_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-A/A
Amendment No. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Reading & Bates Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 73-0642271
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
901 Threadneedle, Suite 200
Houston, Texas 77079
(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is to be
to be so registered be registered
------------------- -------------------------
Common Stock, New York Stock Exchange
Par Value $.05 Pacific Stock Exchange
Per Share
Securities to be registered pursuant to Section 12(g) of the Act: None
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
For a description of the Registrant's common stock, $.05
par value per share, including provisions of the Registrant's
charter and bylaws that would have an effect of delaying, deferring
or preventing a change in control of the Registrant and that would
operate only with respect to an extraordinary corporate transaction,
see the discussion under the caption "Description of Capital Stock"
set forth in the form of Prospectus dated July 23, 1993, included
in the Registration Statement (the "Registration Statement") on
Form S-3 (Reg. No. 33-65476) filed by the Registrant, which
information is incorporated by reference herein.
ITEM 2. EXHIBITS
3.1 The Registrant's Amended and Restated Certificate
of Incorporation.
3.2 The Registrant's by-laws, as amended. (Filed as
Exhibit 4.2 to Registration No. 33-44237 and
incorporated herein by reference.)
_________________________
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly caused
this amendment to be signed on its behalf by the undersigned,
thereto duly authorized.
READING & BATES CORPORATION
Date: May 27, 1994 /s/ Wayne K. Hillin
---------------------
By: Wayne K. Hillin
Senior Vice President,
General Counsel and Secretary
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
READING & BATES CORPORATION
(formerly Reading & Bates Offshore Drilling Company)
FIRST. The name of the Corporation is Reading & Bates
Corporation.
SECOND. Its principal office in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle, Delaware. The
name and address of its resident agent is The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street,
City of Wilmington, County of New Castle, Delaware.
THIRD. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be
organized under the General Corporate Law of the State of
Delaware.
FOURTH. The aggregate number of shares of all classes of
stock which the Corporation shall have authority to issue is
435,000,285, of which 285 shares (less those shares converted
into shares of Common Stock pursuant to the provisions of
this Article FOURTH) shall be Class A (Cumulative
Convertible) Capital Stock, No Par Value (hereinafter called
"Class A Stock"), 10,000,000 shares shall be Preferred Stock
of the Par Value of One Dollar ($1) per share (hereinafter
called "Preferred Stock"), and the remaining 425,000,000
shares shall be Common Stock of the Par Value of Five Cents
($.05) per share (hereinafter called "Common Stock"). The
powers, preferences, privileges, voting and other special or
relative rights, and the qualifications, limitations or
restrictions thereof, granted to or imposed upon the shares
of Class A Stock and Common Stock shall be as fixed in
Sections One through Five of this Article FOURTH, subject,
however, to the provisions of Section Six of this Article
FOURTH. The powers, preferences, privileges, voting and
other special or relative rights, and the qualifications
thereof, granted to or imposed upon the shares of Preferred
Stock shall be as fixed in Section Six of this Article
FOURTH, or as may be fixed by the Board of Directors in
accordance with the provisions thereof.
Section 1. Dividends.
The Class A Stock shall be entitled to receive the
following dividends, but only as and when declared by the
Board of Directors, out of the funds of the Corporation at
the time lawfully available therefor, payable in cash at but
not exceeding the following rates:
(a) cumulative dividends, at the rate of thirty cents
($.30) per share per fiscal year of the
Corporation, which shall be cumulative, and shall
accrue from day to day from the date of issue or
from such other date as may be fixed by the Board
of Directors prior to the issue thereof, whether or
not earned or declared, and shall be payable
quarterly on the last day of March, June, September
and December in each year, except that the first
dividend shall be payable on the quarterly dividend
payment date next succeeding the expiration of 35
days after the date any shares of Class A Stock are
issued; and
(b) non-cumulative dividends, at the rate of an addi-
tional fifty cents ($.50) per share per fiscal year
of the Corporation, which shall be non-cumulative,
and shall be payable only in any fiscal year of the
Corporation in which any dividend (other than a
dividend in shares of Common Stock of the
Corporation) is to be paid or declared on the
Common Stock of the Corporation.
