EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
MASCOTECH, INC.
* * * * *
1. The name of the corporation is:
MascoTech, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle 19801. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purpose to be conducted or promoted is to
engage in any lawful act or activity for which corporations may now or hereafter
be organized under the General Corporation Law of the State of Delaware (the
"Delaware General Corporation Law").
4. The total number of shares of stock the corporation shall have authority
to issue is two hundred seventy-five million (275,000,000) shares. Two hundred
fifty million (250,000,000) of such shares shall consist of common shares, par
value one dollar ($1.00) per share, and twenty-five million (25,000,000) of such
shares shall consist of preferred shares, par value one dollar ($1.00) per
share. The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
A. Each share of common stock shall be equal in all respects to all
other shares of such stock, and each share of outstanding common stock is
entitled to one vote.
B. Each share of preferred stock shall have or not have voting rights
as determined by the Board of Directors prior to issuance.
The Board of Directors shall have authority to divide the shares of
preferred stock into series and fix, from time to time before issuance, the
number of shares to be included in any series and the designation, relative
participating, optional or other rights, powers, preferences,
qualifications, restrictions and limitations of all shares of such series.
The authority of the Board of Directors with respect to each series shall
include, without limitation, the determination of any or all of the
following, and the shares of each series may vary from the shares of any
other in the following respects: (a) the number of shares constituting such
series and the designation thereof to distinguish the shares of such series
from the shares of any other series; (b) the rate of dividend, cumulative
or noncumulative, and the extent of further participation in dividend
distribution, if any; (c) the terms and conditions upon which the shares
may be redeemable by the Company; (d) sinking fund provisions for the
redemption or purchase of shares, if any; (e) the voting rights; and (f)
the terms and conditions upon which the
<PAGE>
-2-
shares are convertible into other classes of stock of the Company, if such
shares are to be convertible.
C. Terms of Series A Preferred Stock.
(1) DESIGNATION. Three hundred seventy thousand (370,000) shares of
Preferred Stock, par value one dollar ($1.00) per share, shall be
designated "Series A Preferred Stock." The Series A Preferred Stock shall
have the following rights, terms and privileges set forth in subsections
(2) through (10) below.
(2) DIVIDENDS ON SERIES A PREFERRED STOCK. (a) The holders of the
Series A Preferred Stock shall be entitled to receive, when, as and if
declared by the Company's Board of Directors, out of the funds of the
Company legally available therefor pursuant to the Delaware General
Corporation Law (the "Legally Available Funds"), cumulative dividends on
each share of Series A Preferred Stock for each Quarterly Dividend Period
(as hereinafter defined) equal to the Liquidation Preference (as
hereinafter defined) of each such share multiplied by a rate (with respect
to the Series A Preferred Stock, the "Quarterly Dividend Rate") equal to
(1) 13% per annum for periods ending on or prior to December 31, 2005 and
(2) 15% per annum for periods thereafter, plus, in either case, 2% per
annum for any period for which there are any accrued and unpaid dividends.
Such dividends shall be cumulative from the date of original issue of such
shares. Accrued and unpaid dividends on the Series A Preferred Stock shall
accrue additional dividends in respect thereof (with respect to the Series
A Preferred Stock, the "Additional Dividends"), compounded quarterly, at
the Quarterly Dividend Rate then applicable to the Series A Preferred
Stock. Each such dividend shall be paid to the holders of record of shares
of Series A Preferred Stock as they appear on the stock register of the
Company on such record date as shall be fixed by the Board of Directors of
the Company or a duly authorized committee thereof, which date shall be not
more than 30 days nor less than 10 days preceding the dividend payment date
relating thereto.
(b) If dividends (including Additional Dividends) are not paid in full
or declared in full and sums are not set apart for the payment thereof upon
the Series A Preferred Stock and any other Parity Securities (as
hereinafter defined), all dividends declared upon shares of Series A
Preferred Stock and any other Parity Securities shall be declared pro rata
so that in all cases the amount of dividends declared per share on the
Series A Preferred Stock and such other Parity Security shall bear to each
other the same ratio that accumulated dividends per share, including
dividends accrued or in arrears, if any, on the shares of Series A
Preferred Stock and such other Parity Security shall bear to each other;
provided that no dividends shall be declared on any Parity Security if the
Series A Preferred Stock is in arrearage unless the number of Quarterly
Dividend Periods for which the Series A Preferred Stock is in arrears does
not exceed the number of quarterly periods for which such Parity Security
is in arrearage immediately prior to the making of the such pro rata
dividends.
(c) Dividends (including Additional Dividends) payable on the Series A
Preferred Stock for any period less than a full Quarterly Dividend Period
shall be computed on
<PAGE>
-3-
the basis of a 360-day year of twelve 30-day months and the actual number
of days elapsed in the period for which payable.
(d) "Quarterly Dividend Period" means, with respect to the Series A
Preferred Stock, the period from January 1 through the next March 31, from
April 1 through the next June 30, from July 1 through the next September
30, or from October 1 through the next December 31, as the case may be;
provided that the first Quarterly Dividend Period shall mean the period
commencing the day shares of Series A Preferred Stock are originally issued
and ending on March 31, 2001.
(e) "Business Day" means, with respect to the Series A Preferred
Stock, any day other than a Saturday, a Sunday or any day on which banking
institutions in the State of New York or the New York Stock Exchange is
closed.
(3) REDEMPTION OF SERIES A PREFERRED STOCK.
(a) Mandatory Redemption. The Company shall redeem, out of Legally
Available Funds, on December 31, 2012 all then outstanding shares of Series
A Preferred Stock at a redemption price of 100% of the Liquidation
Preference (as hereinafter defined). Immediately prior to authorizing or
making any such redemption with respect to the Series A Preferred Stock,
the Company, by resolution of its Board of Directors, shall, to the extent
of any Legally Available Funds, declare a dividend on the Series A
Preferred Stock payable on the redemption date in an amount equal to any
accrued and unpaid dividends (including Additional Dividends) on the Series
A Preferred Stock as of such date and, if the Company does not have
sufficient Legally Available Funds to declare and pay all dividends
(including Additional Dividends) accrued at the time of such redemption,
any remaining accrued and unpaid dividends (including Additional Dividends)
shall be added to the redemption price. If the Company shall fail to
discharge its obligation to redeem all of the outstanding shares of Series
A Preferred Stock required to be redeemed pursuant to this subsection (3)
(the "Series A Mandatory Redemption Obligation"), the Series A Mandatory
Redemption Obligation shall be discharged as soon as the Company is able to
discharge such Series A Mandatory Redemption Obligation and the Voting
Period set forth in subsection (7) will apply in accordance with its terms,
without otherwise affecting the Company's obligations hereunder.
