SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
_______________________
Date of Report
(Date of earliest
event reported): October 21, 1994
IMC Global Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-9759 36-3492467
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
2100 Sanders Road, Northbrook, Illinois 60062
(Address of principal executive offices including zip code)
(708) 272-9200
(Registrant's telephone number)
IMC Fertilizer Group, Inc.
(Former name, if changed since last report)
<PAGE>
Item 5. Other Events.
On October 21, 1994, IMC Fertilizer Group, Inc. (the "Company")
filed with the Secretary of State of Delaware a Certificate of Amendment
to its Certificate of Incorporation which changed the name of the Company
to IMC Global Inc.
Item 7. Financial Statements and Exhibits.
(a) Not Applicable.
(b) Not Applicable.
(c) Exhibits. The following exhibits are being filed herewith:
(3.1) Certificate of Incorporation of the Company, as
amended to date.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
IMC GLOBAL INC.
(Registrant)
Date: November 1, 1994 /s/ Marschall I. Smith
Marschall I. Smith
Senior Vice President and General Counsel
<PAGE>
IMC GLOBAL INC.
EXHIBIT TO FORM 8-K
Exhibit Page
(3.1) Certificate of Incorporation of the Company,
as amended to date.
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
IMC GLOBAL INC.
(as amended through October 21, 1994)
ARTICLE FIRST
The name of the corporation is IMC Global Inc.
ARTICLE SECOND
The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street in the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such
address is The Corporation Trust Company.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware either alone or with others
through wholly or partially owned subsidiaries, as a partner (limited or
general) in any partnership, as a joint venturer in any joint venture, or
otherwise.
ARTICLE FOURTH
The aggregate number of shares which the Corporation shall have
authority to issue is 62,000,000 divided into 12,000,000 shares of Series
Preferred Stock, $1.00 par value per share (hereafter called "Series
Preferred Stock"), and 50,000,000 shares of Common Stock, $1.00 par value
per share (hereafter called "Common Stock"). All of such shares shall be
issued as fully-paid and non-assessable shares, and the holders thereof
shall not be liable for any further payments in respect thereto.
The designations, powers, preferences and rights of the shares of each
class and the qualifications, limitations or restrictions thereof shall be
a follows:
(a) SERIES PREFERRED STOCK
The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by law and the provisions of this ARTICLE FOURTH,
to provide for the issuance of the shares of the Series Preferred Stock in
series, and by filing a certificate pursuant to the Delaware General
Corporation Law, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers,
preferences and rights of the shares of each such series and the
qualifications, limitations or restrictions thereof. Shares of any series
of Series Preferred Stock which shall be issued and thereafter acquired by
the Corporation through purchase, redemption, exchange, conversion or
otherwise, shall return to the status of authorized but unissued Series
Preferred Stock unless otherwise provided in the resolution or resolutions
of the Board of Directors. Unless otherwise provided in the resolution or
resolutions of the Board of Directors providing for the issuance thereof,
the number of authorized shares of stock of any such series may be
increased or decreased (but not below the number of shares thereof then
outstanding) by resolution or resolutions of the Board of Directors. In
each case the number of shares of any such series of Series Preferred
Stock shall be decreased, the shares representing such decrease shall,
unless otherwise provided in the resolution or resolutions of the Board of
Directors providing for the issuance thereof, resume the status of
authorized but unissued Series Preferred Stock, undesignated as to series.
(b) COMMON STOCK
1. Dividends. Subject to the rights of each series of the Series
Preferred Stock, dividends may be declared and paid or set apart for
payment upon the Common Stock out of any assets or funds of the
Corporation legally available for the payment of dividends.
2. Voting Rights. Except as otherwise expressly provided with
respect to any series of the Series Preferred Stock, the Common Stock
shall have the exclusive right to vote for the election of directors and
for all other purposes, each holder of the Common Stock being entitled to
one vote for each share thereof held.