So long as any shares of Class A Stock are outstanding,
in no event shall any dividend or distribution whatsoever
(other than dividends payable in Junior Shares) be paid or
declared upon or in respect of any Junior Shares, nor shall
any moneys be set aside for or applied to the purchase,
redemption or other acquisition or reduction of any Junior
Shares, unless all cumulative dividends on the Class A Stock
required to be paid for all past fiscal years shall have been
paid and both the full cumulative dividend and the full non-
cumulative dividend on the Class A Stock for the then current
fiscal year shall have been paid (or declared and a sum
sufficient for the payment thereof set apart).
If and so long as there are dividends in arrears on any
shares of Class A Stock, the Corporation shall not purchase
any shares of Class A Stock unless an offer to purchase on a
comparable basis is made in writing to the holders of all the
outstanding shares of Class A Stock.
Subject to the foregoing, the Board of Directors may
declare, out of the funds of the Corporation at the time
lawfully available therefor, dividends upon the then
outstanding Junior Shares and no holder of shares of Class A
Stock shall be entitled to share therein.
Arrears in the payment of cumulative dividends shall not
bear interest.
As used in this Article FOURTH, the term "Junior Shares"
shall mean shares of Common Stock and of any other stock of
the Corporation ranking junior with respect to dividends or
assets to the Class A Stock.
Section 2. Distribution on Dissolution.
Upon any liquidation, dissolution or winding up, of the
Corporation, whether voluntary or involuntary, the holders of
the Class A Stock shall be entitled to be paid in cash,
before any distribution shall be made on Junior Shares, an
amount per share equal to the aggregate of (i) $12, plus (ii)
the amount of all unpaid cumulative dividends accrued or in
arrears to the date of payment; but the holders of Class A
Stock shall be entitled to no further participation in any
such distribution, and after such payment to the holders of
Class A Stock, the remaining assets of the Corporation shall
be divided and distributed ratably among the holders of
Junior Shares in accordance with the respective amounts
payable with respect to each class of Junior Shares. If,
upon any such liquidation, dissolution or winding up, the
assets thus distributable among the holders of Class A Stock
shall be insufficient to permit the payment to the holders
thereof of the full preferential amount to which they are
entitled as aforesaid, then the entire assets so
distributable shall be distributed ratably among the holders
of Class A Stock. Neither a consolidation nor a merger of
the Corporation, nor the sale, transfer or lease of all or
substantially all its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation
within the meaning of this Section 2; however, in the event
of a merger or consolidation of the Corporation, the value of
the Class A Stock of the Corporation (for all purposes,
including the requirement of payment of such value as
provided in the General Corporation Law of the State of
Delaware) shall be deemed to be (and each purchaser or holder
of Class A Stock by virtue of such purchase or holding shall
agree that such value shall be) not in excess of an amount
per share equal to the aggregate of (a) $12, plus (b) the
amount of all unpaid cumulative dividends accrued or in
arrears to the date on which the agreement of consolidation
or merger is recorded in the proper county in the State of
Delaware.
Section 3. Conversion of Class A Stock.
The holders of shares of Class A Stock shall have the
right, at their option, to convert such shares into shares of
Common Stock of the Corporation on the following terms and
conditions:
(a) Right of Conversion; Conversion Price. The shares
of Class A Stock shall be convertible, at any time, at the
office of the Corporation's Transfer Agent for the Class A
Stock in Tulsa, Oklahoma, into fully paid and non-assessable
shares (calculated to the nearest 1/100th of a share, frac-
tions of less than 1/100th being disregarded) of Common Stock
of the Corporation, as such shares shall then be constituted,
at the conversion price in effect at the time of conversion
determined as hereinafter provided, each share of Class A
Stock being taken at $12 for the purpose of such conversion.