(b) Optional Redemption. The Series A Preferred Stock shall be
redeemable, in whole or in part, out of Legally Available Funds, at the
option of the Company by resolution of its Board of Directors, at a
redemption price of 101% of the Liquidation Preference (as hereinafter
defined) at any time after December 31, 2005, upon giving notice as
provided in paragraph (c) below; provided that, notwithstanding the
foregoing, the Company may exercise the foregoing redemption right on or
prior to December 31, 2005 using the net proceeds from any issuance of
shares of capital stock of the Company. Immediately prior to authorizing or
making any such redemption with respect to the Series A Preferred Stock,
the Company by resolution of its Board of Directors shall, to the extent of
any Legally Available Funds, declare a dividend on the Series A Preferred
Stock payable on the redemption date in an amount equal to any accrued and
unpaid dividends (including Additional Dividends) on the Series A
<PAGE>
-4-
Preferred Stock as of such date and if the Company does not have sufficient
Legally Available Funds to declare and pay all dividends (including
Additional Dividends) accrued at the time of such redemption, any remaining
accrued and unpaid dividends (including Additional Dividends) shall be
added to the redemption price. Notwithstanding the provisions of this
paragraph (b) or of subsection (9), unless the full cumulative dividends
(including Additional Dividends) on all outstanding shares of Series A
Preferred Stock shall have been paid or contemporaneously are declared and
paid for all past dividend periods, none of the shares of Series A
Preferred Stock shall be redeemed unless all outstanding shares of Series A
Preferred Stock are simultaneously redeemed.
(c) Notice of Redemption. At least 30 days but not more than 60 days
prior to the date fixed for the redemption of shares of the Series A
Preferred Stock pursuant to paragraph (a) or (b) above, a written notice
shall be mailed to each holder of record of shares of Series A Preferred
Stock to be redeemed in a postage prepaid envelope addressed to such holder
at his post office address as shown on the records of the Company,
notifying such holder of the election of the Company to redeem such shares,
stating the date fixed for redemption thereof (hereinafter referred to as
the redemption date) and calling upon such holder to surrender to the
Company on the redemption date at the place designated in such notice his
certificate or certificates representing the number of shares specified in
such notice of redemption. On or after the redemption date each holder of
shares of Series A Preferred Stock to be redeemed shall present and
surrender his certificate or certificates for such shares to the Company at
the place designated in such notice and thereupon the redemption price of
such shares shall be paid to or on the order of the person whose name
appears on such certificate or certificates as the owner thereof and each
surrendered certificate shall be canceled. In case less than all the shares
represented by such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares. From and after the redemption
date (unless default shall be made by the Company in payment of the
redemption price) all dividends on the shares of Series A Preferred Stock
designated for redemption in such notice shall cease to accrue and all
rights of the holders thereof as stockholders of the Company, except the
right to receive the redemption price thereof (including an amount equal to
all accrued and unpaid dividends up to the redemption date) upon the
surrender of certificates representing the same, shall cease and terminate
and such shares shall not thereafter be transferred (except with the
consent of the Company) on the books of the Company and such shares shall
not be deemed to be outstanding for any purpose whatsoever. At its
election, the Company prior to the redemption date may deposit the
redemption price (including an amount equal to all accrued and unpaid
dividends up to the redemption date) of the shares of Series A Preferred
Stock so called for redemption in trust for the holders thereof with a bank
or trust company in the Borough of Manhattan, City and State of New York,
in which case such notice to holders of the Series A Preferred Stock to be
redeemed shall state the date of such deposit, shall specify the office of
such bank or trust company as the place of payment of the redemption price
and shall call upon such holders to surrender the certificates representing
such shares at such price on or after the date fixed in such redemption
notice (which shall not be later than the redemption date) against payment
of the redemption price (including all accrued and unpaid dividends up to
the redemption date). From and after the making of such deposit, the shares
of Series A Preferred Stock so designated for redemption shall not be
deemed to be outstanding
<PAGE>
-5-
for any purpose whatsoever and the rights of the holders of such shares
shall be limited to the right to receive the redemption price of such
shares (including all accrued and unpaid dividends up to the redemption
date), without interest, upon surrender of the certificates representing
the same to the Company at said office of such bank or trust company. Any
interest accrued on such funds shall be paid to the Company from time to
time. Any moneys so deposited which shall remain unclaimed by the holders
of such Series A Preferred Stock at the end of six months after the
redemption date shall be returned by such bank or trust company to the
Company, after which the holders of the Series A Preferred Stock shall have
no further interest in such moneys, except as unsecured claimants of the
Company.
(d) Reissuances. Shares of Series A Preferred Stock which have been
issued and reacquired in any manner, including shares purchased or redeemed
or exchanged, shall be cancelled and retired and shall not be reissued as
shares of Series A Preferred Stock and, following any required filing with
the Delaware Secretary of State, such shares shall resume the status of
authorized but unissued shares of preferred stock.
(e) Selection of Shares to be Redeemed. If less than all of the shares
of Series A Preferred Stock are to be redeemed, the Board of Directors of
the Company shall allocate the total liquidation preference to be redeemed
pro rata.
(4) CHANGE IN CONTROL. (a) If a Change in Control (as hereinafter
defined) shall occur at any time, then each holder of Series A Preferred
Stock shall have the right to require that the Company purchase such
holder's Series A Preferred Stock, in whole or in part, out of Legally
Available Funds at a cash purchase price (a "Change in Control Payment") in
an amount equal to 101% of the Liquidation Preference, plus accrued and
unpaid dividends, if any, to the date of purchase, pursuant to the offer
described below (the "Change in Control Offer") and the other procedures
set forth herein.