3. Liquidation. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, and after the holders
of the Series Preferred Stock of each series shall have been paid in full
the amounts to which they respectively shall be entitled, or an amount
sufficient to pay the aggregate amount to which the holders of the Series
Preferred Stock of each series shall be entitled shall have been deposited
with a bank or trust company having its principal office in the Borough of
Manhattan, The City of New York, and having capital, surplus and undivided
profits of at least Twenty-Five Million Dollars ($25,000,000) as a trust
fund for the benefit of the holders of such Series Preferred Stock, the
remaining net assets of the Corporation shall be distributed pro rata to
the holders of the Common Stock in accordance with their respective rights
and interests, to the exclusion of the holders of such Series Preferred
Stock.
(c) GENERAL PROVISIONS
A consolidation or merger of the Corporation with or into another
Corporation or Corporations or a sale, whether for cash, shares of stock,
securities or properties, of all or substantially all of the assets of the
Corporation shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
Article.
No holder of Common Stock or Series Preferred Stock of the Corporation
shall be entitled, as such, as a matter of right, to subscribe for or
purchase any part of any new or additional issue of stock of any class or
series whatsoever or of securities convertible into stock of any class
whatsoever, whether now or hereafter authorized and whether issued for
cash or other consideration, or by way of dividend.
(d) JUNIOR PARTICIPATING PREFERRED STOCK, SERIES C:
SECTION 1. Designation and Amount. The shares of this series shall
be designated as "Junior Participating Preferred Stock, Series C" (the
"Series C Preferred Stock") and the number of shares constituting the
Series C Preferred Stock shall be 3,000,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided,
that no decrease shall reduce the number of shares of Series C Preferred
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series C Preferred
Stock.
SECTION 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock or any other stock) ranking prior and superior to the
Series C Preferred Stock with respect to dividends, the holders of shares
of Series C 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 thirtieth day of
March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series C Preferred Stock, in an amount (if
any) per share (rounded to the nearest cent), subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock, par value $1.00
per share (the "Common Stock"), of the Company or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share
of Series C Preferred Stock. In the event the Corporation shall at any
time declare or pay any dividend on the common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
to which holders of shares of Series C Preferred Stock were entitled
immediately prior to such event under the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series C Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock).
(C) Dividends due pursuant to paragraph (A) of this Section shall
begin to accrue and be cumulative on outstanding shares of Series C
Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series C
Preferred Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series C 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 C Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the
payment thereof.
SECTION 3. Voting Rights. The holders of shares of Series C
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series C Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall
at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series C Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately alter such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided in the Restated Certificate of
Incorporation of the Company, including any other Certificate of
Designations creating a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Series C Preferred Stock
and the holders of shares of Common Stock and any other capital stock
of the Corporation having general voting rights shall vote together as
one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series C Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
SECTION 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series C 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 C
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series C
Preferred Stock, except dividends paid ratably on the Series C
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; or
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Preferred
Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (as to
dividends and upon dissolution, liquidation or winding up) to the
Series C Preferred Stock.
(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.
SECTION 5. Reacquired Shares. Any shares of Series C 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 subject to the conditions and restrictions
on issuance set forth herein, in the Restated Certificate of Incorporation
of the Company, including any Certificate of Designations creating a
series of Preferred Stock or any similar stock or as otherwise required by
law.
SECTION 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation the holders of
shares of Series C Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock plus an amount
equal to any accrued and unpaid dividends. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares of
Series C Preferred Stock were entitled immediately prior to such event
under the preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
SECTION 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
each share of Series C Preferred Stock shall at the same time be similarly
exchanged or changed into K amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock is
changed or exchange. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change
of shares of Series C Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8. Amendment. The Restated Certificate of InCorporation of
the Corporation shall not be amended in any manner, including in a merger
or consolidation, which would alter, change, or repeal the powers,
preferences or special rights of the Series C Preferred Stock so a to
affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series C Preferred Stock,
voting together as a single class.
ARTICLE FIFTH
The business and affairs of the Corporation shall be managed by the
Board of Directors, and the directors need not be elected by ballot unless
required by the By-Laws of the Corporation.