The price at which shares of Common Stock shall be delivered
upon conversion shall be $3.00 per share of Common Stock,
provided, however, that such conversion price shall be
subject to adjustment from time to time in certain instances
as hereinafter provided (the price at which shares of Common
Stock shall at any particular time be deliverable upon
conversion is hereinafter called the "conversion price" at
such time). The Corporation shall make no payment or
adjustment on account of dividends accrued, whether or not in
arrears, on the shares of Class A Stock surrendered for
conversion or on account of any dividends declared and
payable to the holders of the Common Stock of record on a
date prior to the date of surrender of the Class A Stock for
conversion.
(b) Termination of Conversion Right. In case of the
dissolution, liquidation, winding-up, merger or consolidation
of the Corporation, such right of conversion shall cease and
terminate at the close of business on the third full business
day preceding the date on which such dissolution,
liquidation, winding-up, merger or consolidation shall become
effective.
(c) Surrender and Delivery of Certificates; Effective
Date. Before any holder of shares of Class A Stock shall be
entitled to convert the same into Common Stock, he shall
surrender the certificate or certificates therefor, duly
endorsed, at the office of the Transfer Agent, and shall give
written notice to the Corporation at said office that he
elects to convert the same. The Corporation will, as soon as
practicable thereafter, issue and deliver at said office to
such holder of shares of Class A Stock, or to his nominee or
nominees, certificates for the number of full shares of
Common Stock to which he shall be entitled as aforesaid,
together with a cash payment, scrip certificate or other
evidence of a fractional interest in shares of Common Stock
in lieu of any fraction of a share as hereinafter provided.
Shares of Class A Stock shall be deemed to have been
converted as of the close of business on the date of
surrender of such shares for conversion as provided above,
and the person or persons in whose name or names any
certificate or certificates for Common Stock shall be
issuable upon such conversion shall be deemed to have become
as of the close of business on said date the holder or
holders of record for all purposes of the shares represented
thereby.
(d) Adjustment of Conversion Price on Issue or Sale of
Certain Stock. In case the Corporation shall at any time or
from time to time, issue or sell any shares of Participating
Stock (other than shares of Common Stock issued upon
conversion of shares of Class A Stock) for a consideration
per share less than the conversion price in effect immedi-
ately prior to the time of such issue or sale, said
conversion price shall be adjusted to a price (calculated to
the nearest cent) determined by dividing (i) an amount equal
to the sum of (x) the number of shares of Participating Stock
outstanding immediately prior to such issue or sale
multiplied by the then existing conversion price, plus (y)
the consideration, if any, received by the Corporation upon
such issue or sale by (ii) the total number of shares of
Participating Stock outstanding immediately after such issue
or sale. For the purposes of this Section 3 the number of
shares of Participating Stock outstanding at any given time
shall include shares in the treasury of the Corporation and
shares issuable in respect to scrip certificates or other
evidences of fractional interests in shares of Participating
Stock.
For the purposes of this paragraph (d) the provisions
contained in the following subparagraphs (A) to (F), inclu-
sive, shall also be applicable:
(A) In case at any time the Corporation shall in
any manner grant any rights to subscribe for or to
purchase, or any options for the purchase of (i) Par-
ticipating Stock, or (ii) any stock (other than the
Class A Stock) or other securities convertible into or
exchangeable for Participating Stock (such convertible
or exchangeable stock or securities being hereinafter
called "Convertible Securities"), and the price per
share for which Participating Stock is issuable upon the
exercise of such rights or options or upon conversion or
exchange of such Convertible Securities (determined by
dividing (1) the total amount, if any, received or
receivable by the Corporation as consideration for the
granting of such rights or options, plus the minimum
aggregate amount of additional consideration payable to
the Corporation upon the exercise of such rights or
options, plus, in the case of such Convertible
Securities, the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon
the conversion or exchange thereof, by (2) the total
maximum number of shares of Participating Stock issuable
upon the exercise of such rights or options or upon the
conversion or exchange of all such Convertible Securi-
ties issuable upon the exercise of such rights or
options) shall be less than the conversion price in
effect immediately prior to the time of the granting of
such rights or options, then the total maximum number of
shares of Participating Stock issuable upon the exercise
of such rights or options or upon conversion or exchange
of the total maximum amount of such Convertible
Securities issuable upon the exercise of such rights or
options shall (as of the date of granting of such rights