(b) Within the time period specified in subsection (4)(d) below, the
Company will mail a notice to each holder of Series A Preferred Stock, with
the following information: (i) a Change in Control Offer is being made
pursuant to this subsection (4) and that all Series A Preferred Stock
properly tendered pursuant to such Change in Control Offer will be accepted
for payment; (ii) the purchase price and the purchase date, which will be
no earlier than 30 days nor later than 60 days from the date such notice is
mailed, except as may be otherwise required by applicable law (the "Change
in Control Payment Date"); (iii) any Series A Preferred Stock not properly
tendered will remain outstanding and continue to accrue dividends; (iv)
unless the Company defaults in making the Change in Control Payment, all
Series A Preferred Stock accepted for payment pursuant to the Change in
Control Offer will cease to accumulate dividends on the Change in Control
Payment Date; (v) holders of Series A Preferred Stock electing to have any
shares of Series A Preferred Stock purchased pursuant to a Change in
Control Offer will be required to surrender such shares, properly endorsed
for transfer, to the transfer agent for the Series A Preferred Stock at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Change in Control Payment Date; (vi) holders of
Series A Preferred Stock will be entitled to withdraw their tendered shares
of Series A Preferred Stock and their election to require the Company to
pur-
<PAGE>
-6-
chase such shares, provided that the transfer agent receives, not later
than the close of business on the last day of the offer period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder of Series A Preferred Stock, the number of shares of Series A
Preferred Stock tendered for purchase, and a statement that such holder is
withdrawing his tendered shares of Series A Preferred Stock and his
election to have such shares of Series A Preferred Stock purchased; and
(vii) that holders whose shares of Series A Preferred Stock are being
purchased only in part will be issued new shares of Series A Preferred
Stock equal in number to the unpurchased portion of the shares of Series A
Preferred Stock surrendered.
(c) On the Change in Control Payment Date, the Company shall, to the
extent permitted by law, (i) accept for payment all shares of Series A
Preferred Stock properly tendered pursuant to the Change in Control Offer,
(ii) deposit with the transfer agent for the Series A Preferred Stock an
amount in cash equal to the aggregate Change in Control Payment in respect
of all shares of Series A Preferred Stock so tendered and (iii) deliver, or
cause to be delivered, to such transfer agent for cancellation the shares
of Series A Preferred Stock so accepted. The Company shall promptly mail,
or cause to be mailed, to each holder of Series A Preferred Stock the
Change in Control Payment for such Series A Preferred Stock, and new shares
of Series A Preferred Stock equal in aggregate liquidation preference to
any unpurchased portion of Series A Preferred Stock surrendered, if any.
The Company shall publicly announce the results of the Change in Control
Offer on or as soon as practicable after the Change in Control Payment
Date. The Company may act as transfer agent for the Series A Preferred
Stock.
(d) The Company shall mail the notice referred to in subsection (4)(b)
above not later than 60 days after learning of a Change in Control
specified in clause (e)(1) or (2) below or not more than 60 days after an
occurrence specified in clause (e)(3) or (4) (except to the extent the
occurrence referred to in clause (e)(4) would otherwise have occurred under
clause (e)(1) or (2) below) (such 60th day being the "Notice Trigger
Date"). Prior to making a Change in Control Offer, but in any event not
later than the Notice Trigger Date, the Company covenants to (i) repay in
full all indebtedness under agreements containing change of control puts or
defaults (and terminate all commitments thereunder) or offer to repay in
full all such indebtedness (and terminate all commitments) and to repay the
indebtedness owed to (and terminate the commitments of) each creditor which
has accepted such offer or (ii) obtain the requisite consents in respect of
such indebtedness to permit the purchase of the Series A Preferred Stock.
The Company will first comply with the covenant in the preceding sentence
before it will be required to repurchase Series A Preferred Stock pursuant
to the provisions described below; provided that the Company's failure to
comply with the covenant described in the preceding sentence shall give
rise to a Voting Period under subsection (7) below, without otherwise
affecting the Company's obligations hereunder.
(e) The occurrence of any of the following events will constitute a
"Change in Control":
<PAGE>
-7-
(1) if Heartland Industrial Partners, L.P. and its Affiliates
(collectively "Heartland") (i) cease to directly or indirectly beneficially
own 40% or more of the number of shares of common stock of the Company
received by them in the merger (appropriately adjusted for stock splits,
combinations, subdivisions, stock dividends and similar events) provided
for under the Recapitalization Agreement dated as of August 1, 2000 between
the Company and Riverside Company LLC (the "Recapitalization Agreement")
(after taking account of any commitments or agreements in principle
existing prior to such merger for Heartland to sell some of its shares of
common stock of the Company following such merger) or (ii) do not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company
or (iii) cease to, directly or indirectly, beneficially own 30% or more of
the outstanding shares of the Company's common stock, provided that this
clause (iii) shall only be operative as long as Masco Corporation or its
controlled affiliates own a majority of the then outstanding shares of
Series A Preferred Stock in order to amend (in its sole discretion) this
Certificate of Incorporation; provided that the foregoing subclauses (ii)
and (iii) will not be operative after any underwritten public offering of
common stock of the Company;
(2) any person or group within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 (the "1934 Act") other than Heartland (an "
other entity") shall attain beneficial ownership, within the meaning of
Rule 13d-3 adopted under the 1934 Act, of capital stock representing a
majority of the voting power for the election of the Directors of the
Company;
(3) the Company, directly or indirectly, consolidates or merges with
any other entity or sells or leases it properties and assets substantially
as an entirety to any other entity, provided that this clause shall not
apply to a transaction if, immediately following such transaction, no
person or group, within the meaning of Section 13(d)(3) of the 1934 Act,
other than Heartland, beneficially owns capital stock representing a
majority of the voting power for the election of Directors of the Company;
and
(4) any event constituting a "change of control" in the Company's
Senior Credit Facilities. As used herein, "Senior Credit Facilities" means
the Credit Agreement, to be dated as of the date of the Merger (as defined
under the Recapitalization Agreement dated August 1, 2000 between the
Company and Riverside Company LLC), among The Chase Manhattan Bank, Chase
Securities Inc., the Company and certain of its subsidiaries and the other
lenders and financial institutions party thereto from time to time, as the
same may be amended, modified, waived, refinanced or replaced from time to
time (whether under a new credit agreement or otherwise).
