same shall appear upon the
books of the Corporation. Each such notice shall state: (i) the redemption date;
(ii) the number of shares to be redeemed and, if fewer than all the shares held
by such holder are to be redeemed, the number of such shares to be redeemed from
such holder; (iii) the redemption price; (iv) the place or places where
A-7
<PAGE> 17
certificates for such shares are to be surrendered for payment of the redemption
price; and (v) that dividends on the shares to be redeemed will cease to accrue
on the close of business on such redemption date. Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the stockholder received such notice, and failure duly to
give such notice by mail, or any defect in such notice, to any holder of Series
B Junior Participating Preferred Stock shall not affect the validity of the
proceedings for the redemption of any other shares of Series B Junior
Participating Preferred Stock that are to be redeemed. On or after the date
fixed for redemption as stated in such notice, each holder of the shares called
for redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price. If fewer than all the
shares represented by any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(D) The shares of Series B Junior Participating Preferred
Stock shall not be subject to the operation of any purchase, retirement or
sinking fund.
9. Ranking. The Series B Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's Preferred Stock as to
the payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
10. Amendment. At any time that any shares of Series B Junior
Participating Preferred Stock are outstanding, the Certificate of Incorporation,
as amended, of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series B Junior Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more of the
outstanding shares of Series B Junior Participating Preferred Stock, voting
separately as a class.
11. Fractional Shares. Series B Junior Participating Preferred
Stock may be issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series B Junior Participating Preferred Stock.
A-8