ARTICLE SIXTH
Action shall be taken by stockholders of the Corporation only at
annual or special meetings of stockholders, and stockholders may not act
by written consent. Special meetings of the Corporation may be called
only as provided in the By-Laws.
ARTICLE SEVENTH
The following provisions are inserted for the regulation and conduct
of the affairs of the Corporation, and it is expressly provided that they
are intended to be in furtherance and not in limitation or exclusion of
the powers conferred by statute:
(a) The Board of Directors is expressly authorized to adopt, amend
or repeal the By-Laws of the Corporation.
(b) Subject to the provisions of the By-Laws, meetings of the
stockholders and directors of the Corporation for all purposes may be
held at any place within the State of Delaware and, unless otherwise
provided by law, at any place without such State.
(c) All corporate powers, including the sale, mortgage,
hypothecation and pledge of the whole or any part of the corporate
property, shall be exercised by the Board of Directors, except as
otherwise expressly provided by law.
(d) The Corporation may have one or more offices within or without
the State of Delaware and may keep the books of the Corporation,
subject to the provisions of the laws of the State of Delaware, at
such place or places within or without the State of Delaware as the
Board of Directors shall from time to time determine.
(e) The Board of Directors shall from time to time decide whether
and to what extent and at what times and under what conditions and
requirements the accounts and books of the Corporation, or any of
them, except the stock book, shall be open to the inspection of the
stockholders, and no stockholder shall have any right to inspect any
books or documents of the Corporation except as conferred by the laws
of the State of Delaware or as authorized by the Board of Directors.
(f) The Board of Directors shall have power from time to time to fix
and to determine and vary the amount of the working capital of the
Corporation, and to direct and determine the use and disposition of
any surplus or net profits over and above the capital stock paid in;
and in its discretion the Board of Directors may use and apply any
such surplus or accumulated profits in purchasing or acquiring bonds
or other obligations of the Corporation, to such extent and in such
manner and upon such terms as the Board of Directors shall deem
expedient.
(g) Directors elected by holders of stock of the Corporation
entitled to vote generally in the election of directors may be removed
at any time by a majority vote of such stockholders, provided that
such removal may only be for cause. Directors elected by any class of
stock, voting separately as a class, may be removed only by a majority
vote of such class, voting separately as a class, so long as the
voting power of such class shall continue, provided such removal may
only be for cause.
ARTICLE EIGHTH
The Corporation shall indemnify each officer and director of the
Corporation to the fullest extent permitted by applicable law, except as
may be otherwise provided in the Corporation's By-Laws, and in furtherance
hereof the Board of Directors is expressly authorized to amend the
Corporation's ByLaws from time to time to give full effect hereto,
notwithstanding possible self-interest of the Directors in the action
being taken. The modification or repeal of this ARTICLE EIGHTH shall not
adversely affect the right to indemnification of any officer or director
hereunder with respect to any act or omission occurring prior to such
modification or repeal.
ARTICLE NINTH
(a) The number of directors of the Corporation, exclusive of
directors, if any, to be elected by the holders of one or more series of
Series Preferred Stock shall be not less than three nor more than twelve.
Subject to such limitation, such number may be fixed by the By-Laws, or by
action of the stockholders or of the Board of Directors under the specific
provisions of a By-Law adopted by the stockholders. The directors of the
Corporation shall be divided into three classes, a nearly equal in number
as practicable. The term of office of the first class shall expire at the
first annual meeting of stockholders succeeding the initial classification
of directors, the term of office of the second class shall expire at the
second annual meeting succeeding such classification and the term of
office of the third class shall expire at the third annual meeting
succeeding such classification. At each annual meeting, directors to
replace those whose terms of office expire at such annual meeting shall be
elected to hold office until the third succeeding annual meeting or until
his successor shall be elected and qualify, or until his earlier death,
resignation or removal. If the number of directors is changed, the number
of directorships shall be apportioned among the classes as to make each
class as nearly equal in size as practicable.