(5) QUALIFYING EQUITY. In the event of an Equity Offering Triggering
Event (as hereinafter defined), each holder of Series A Preferred Stock
shall have the right to require that the Company purchase each such
holder's Series A Preferred Stock, in whole or in part, out of Legally
Available Funds at a cash purchase price (a "Qualifying Equity Pay-
<PAGE>
-8-
ment") in an amount equal to 101% of the Series A Liquidation Preference,
plus accumulated and unpaid dividends, if any, to the date of purchase, but
only to the extent of the Excess Proceeds (as hereinafter defined) received
by the Company in the case of an Equity Offering Triggering Event referred
to in clause (x) of the definition thereof or out of the net proceeds
received by the Company from any Subsequent Offering (the "Subsequent
Offering Proceeds"), in the case of an Equity Offering Triggering Event
referred to in clause (y) of the definition thereof, pursuant to the offer
described below (the "Qualifying Equity Proceeds Offer") and the other
procedures set forth herein. As used herein, "Equity Offering Triggering
Event" means either (x) one or more underwritten public offerings of common
stock of the Company for gross proceeds to the Company of $200.0 million or
more and to the extent that there are net proceeds to the Company in excess
of amounts required to finance any proposed or contemplated Acquisition (as
hereinafter defined) as determined in good faith by the Board of Directors
(such determination of the Board of Directors of the Company shall be
conclusive), whether or not publicly announced, or refinance, refund or
replace any debt or preferred stock, incurred, issued or assumed in
connection with any Acquisition ("Excess Proceeds") (the first or more
recent of such offerings being referred to as a "Qualifying Equity
Offering") or (y) the occurrence of (i) an underwritten initial public
offering of common stock of the Company and (ii) the occurrence of any
subsequent underwritten primary public offering of common stock of the
Company (a "Subsequent Offering"), provided that the aggregate proceeds to
the Company from such offerings under this clause (y) is $400.0 million or
more (the "Gross Proceeds Condition") (such Subsequent Offering is also
referred to as a "Qualifying Equity Offering" to the extent the Gross
Proceeds Condition is satisfied). Once a Qualifying Equity Proceeds Offer
is made with respect to any and all outstanding shares of Series A
Preferred Stock, no further Qualifying Equity Proceeds Offer need be made.
Within 30 days following any Qualifying Equity Offering, the Company
will mail a notice to each holder of Series A Preferred Stock to the extent
of the Excess Proceeds or Subsequent Offering Proceeds, as the case may be,
with the following information: (i) A Qualifying Equity Proceeds Offer is
being made pursuant to this subsection (5), and that all Series A Preferred
Stock properly tendered pursuant to such Qualifying Equity Proceeds Offer
will be accepted for payment on a pro rata basis (or as nearly a pro rata
basis as practicable) to the extent of the Excess Proceeds or Subsequent
Offering Proceeds, as the case may be; (ii) the purchase price and the
purchase date, which will be no earlier than 30 days nor later than 60 days
from the date such notice is mailed, except as may be otherwise required by
applicable law (the "Qualifying Equity Payment Date"); (iii) any Series A
Preferred Stock not properly tendered will remain outstanding and continue
to accumulate dividends; (iv) unless the Company defaults in the payment of
the Qualifying Equity Payment, all Series A Preferred Stock accepted for
payment pursuant to the Qualifying Equity Proceeds Offer will cease to
accumulate dividends on the Qualifying Equity Payment Date; (v) holders of
Series A Preferred Stock electing to have any shares of Series A Preferred
Stock purchased pursuant to a Qualifying Equity Proceeds Offer will be
required to surrender such shares, properly endorsed for transfer, to the
transfer agent for the Series A Preferred Stock at the address specified in
the notice prior to the close of business on the third Business Day
preceding the Qualifying Equity Payment Date; (vi) holders of Series A
Preferred Stock will be entitled to withdraw their tendered shares of
Series A Preferred Stock and their election to require the Company to
pur-
<PAGE>
-9-
chase such shares; provided that the transfer agent receives, not later
than the close of business on the last day of the offer period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder of the Series A Preferred Stock, the aggregate liquidation
preference of Series A Preferred Stock tendered for purchase, and a
statement that such holder is withdrawing his tendered shares of Series A
Preferred Stock and his election to have such shares of Series A Preferred
Stock purchased; and (vii) that holders whose shares of Series A Preferred
Stock are being purchased only in part will be issued new shares of Series
A Preferred Stock equal in number to the unpurchased portion of the shares
of Series A Preferred Stock surrendered, which unpurchased portion must be
in whole shares.
On the Qualifying Equity Payment Date, the Company shall, to the
extent permitted by law, (i) accept for payment all shares of Series A
Preferred Stock properly tendered pursuant to the Qualifying Equity
Proceeds Offer on a pro rata basis (or as nearly a pro rata basis as
practicable) to the extent of any Excess Proceeds or Subsequent Offering
Proceeds, as the case may be, (ii) deposit with the transfer agent for the
Series A Preferred Stock an amount in cash equal to the aggregate
Qualifying Equity Payment in respect of all shares of Series A Preferred
Stock so tendered and (iii) deliver, or cause to be delivered, to such
transfer agent for cancellation the shares of Series A Preferred Stock so
accepted. The Company shall promptly mail, or cause to be mailed, to each
holder of Series A Preferred Stock the Qualifying Equity Payment for such
Series A Preferred Stock, and new shares of Series A Preferred Stock equal
in number to any unpurchased portion of Series A Preferred Stock
surrendered, if any. The Company shall publicly announce the results of the
Qualifying Equity Offer on or as soon as practicable after the Qualifying
Equity Payment Date. The Company may act as transfer agent for the Series A
Preferred Stock.