or options) be deemed to be outstanding and to have been
issued for said price per share; provided that (i) no
further adjustment of the conversion price shall be made
upon the actual issue of such Participating Stock or of
such Convertible Securities upon exercise of such rights
or options or upon the actual issue of such
Participating Stock upon conversion or exchange of such
Convertible Securities, (ii) upon the expiration of such
rights or options, if any thereof shall not have been
exercised, the number of shares of Participating Stock
theretofore deemed to be issued and outstanding in
accordance with the preceding provisions of this
subparagraph (A) shall be reduced by the number of
shares of Participating Stock as to which such rights or
options shall not have been exercised and by the number
of shares of Participating Stock issuable upon
conversion or exchange of the Convertible Securities as
to which such rights or options shall not have been
exercised, and the conversion price shall forthwith be
readjusted upwards accordingly, and (iii) upon the
termination of the right to convert or exchange for
Participating Stock any such Convertible Securities
issued upon exercise of such rights or options, the
number of shares of Participating Stock theretofore
deemed to be issued and outstanding in accordance with
the preceding provisions of this subparagraph (A) shall
be reduced by the number of shares of Participating
Stock as to which such right or conversion or exchange
shall not have been exercised, and the conversion price
shall forthwith be readjusted upwards accordingly.
(B) In case the Corporation shall in any manner
issue or sell any Convertible Securities, and the price
per share for which Participating Stock is issuable upon
conversion or exchange thereof (determined by dividing
(1) the total amount, if any, received or receivable by
the Corporation as consideration for the sale of such
Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to
the Corporation upon the conversion or exchange thereof,
by (2) the total maximum number of shares of
Participating Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be
less than the conversion price in effect immediately
prior to the time of such issue or sale, then the total
maximum number of shares of Participating Stock issuable
upon conversion or exchange of all such Convertible
Securities shall (as of the date of the issue or sale of
such Convertible Securities) be deemed to be outstanding
and to have been issued for said price per share;
provided, however, that (i) if any such issue or sale of
such Convertible Securities is made upon exercise of any
rights to subscribe for or to purchase or any option to
purchase any such Convertible Securities for which an
adjustment of the conversion price has been or is to be
made pursuant to other provisions of this paragraph (d)
no further adjustment of the conversion price shall be
made by reason of such issue or sale or the issue of
such Participating Stock upon conversion or exchange of
such Convertible Securities, and (ii) upon termination
of the right to convert or to exchange such Convertible
Securities for Participating Stock, the number of shares
of Participating Stock theretofore deemed to be issued
and outstanding in accordance with the preceding
provisions of this subparagraph (B) shall be reduced by
the number of shares of Participating Stock as to which
such right of conversion or exchange shall not have been
exercised, and the conversion price shall forthwith be
readjusted upwards accordingly.
(C) In case the Corporation shall pay a dividend or
make any other distribution upon any stock of the
Corporation in Participating Stock or in Convertible
Securities, any Participating Stock or Convertible
Securities, as the case may be, issued in payment of
such dividend or distribution shall be deemed to have
been issued or sold without consideration.
(D) In case any shares of Participating Stock or
Convertible Securities or any rights or options to
purchase any such Stock or Securities shall be issued
for cash, the consideration received therefor shall be
deemed to be the amount received by the Corporation
therefore, without deduction therefrom or any expenses
incurred or any underwriting commissions or concessions
paid or allowed by the corporation in connection
therewith. In case any shares of Participating Stock or
Convertible Securities or any rights or options to
purchase any such Stock or Securities shall be issued
otherwise than for a consideration consisting solely of
cash, then, for the purposes of this paragraph (d), the
Board of Directors of the Corporation shall determine
the fair value of such consideration, and such
Participating Stock, Convertible Securities, rights or
options shall be deemed to have been issued for an
amount of cash equal to the value so determined by the
Board of Directors. In case any shares of Participating
Stock or Convertible Securities or any rights or options
to purchase any such Stock or Securities shall be issued
together with other stock or securities or other assets
of the Corporation for a consideration which is received
for both, the Board of Directors of the Corporation
shall determine what part of the consideration so
received is to be deemed to be the consideration for the
issue of such shares of Participating Stock, Convertible
Securities, rights or options.