(b) Any vacancies on the Board of Directors occurring for any
reason, or any newly created directorships resulting from any increase in
the number of directors, shall be filled by the Board of Directors, the
appointee to any such vacancy to serve for the unexpired portion of the
term of the director whose leaving the Board created the vacancy, and the
appointee to any newly created directorship to be assigned by the Board to
such class of the Board so as to make the classes as nearly equal in size
as practicable.
ARTICLE TENTH
(a) The affirmative vote of the holders of not less than a majority
of the Voting Stock (as hereinafter defined) of the Corporation shall be
required before the Corporation may purchase any outstanding shares of
Common Stock of the Corporation at a price known by the Corporation to be
above Market Price (as hereinafter defined) from a person known by the
Corporation to be a Selling Stockholder (a hereinafter defined), unless
the purchase is made by the Corporation on the same terms and as a result
of a duly authorized offer to purchase any and all of the outstanding
shares of Common Stock of the Corporation.
(b) For purposes of this ARTICLE TENTH:
(1) The term "Voting Stock" shall mean the outstanding shares
of stock of the Corporation entitled to vote in elections of
directors of the Corporation considered as one class.
(2) The majority vote required by Section (a), when applicable,
shall be in addition to any lesser vote or no vote required or
permitted by law or this Certificate of Incorporation exclusive of
this ARTICLE TENTH and the shares of the Selling Stockholder shall,
for this purpose, be counted as having abstained regardless of how
they have been voted.
(3) The term "Market Price" shall mean the highest closing sale
price, during the 30-day period immediately preceding the date in
question, of a share of the Common Stock of the Corporation on the
Composite Tape for New York Stock Exchange Issues, or, if such stock
is not quoted on the Composite Tape or is not listed on such
Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such
stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share
of such stock during the 30-day period preceding the date in question
on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a
share of such stock.
(4) The term "Selling Stockholder" shall mean and include any
person who or which is the beneficial owner of in the aggregate more
than three percent of the outstanding shares of Common Stock of the
Corporation and who or which ha purchased or agreed to purchase any
of such shares within the most recent two-year period (other than any
stockholder who owned in excess of 50% of the voting power of the
capital stock of the Corporation on the date of the filing of this
Amended and Restated Certificate of InCorporation).
(5) A "person" shall mean any individual, firm, partnership,
Corporation or other entity.
(6) A person shall be the "beneficial owner" of any shares of
Common Stock of the Corporation:
(i) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or indirectly;
or
(ii) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such tight is conditional or
exercisable immediately or only alter the passage of time), pursuant
to any agreement, arrangement or understanding or upon the exercise
of conversion rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing thereof.
(7) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Act of 1934, as in
effect on July 1, 1984.
(8) For the purposes of determining whether a person is a
Selling Stockholder, the number of shares of Common Stock deemed to
be outstanding and the number of shares beneficially owned by the
person shall include shares respectively deemed owned through
application of paragraph (6) of this Section (b) but shall not
include any other shares of Common Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise, or
shares of the Selling Stockholder whose acquisition of more than
three percent of the outstanding shares of Common Stock of the
Corporation within the most recent two-year period results from other
than a purchase or agreement to purchase or vote shares of the
Corporation.
(9) Nothing contained in this ARTICLE TENTH shall be construed
to relieve any Selling Stockholders from any fiduciary obligation
imposed by law.
(10) The Board of Directors of the Corporation shall have the
power to determine the application of or compliance with this ARTICLE
TENTH, including, without limitation, (1) whether a person is a
Selling Stockholder; (2) whether a person is an Affiliate or
Associate of another; (3) whether Section (a) is or has become
applicable in respect of a proposed transaction; (4) what is the
Market Price and whether a price is above Market Price; and (5) when
or whether a purchase or agreement to purchase any share or shares of
Common Stock of the Corporation has occurred and when or whether a
person has become a beneficial owner of any share or shares of Common
Stock of the Corporation. Any decision or action taken by the Board
of Directors arising out of or in connection with the construction,
interpretation and effect of this ARTICLE TENTH shall lie within
their absolute discretion and shall be conclusive and binding except
in circumstances involving band faith.