(6) PRIORITY OF SERIES A PREFERRED STOCK IN EVENT OF LIQUIDATION OR
DISSOLUTION. In the event of any liquidation, dissolution, or winding up of
the affairs of the Company, whether voluntary or otherwise, after payment
or provision for payment of the debts and other liabilities of the Company,
the holders of the Series A Preferred Stock shall be entitled to receive,
out of the remaining net assets of the Company, the amount of one hundred
dollars ($100.00) in cash for each share of Series A Preferred Stock (the
"Liquidation Preference"), plus an amount equal to all dividends (including
Additional Dividends) accrued and unpaid on each such share up to the date
fixed for distribution, before any distribution shall be made to the
holders of the Common Stock of the Company or any other stock ranking (as
to any such distribution) junior to the Series A Preferred Stock. In the
event of any involuntary or voluntary liquidation, dissolution or winding
up of the affairs of the Company, the Company by resolution of its Board of
Directors shall, to the extent of any Legally Available Funds, declare a
dividend on the Series A Preferred Stock payable before any distribution is
made to any holder of any series of preferred stock or common stock or any
other stock of the Company ranking junior to the Series A Preferred Stock
as to liquidation, dissolution or winding up, in an amount equal to any
accrued and unpaid dividends (including Additional Dividends) on the Series
A Preferred Stock as of such date and if the Company does not have
sufficient Legally Available Funds to declare and pay all dividends
(including Additional Dividends) accrued at the time of such liquidation,
any remaining accrued and unpaid dividends (including Additional Dividends)
shall be added to the price to be received by
<PAGE>
-10-
the holders of the Series A Preferred Stock for such Series A Preferred
Stock. If, upon any liquidation, dissolution or winding up of the Company,
the assets distributable among the holders of any Parity Securities shall
be insufficient to permit the payment in full to the holders of all such
series of Preferred Stock of all preferential amounts payable to all such
holders, then subject to Section 2(b), the entire assets of the Company
thus distributable shall be distributed ratably among the holders of all
Parity Securities in proportion to the respective amounts that would be
payable per share if such assets were sufficient to permit payment in full.
Except as otherwise provided in this subsection (6), holders of Series A
Preferred Stock shall not be entitled to any distribution in the event of
liquidation, dissolution or winding up of the affairs of the Company.
For the purposes of this subsection (6), neither the voluntary sale,
lease, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
or assets of the Company, nor the consolidation or merger of the Company
with one or more other corporations, shall be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, unless such voluntary
sale, lease, conveyance, exchange or transfer shall be in connection with a
plan of liquidation, dissolution or winding up of the Company.
(7) VOTING RIGHTS. (a) The holders of the Series A Preferred Stock
shall not, except as required by law or as otherwise set forth herein, have
any right or power to vote on any question or in any proceeding or to be
represented at, or to receive notice of, any meeting of the Company's
stockholders. On any matters on which the holders of the Series A Preferred
Stock shall be entitled to vote, they shall be entitled to one vote for
each share held.
(b) In case at any time (i) the equivalent of six or more full
quarterly dividends on the Series A Preferred Stock out of any eight
consecutive Quarterly Dividend Periods shall be in arrears or (ii) the
Company shall have failed to make a mandatory redemption of shares of
Series A Preferred Stock as set forth in subsection (3)(a), or (iii) the
Company shall have failed to comply with the provisions in subsection (4)
or (5) in any material respect, then during the period (the "Voting
Period") commencing with such time and ending with the time when (i) all
arrears in dividends on the Series A Preferred Stock shall have been paid
or (ii) the Company shall have redeemed all shares of the Series A
Preferred Stock as set forth in subsection (3)(a), or (iii) the Company
shall have purchased any shares of Series A Preferred Stock validly
tendered for purchase under the provisions of subsection (4) or (5), in
each case as applicable, the remedy for such matters, without otherwise
affecting the Company's obligations, shall be that the number of members of
the Board of Directors shall automatically be increased by one and the
holders of a majority of the outstanding shares of Series A Preferred Stock
represented in person or by proxy at any meeting of the stockholders of the
Company held for the election of directors during the Voting Period shall
be entitled, as a class, to the exclusion of the holders of all other
classes or series of capital stock of the Company, to elect one director of
the Company to fill the directorship so created. The remaining directors
shall be elected by the other class or classes of stock entitled to vote
therefor, at each meeting of stockholders held for the purpose of electing
directors.
<PAGE>
-11-
(c) At any time when the voting rights set forth in subsection (7)(b)
with respect to the election of directors shall have vested in the holders
of Series A Preferred Stock and if such right shall not already have been
initially exercised, a proper officer of the Company shall, upon the
written request of any holder of record of Series A Preferred Stock then
outstanding, addressed to the Secretary of the Company, call a special
meeting of holders of Series A Preferred Stock. Such meeting shall be held
at the earliest practicable date upon the notice required for annual
meetings of stockholders at the place for holding annual meetings of
stockholders of the Company or, if none, at a place designated by the
Secretary of the Company. If such meeting shall not be called by the proper
officers of the Company within 30 days after the personal service of such
written request upon the Secretary of the Company, or within 30 days after
mailing the same within the United States, by registered mail, addressed to
the Secretary of the Company at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal authorities), then
the holders of record of 25% of the shares of Series A Preferred Stock then
outstanding may designate in writing a holder of Series A Preferred Stock
to call such meeting at the expense of the Company, and such meeting may be
called by such person so designated upon the notice required for annual
meetings of stockholders and shall be held at the same place as is
elsewhere provided in this subsection (7)(c). Any holder of Series A
Preferred Stock which would be entitled to vote at such meeting shall have
access to the stock ledger books of the Company for the purpose of causing
a meeting of the stockholders to be called pursuant to the provisions of
this subsection (7)(c). Notwithstanding the other provisions of this
subsection (7)(c), however, no such special meeting shall be called during
a period within 60 days immediately preceding the date fixed for the next
annual meeting of stockholders.