(E) In case the Corporation shall take a record of
the holders of its Common Stock for the purpose of
entitling them (1) to receive a dividend or other
distribution payable other than in cash, or (2) to
subscribe for or purchase Participating Stock or Con-
vertible Securities, then such record date shall be
deemed to be the date of the issue or sale of the shares
of Participating Stock deemed to have been issued or
sold upon the declaration of such dividend or the making
of such other distribution or the date of the granting
of such right of subscription or purchase, as the case
may be.
(F) In case the Corporation shall issue or sell
any Participating Stock having voting power (other than
as a result of events of default) on the election of
directors greater than one vote per share (hereinafter
called "Special Voting Securities"), or grant any rights
for the purchase of any Special Voting Securities, or
issue or sell or grant any rights or options for the
purchase of any securities convertible into or
exchangeable for Special Voting Securities, then the
total number of such Special Voting Securities to be
issued or sold or thereafter outstanding shall be deemed
for the purposes of this paragraph (d) to be the number
computed by multiplying (i) the number of such
Securities so to be issued or sold or outstanding by
(ii) the number of votes per security (other than votes
given as a result of event of default) to which each
such security is or would upon issuance or sale be
entitled on the election of directors.
(e) Adjustment of Conversion Price on Declaration of
Property Dividends. In case the Corporation shall declare a
dividend upon the Participating Stock of the Corporation
payable otherwise than in cash, Participating Stock or
Convertible Securities, the conversion price in effect
immediately prior to the declaration of such dividend shall
be reduced by an amount equal to the fair value of the
dividend per share of the Participating Stock outstanding at
the time of such declaration as determined by the Board of
Directors of the Corporation. Such reduction shall take
effect as of the date a record is taken for the purposes of
such dividend, or, if a record is not taken, the date as of
which the holders of Participating Stock to be entitled to
such dividends are to be determined.
(f) Adjustment of Conversion Price on Reorganization,
etc. In the case of any capital reorganization, reclassifi-
cation, substitution, exchange or other alteration in the
terms of the Common Stock of the Corporation or in case of
the consolidation or merger of the Corporation or the
conveyance of all or substantially all of the assets of the
Corporation, each share of the Class A Stock shall thereafter
be convertible into the number of shares of stock or other
securities or property to which a holder of the number of
shares of Common Stock of the Corporation deliverable upon
conversion of such shares of the Class A Stock would have
been entitled upon such reorganization, reclassification,
substitution, change, alteration, consolidation, merger or
conveyance; and, in any such case, appropriate adjustment (as
determined by the Board of Directors) shall be made in the
application of the provisions herein set forth with respect
to the rights and interests thereafter of the holders of the
Class A Stock, to the end that the provisions set forth
herein (including, provisions with respect to adjustments of
the conversion price) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of
stock or other property thereafter deliverable upon
conversion of shares of Class A Stock.
(g) Exception for Minor Adjustments of Conversion
Price. Anything in this Section 3, to the contrary notwith-
standing, the Corporation shall not be required to give
effect to any adjustment in the conversion price unless and
until the net effect of one or more adjustments, determined
as above provided, shall have resulted in a change of the
conversion price by at least twenty-five cents ($.25), but
when the cumulative net effect of more than one adjustment so
determined shall be to change the conversion price by at
least ten cents ($.10), such change in the conversion price
shall thereupon be given effect.
(h) Computation and Notice of Adjustments of Conversion
Price. Whenever the conversion price is adjusted as herein
provided, the Treasurer of the Corporation shall compute the
adjusted conversion price in accordance with this Section 3
and shall prepare a certificate setting forth such adjusted
conversion price and showing in detail the facts upon which
such adjustment is based, including a statement of the
consideration received or to be received by the Corporation
for any additional stock issued or sold or deemed to have
been issued or sold and of the number of shares of Common
Stock outstanding or deemed to be outstanding, and such
certificate shall forthwith be filed with the Transfer Agent.