ARTICLE ELEVENTH
SECTION 1. Vote Required for Certain Business Combinations.
(a) Higher Vote for Certain Business Combinations. In addition to
any affirmative vote required by law or this Certificate of
Incorporation, and except as otherwise expressly provided in Section 2
of this ARTICLE ELEVENTH, any transaction or contract which involves
or includes:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested
Stockholder (as hereinafter defined) or (b) any other Corporation
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having
an aggregate Fair Market Value of $50 million or more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or
any Aff iliate of any Interested Stockholder in exchange for cash,
securities (to the extent the acquisition thereof does not come
within the requirements of ARTICLE TENTH) or other property (or a
combination thereof) having an aggregate Fair Market Value of $50
million or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any Interested
Stockholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger
or consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of Equity Security (as hereinafter
defined) of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or any Affiliate of
any Interested Stockholder:
shall require the affirmative vote of the holders of at least 80% of
the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), voting together as a single class.
Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified
by law or in any agreement with any national securities exchange or
this Certificate of InCorporation exclusive of this ARTICLE ELEVENTH.
(b) Definition of "Business Combination". The term "Business
Combination" used in this ARTICLE ELEVENTH shall mean any transaction
or contract which is referred to in any one or more of clauses (i)
through (v) of paragraph (a) of this Section 1.
SECTION 2. When Higher Vote is Not Required. The provisions of
Section 1 of this ARTICLE ELEVENTH shall not be applicable to any
particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law and any other
provision of this Certificate of Incorporation, if all of the conditions
specified in either of the following paragraphs (a) or (b) are met:
(a) Approval by Directors. The Business Combination shall have been
approved by a majority of the Disinterested Directors (as hereinafter
defined).
(b) Price and Procedure Requirements. All of the following
conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received
per share by holders of Common Stock in such Business Combination
shall be at least equal to the higher of the following:
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for any shares
of Common Stock acquired by it (1) within the two-year period
immediately prior to the first public announcement of the terms
of the proposed Business Combination (the "Announcement Date")
or (2) in the transaction in which it became an Interested
Stockholder, whichever is higher; or
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (such latter date
is referred to in this ARTICLE ELEVENTH as the "Determination
Date"), whichever is higher.
(ii) The aggregate amount of the cash and the Fair Market Value,
as of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of
shares of any other class of outstanding Voting Stock shall be at
least equal to the higher of the following (it being intended that
the requirements of this paragraph (b)(ii) shall be required to be
met with respect to every class of outstanding Voting Stock, whether
or not the Interested Stockholder has previously acquired any shares
of a particular class of Voting Stock):
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for any shares
of such class of Voting Stock acquired by it (1) within the two-
year period immediately prior to the Announcement Date or (2) in
the transaction in which it became an Interested Stockholder,
whichever is higher;
(b) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting
Stock are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; and
(c) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has
previously paid for shares of such class of Voting Stock. If the
Interested Stockholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of consideration
for such class of Voting Stock shall be either cash or the form used
to acquire the largest number of shares of such class of Voting Stock
previously acquired by it. The price determined in accordance with
paragraph (b)(i) and (b)(ii) of this Section 2 shall be subject to
appropriate adjustment in the event of any stock dividend, stock
split, combination of shares or similar event.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination: (a) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to declare
and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) on any outstanding stock having
preference over the Common Stock as to dividends or upon liquidation;
(b) there shall have been (1) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reelect
any subdivision of the Common Stock), except as approved by a
majority of the Disinterested Directors, and (2) an increase in such
annual rate of dividends as necessary to reelect any reclassification
(including any reverse stock split), recapitalization, reorganization
or any similar transaction which has the effect of reducing the
number of outstanding shares of the Common Stock, unless the failure
so to increase such annual rate is approved by a majority of the
Disinterested Directors; and (c) such Interested Stockholder shall
not have become the beneficial owner of any additional shares of
Voting Stock or securities convertible into Voting Stock except as
part of the transaction which results in such Interested Stockholder
becoming an Interested Stockholder.