(d) At any meeting held for the purpose of electing directors at which
the holders of Series A Preferred Stock shall have the right to elect
directors as provided herein, the presence in person or by proxy of the
holders of at least one-third of the then outstanding shares of Series A
Preferred Stock shall be required and be sufficient to constitute a quorum
of such class for the election of directors by such class. At any such
meeting or adjournment thereof (i) the absence of a quorum of the holders
of Series A Preferred Stock shall not prevent the election of directors
other than those to be elected by the holders of stock of such class and
the absence of a quorum or quorums of the holders of capital stock entitled
to elect such other directors shall not prevent the election of directors
to be elected by the holders of Series A Preferred Stock and (ii) in the
absence of a quorum of the holders of any class of stock entitled to vote
for the election of directors, a majority of the holders present in person
or by proxy of such class shall have the power to adjourn the meeting for
the election of directors which the holders of such class are entitled to
elect, from time to time without notice (except as required by law) other
than announcement at the meeting, until a quorum shall be present.
(e) Any director who shall have been elected by holders of Series A
Preferred Stock may be removed at any time during a Voting Period, either
for or without cause, by and only by the affirmative vote of the holders of
record of a majority of the outstanding shares of Series A Preferred Stock
given at a special meeting of such stockholders called for such purpose,
and any vacancy thereby created may be filled during such Voting Period by
the holders of Series A Preferred Stock present in person or represented by
proxy at such meeting. Any
<PAGE>
-12-
director elected by holders of Series A Preferred Stock who dies, resigns
or otherwise ceases to be a director shall be replaced by the affirmative
vote of the holders of record of a majority of the outstanding shares of
Series A Preferred Stock at a special meeting of stockholders called for
that purpose. At the end of the Voting Period, the holders of Series A
Preferred Stock shall be automatically divested of all voting power vested
in them under this subsection 7(e) but subject always to the subsequent
vesting hereunder of voting power in the holders of Series A Preferred
Stock if any subsequent event would again trigger a new Voting Period under
subsection 7(b). The term of all directors elected pursuant to the
provisions of this subsection 7(e) shall in all events expire at the end of
the Voting Period and upon such expiration the number of directors
constituting the Board of Directors shall, without further action, be
reduced by one director, subject always to the increase of the number of
directors pursuant to subsection 7(b) hereof in case of the future right of
the holders of Series A Preferred Stock to elect directors as provided
herein.
(8) CONVERSION OF SERIES A PREFERRED STOCK. The Series A Preferred
Stock shall not be convertible.
(9) LIMITATIONS. Except as expressly permitted by this subsection (9),
the Company shall not and shall not permit any of its Subsidiaries to (1)
declare, pay or set apart for payment any dividend or make any distribution
on, or directly or indirectly purchase, redeem or discharge any mandatory
redemption, sinking fund or other similar obligation in respect of any
other stock of the Company ranking on a parity with the Series A Preferred
Stock as to dividends or liquidation rights (collectively, "Parity
Securities"), or in respect of any warrants, rights or options exercisable
for or convertible into any such Parity Securities or (2) declare, pay or
set apart for payment any dividend or make any distributions on, or,
directly or indirectly, purchase, redeem or satisfy any such mandatory
redemption, sinking fund or other similar obligation in respect of any
stock of the Company ranking junior to the Series A Preferred Stock as to
dividends or liquidation rights (collectively, "Junior Securities"), or in
respect of any warrants, rights or options exercisable for or convertible
into any Junior Securities; provided, however, that (1) with respect to
dividends and distributions, payments may be made or amounts set aside for
payment of dividends on Parity Securities if either (x) it is made in
accordance with subsection (2)(b) hereof or (y) prior to or concurrently
with such payment or setting apart for payment, all accrued and unpaid
dividends on shares of the Series A Preferred Stock not paid on the dates
provided for in subsection (2) hereof (including Additional Dividends)
shall have been or shall be paid and no Voting Period shall be in effect;
(2) with respect to any purchase, redemption or retirement of Parity
Securities, shares of Series A Preferred Stock shall be redeemed so that
the number of shares of Series A Preferred Stock and Parity Securities so
purchased or redeemed shall bear to each other the same ratio that the
Liquidation Preference and the liquidation preference of such Parity
Securities shall bear to each other; (3) dividends and distributions may be
made or set aside for payment in respect of any Junior Securities if (A)
the Company is not in arrears in the payment of dividends with respect to
the Series A Preferred Stock, (B) no Voting Period is in effect and (C) the
aggregate amount of such dividends and distributions made or set aside for
payment after the original issuance of the Series A Preferred Stock does
not exceed the aggregate net cash proceeds received and the fair market
value (as determined in good faith by the Board of Di-
<PAGE>
-13-
rectors of the Company) of property received after the issuance date of the
Series A Prefer-red Stock by the Company from the issuance or sale of
Junior Stock or warrants, options or rights to purchase Junior Stock or
from capital contributions in respect of Junior Stock, provided that the
requirements of this clause (C) need only be met for so long as $10,000,000
or more in aggregate Liquidation Preference of Series A Preferred Stock is
outstanding (unless the outstanding amount has been reduced to less than
$10,000,000 by reason of an optional redemption under subsection (3)(b)).
Notwithstanding the foregoing, the need to comply with the foregoing clause
(C) will terminate in the event that, on or prior to the Trigger Date, the
Company or a third party shall have offered to purchase (a "Terminating
Tender") all then outstanding shares of Series A Preferred Stock at a price
equal to the liquidation preference thereof, together with accrued and
unpaid dividends thereon, and purchases any shares of Series A Preferred
Stock validly tendered in the Terminating Tender, whether or not all
holders shall so tender their shares for purchase. A Terminating Tender
shall remain open for a minimum of 20 business days. In addition,
notwithstanding the foregoing, the Company will be permitted to (1) pay
dividends and distributions in respect of capital stock in the form of
Junior Stock and dividends and distributions in respect of Parity Stock in
the form of Parity Stock; (2) pay dividends or make other distributions in
respect of any capital stock if at the time of declaration of such dividend
or distribution the Company could have made such payment in compliance with
this subsection (9); (3) exchange or replace Junior Stock with other Junior
Stock or Parity Stock with Parity Stock or Junior Stock; (4) make payments
to redeem, repurchase or acquire for value Junior Stock or Parity Stock or
options in respect thereof, in each case in connection with any repurchase,
cash settlement, put or call provisions under employee stock option,
management subscription, retained share or stock purchase agreements or
other agreements to compensate employees, including in respect of
restricted stock awards, as contemplated by the Recapitalization Agreement;
and (5) redeem, purchase or acquire Junior Stock upon a change in control
or an equity issuance following or at the time of satisfaction or waiver of
the provisions contained in subsection (4) or (5) and in any indebtedness
of the Surviving Company.
(a) So long as any shares of the Series A Preferred Stock are
outstanding and unless the vote or consent of the holders of a greater
number of shares shall then be required by law, except as otherwise
provided in this Certificate of Incorporation, the Company shall not amend
this Certificate of Incorporation without the approval, by vote or written
consent, by the holders of at least a majority of the then outstanding
shares of the Series A Preferred Stock if such amendment would amend any of
the rights, preferences, privileges of or limitations provided for herein
for the benefit of any shares of Series A Preferred Stock so as to affect
such holders adversely. Without limiting the generality of the preceding
sentence, the Company will not amend this Certificate of Incorporation
without the approval by the holders of at least a majority of the then
outstanding shares of Series A Preferred Stock if such amendment would:
(i) change the relative seniority rights of the holders of Series
A Preferred Stock as to the payment of dividends in relation to the
holders of any other capital stock of the Company, or create any other
class or series of capital stock entitled to (a) seniority as to
liquidation preferences or dividend, repurchase or redemption rights,
or (b) parity as to
<PAGE>
-14-
liquidation preferences or dividend, repurchase or redemption rights,
in each case in relation to the holders of the Series A Preferred
Stock;
(ii) reduce the amount payable to the holders of Series A
Preferred Stock upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company, or change the relative
seniority of the liquidation preference of the holders of Series A
Preferred Stock to the rights upon liquidation of the holders of other
capital stock of the Company, or change the dividend or redemption
rights of the holders of Series A Preferred Stock;
(iii) cancel or modify the rights of the holders of the Series A
Preferred Stock provided for in this subsection (9) or in subsection
(3) through (7);
(iv) increase or decrease (other than by redemption or purchase
and any subsequent filing in connection therewith) the authorized
number of shares of Series A Preferred Stock; or
(v) subject to the following paragraph, allow for the issuance of
a Parity Security.
Notwithstanding the foregoing provisions, the designation or
authorization of any Parity Security shall be permitted without a separate
class vote of the Series A Preferred Stock for the authorization of such
equity security, if such equity security is issued in connection with (1)
an investment by the Company or any Subsidiary of the Company in any other
person pursuant to which such person shall become a Subsidiary of the
Company or any Subsidiary of the Company, or shall be merged with or into
the Company or any Subsidiary of the Company, or (2) the acquisition by the
Company or any Subsidiary of the Company of the assets of any person which
constitute all or substantially all of the assets of such person or
comprises any division or line of business of such person or any other
properties or assets of such person acquired outside of the ordinary course
of business (either of subclauses (1) and (2) an "Acquisition"); provided
that, in each case, such issuance is to a person or persons having a direct
or indirect beneficial interest in the person or assets so acquired by the
Company or any Subsidiary of the Company; and provided, further, that the
Company shall not issue any Parity Security if the Company is in arrears in
the payment of dividends with respect to the Series A Preferred Stock.
(b) So long as any shares of the Series A Preferred Stock are
outstanding the Company shall not allow any Subsidiary of the Company to
issue any preferred stock (other than to Company or a Subsidiary of the
Company). Notwithstanding the foregoing, a Subsidiary of the Company will
be permitted to issue preferred stock in connection with an Acquisition so
long as such issuance is to a person having a direct or indirect beneficial
interest in the person or assets so acquired by the Company or any
Subsidiary of the Company if such preferred stock is issued solely by the
acquired entity or solely by a Subsidiary of the Company substantially all
of whose assets are then comprised of the assets so acquired.
<PAGE>
-15-
(c) So long as any shares of the Series A Preferred Stock are
outstanding and unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the consent of the holders
of a majority of all of the outstanding shares of Series A Preferred Stock
(given in person or by proxy, either by written consent pursuant to the
Delaware General Corporation Law or by a vote at a special meeting of
stockholders called for such purpose or at any annual meeting of
stockholders, with the holders of Series A Preferred Stock voting as a
class and with each share of Series A Preferred Stock having one vote)
shall be required prior to the sale, lease or conveyance of all or
substantially all of the Company's assets or the merger or consolidation of
the Company with or into any other entity if as a result of such
transaction the Series A Preferred Stock would be cashed out for less than
100% (or, if the transaction would constitute a Change in Control, 101%) of
its Liquidation Preference plus any accrued and unpaid dividends (including
Additional Dividends), or as a result of which the Series A Preferred Stock
would continue in existence (either as stock in the Company or in the
surviving company in a merger or in any parent company of the Company or
such surviving corporation) but with an adverse alteration in its specified
designations, rights, preferences or privileges.
(d) Nothing herein contained shall be construed so as to require a
class vote or the consent of the holders of the outstanding shares of
Series A Preferred Stock (i) in connection with any increase in the total
number of authorized shares of Common Stock, or (ii) in connection with the
authorization or increase of any class or series of Junior Securities.
The limitations stated above shall not apply if, at or prior to the
time when the distribution, payment, purchase, redemption, discharge,
conversion, exchange, amendment, alteration, repeal, issuance, sale, lease,
conveyance, merger or consolidation is to occur, as the case may be,
provision is made for the redemption or reacquisition of all shares of
Series A Preferred Stock at the time outstanding. Nothing herein contained
shall in any way limit the right and power, subject to the limitations set
forth herein, of the Company to issue the presently authorized but unissued
shares of its capital stock, or bonds, notes, mortgages, debentures, and
other obligations, and to incur indebtedness to banks and to other lenders.