(v) Alter such Interested Stockholder has become a Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to public stockholders of the
Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions).
SECTION 3. Certain Definitions. For the purpose of this ARTICLE
ELEVENTH:
A. "Person" shall mean any individual, firm, Corporation or other
entity.
B. "Interested Stockholder" shall mean any person (other than (i)
the Corporation, (ii) any Subsidiary or (iii) any stockholder who on the
date of the filing of this Amended and Restated Certificate of
Incorporation is then the beneficial owner, directly or indirectly, of 50%
or more of the voting power of the outstanding Voting Stock) who or which:
(i) is the beneficial owner, directly or indirectly, of 20% or more of
the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within the two-
year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20% or more of the voting
power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has (a)
the right to acquire (whether such right is exercisable immediately or
only alter the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (b) the
right to vote pursuant to any agreement, arrangement or understanding;
or
(iii) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting Stock.
D. For the purpose of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 3, the number of
shares of Voting Stock deemed to be outstanding shall include shares
deemed owned through application of paragraph C of this Section 3 but
shall not include any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise
of conversion rights, warrants or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on July 1, 1984.
F. "Subsidiary" means any Corporation of which a majority of any
class of Equity Security is owned, directly or indirectly, by the
Corporation, provided, however, that for the purposes of the definition of
Interested Stockholder set forth in paragraph B of this Section 3, the
term "Subsidiary" shall mean only a Corporation of which a majority of
each class of Equity Security is owned, directly or indirectly, by the
Corporation.
G. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date
in question of a share of such stock on the Composite Tape for New York
Stock Exchange issues, or, if such stock is not quoted on the Composite
Tape, or the New York Stock Exchange, or, if such stock is not listed on
such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such stock
is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock during
the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by the Disinterested Directors in good faith; and (ii) in the
case of property other than cash or stock, the fair market value of such
property on the date in question as determined by a majority of the
Disinterested Directors.
H. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as
used in paragraphs (b)(i) and (ii) of Section 2 of this ARTICLE ELEVENTH
shall include the shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock retained by the holders of such shares.
I. "Equity Security" shall have the meaning ascribed to such term in
Section 3(a)(11) of the Securities Exchange Act of 1934, as in effect on
July 1, 1984.
J. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Stockholder and was a
member of the Board of Directors prior to the time that the Interested
Stockholder became an Interested Stockholder, and any successor of a
Disinterested Director who is unaffiliated with the Interested Stockholder
and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board of Directors.
SECTION 4. Powers of the Board of Directors. The Board of Directors
shall have the power to interpret all of the terms and provisions of this
ARTICLE ELEVENTH, including, without limitation, and on the basis of
information known to the Board of Directors after reasonable inquiry (A)
whether a person is an Interested Stockholder, (B) the number of shares of
Voting Stock beneficially owned by any person, (C) whether a person is an
Affiliate or Associate of another, (D) whether the assets which are the
subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or
any Subsidiary in any Business Combination has, an aggregate Fair Market
Value of $50 million or more.
SECTION 5. No Effect on Fiduciary Obligations of Interested
Stockholders. Nothing contained in this ARTICLE ELEVENTH shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
SECTION 6. Amendment, Repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-Laws (and
notwithstanding the fact that a lesser percentage may be specified by law,
this Certificate of Incorporation or the By-Laws or otherwise) the
affirmative vote or consent of the holders of 80% or more of the
outstanding Voting Stock voting together as a single class, shall be
required to amend or repeal, or adopt any provisions inconsistent with,
this ARTICLE ELEVENTH or any provision hereof.
ARTICLE TWELFTH
To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a director of this
Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. The
modification or repeal of this ARTICLE TWELFTH shall not affect the
restriction hereunder of a director's personal liability for any breach,
act or omission occurring prior to such modification or repeal.