(10) RANKING OF SERIES A PREFERRED STOCK. With regard to rights to
receive dividends, mandatory redemption payments and distributions upon
liquidation, dissolution or winding up of the Company, the Series A
Preferred Stock shall rank prior to all other capital stock, of the Company
outstanding at the time of issuance of the Series A Preferred Stock. As
contemplated by subsection (9), Series A Preferred Stock shall be subject
to the creation of Junior Securities and, pursuant to the voting
requirements of subsection (9), Parity Securities and Senior Securities.
D. Except as set forth in any contractual agreements between the
Company and a shareholder of the Company, no holder of any class of stock
issued by this Company shall be entitled to pre-emptive rights.
<PAGE>
-16-
E. The number of authorized shares of each class of stock may be
increased or decreased by the affirmative vote of the holders of a majority
of the stock of the Company entitled to vote, voting together as a single
class.
5. (a) The business and affairs of the Company shall be managed by or under
the direction of a Board of Directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. A director shall hold office until
the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement or removal from office. Except as otherwise required by
law, any vacancy on the Board of Directors that results from an increase in the
number of directors shall be filled only by a majority of the Board of Directors
then in office, provided that any other vacancy occurring in the Board of
Directors shall be filled only by a majority of the directors then in office,
even if less than a quorum is present, or by a sole remaining director. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall serve for the remaining term of his predecessor.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock or any other class of stock issued by the
Company shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of such preferred stock with respect to such stock and
such directors so elected shall not be divided into classes pursuant to this
Article 5.
(b) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote in the election of directors.
6. Except as otherwise required by law, special meetings of stockholders of
the Company may be called at any time for any purpose or purposes by the Board
of Directors or by the President, and shall be called by the President or
Secretary upon the request of a majority of the Directors or upon the written
request of the holders of at least a majority of all outstanding shares entitled
to vote on the action proposed to be taken. Special meetings shall be held at
such place within or without the State of Delaware and at such hour as may be
designated in the notice of such meeting and the business transacted shall be
confined to the object stated in the notice of the meeting.
7. In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors is expressly
authorized: To make, alter or repeal the by-laws of the Company; To authorize
and cause to be executed mortgages and liens upon the real and personal property
of the Company; To set apart out of any of the funds of the Company 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.
8. Whenever a compromise or arrangement is proposed between the Company and
its creditors or any class of them and/or between the Company 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 the Company or
of any creditor or stockholder thereof, or on the application of any
<PAGE>
-17-
receiver or receivers appointed for the Company under the provisions of Section
291 of Title 8 of the Delaware General Corporation Law or on application of
trustees in dissolution or of any receiver or receivers appointed for the
Company under the provisions of 279 of Title 8 of the Delaware General
Corporation Law, order a meeting of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of the Company, 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 the Company, as the case
may be, agree to any compromise or arrangement and to any reorganization of the
Company 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
the Company, as the case may be, and also on the Company.
9. Meetings of stockholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the Company may be kept
(subject to any provision contained in the Delaware General Corporation Law)
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 bylaws of the Company.
Elections of Directors need not be by ballot unless the bylaws of the Company
shall so provide.
10. The Company 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 the Delaware General Corporation Law, and all rights and
powers conferred upon stockholders, directors and officers, if any, herein are
granted subject to this reservation.
11. A director of the Company shall not be personally liable to the Company
or its stockholders for monetary damages for breach of fiduciary duty by such
director as a director, except for liability (a) for any breach of the
director's duty of loyalty to the Company or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the Delaware General Corporation Law,
or (d) for any transaction from which the director derived an improper personal
benefit. If the Delaware General Corporation Law hereafter is amended to
authorize the further limitation or elimination of the personal liability of
directors, then the liability of a director of the Company, in addition to the
limitation on liability provided herein, shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of this Article 11 shall not increase the liability
of any director of the Company for any act or occurrence taking place prior to
such repeal or modification, or otherwise adversely affect any right or
protection of a director of the Company existing at the time of such repeal or
modification.
12. A. Each person who was or is a party or is threatened to be made a
party to, or is otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any
<PAGE>
-18-
other capacity while serving as a director, officer, or employee, shall be
indemnified and held harmless by the Company to the fullest extent permitted by
the Delaware General Corporation Law, as the same exists or may hereafter be
amended against all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines and amounts paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of such person's heirs,
executors and administrators. The Company shall indemnify a director, officer or
employee in connection with an action, suit or proceeding (other than an action,
suit or proceeding to enforce indemnification rights provided for herein or
elsewhere) initiated by such director, officer or employee only if such action,
suit or proceeding was authorized by the Board of Directors. The right to
indemnification conferred in this Paragraph A shall be a contract right and
shall include the right to be paid by the Company the expenses incurred in
defending any action, suit or proceeding in advance of its final disposition;
provided, however, that, if the Delaware General Corporation Law requires, the
payment of such expenses incurred by a director or officer in such person's
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person) in advance of the final disposition
of an action, suit or proceeding, such payment of expenses shall be made only
upon delivery to the Company of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that such director or officer is not entitled to be indemnified for such
expenses under this Article 12 or otherwise.
B. The Company may, to the extent authorized from time to time by the Board
of Directors, provide indemnification and the advancement of expenses, to any
agent of the Company and to any person who is or was serving at the request of
the Company as an employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, to such extent and to such effect as
the Board of Directors shall determine to be appropriate and permitted by
applicable law, as the same exists or may hereafter be amended.
C. The rights to indemnification and to the advancement of expenses
conferred in this Article 12 shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of this
Certificate of Incorporation or bylaws of the Company, agreement, vote of
stockholders or disinterested directors or otherwise.
D. Neither the amendment nor repeal of this Article 12, nor the adoption of
any provision of this Certificate of Incorporation or the bylaws of the Company,
nor, to the fullest extent permitted by applicable law, any modification of law,
shall eliminate or reduce the effect of this Article 12 in respect to any acts
or omissions occurring prior to such amendment or repeal or such adoption of an
inconsistent provision.
13. The Company shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another Company, partnership, joint venture, trust
or other enterprise against any liability asserted against him and incurred by
him in any such capacity or arising out of his status as such, whether or not
the Company
<PAGE>
-19-
would have the power to indemnify him against such liability under the
provisions of the Delaware General Corporation Law.