At the same time the Corporation shall mail to each holder of
record of shares of Class A Stock a notice stating the
adjusted conversion price.
(i) Notice to Holders of Class A Stock in Certain
Events. In case:
(i) the Corporation shall authorize the granting
to the holders of its Common Stock of rights to sub-
scribe for or purchase any shares of stock of any class
or to receive any other rights; or
(ii) of any capital reorganization, reclassifica-
tion, reduction, or other alteration in the terms of the
Common Stock of the Corporation, or in case of the
consolidation or merger of the Corporation or the
conveyance or lease of all or substantially all the
assets of the Corporation; or
(iii) of the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation, then, and in any such case, the Corporation
shall cause to be mailed to the Transfer Agent and to
the holders of record of the outstanding shares of Class
A Stock, at least sixty (60) days prior to the date
hereinafter specified, a notice stating (x) the record
date or other date as of which the holders of Common
Stock to be entitled to such rights are to be
determined, or (y) the estimated date on which such
reclassification, reorganization, reduction, alteration,
consolidation, merger, conveyance, lease, dissolution,
liquidation or winding-up is to become effective.
In case the Corporation shall declare a dividend
(or any other distribution) on the Common Stock, the
Corporation shall cause to be mailed to the Transfer
Agent and to the holders of record of the outstanding
shares of Class A Stock at least fourteen (14) days
prior to the record date or other date as of which the
holders of Common Stock to be entitled to such dividend
or distribution are to be determined a notice stating
such record or other date, the payment for such dividend
or distribution, and the amount thereof.
(j) Reservation of Shares of Common Stock for Issuance
on Conversion. The Corporation shall at all times reserve
and keep available, out of its authorized but unissued Common
Stock, as such Stock shall then be constituted, solely for
the purpose of effecting the conversion of shares of Class A
Stock, the full number of shares of such Common Stock
deliverable upon the conversion of all shares of Class A
Stock from time to time outstanding. The Corporation shall
from time to time, in accordance with the laws of the State
of Delaware, increase the authorized amount of its Common
Stock if at any time the number of authorized shares of
Common Stock remaining unissued shall not be sufficient to
permit the conversion of all the shares of Class A Stock at
the time outstanding.
(k) Provision in Lieu of Fractional Shares. No frac-
tional shares of Common Stock are to be issued upon conver-
sion, but in lieu thereof the Corporation shall:
(i) issue scrip certificates or other evidence of
such fractional interests, for any fraction of a share
which would otherwise be issuable, such certificates or
other evidence of fractional interests to be exchange-
able within such period (which shall end not less than
two years following the date of issue thereof) as the
Board of Directors of the Corporation shall determine,
together with other scrip certificates or other evidence
of fractional interests representing in the aggregate
one or more full shares, for stock certificates
representing such full share or shares, and upon the
expiration of such period to be exchangeable for cash
within such further period (which shall end not less
than six years following the date of issue thereof) and
upon such further terms as the Board of Directors of the
Corporation shall determine; and such scrip certificates
or other evidence of fractional interests to be in such
form and to contain such terms and provisions as shall
be fixed by the Board of Directors on or before the
issuance thereof, provided that they shall not entitle
the bearer or holder thereof to exercise any voting
right, or to receive dividends or to participate in the
assets of the Corporation in the event of liquidation,
dissolution or winding-up, nor to any rights whatever
except as therein expressly set forth; or
(ii) at its option, pay a cash adjustment in
respect of any fraction of a share which would otherwise
be issuable, in any amount equal to the same fraction of
the market price (determined as hereinafter provided)
per share of Common Stock on the day of conversion. For
the purposes of the foregoing, the term "market price"
shall mean the last sale price regular way, or, in case
no such sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case
as officially quoted on a national securities exchange
if the Common Stock is at the time listed thereon, or if
the Common Stock is not at the time so listed, the
average of the closing bid and asked prices as furnished
by any recognized dealer in securities selected by the
Corporation for the purpose.
(l) Payment of Taxes. The Corporation will pay any and
all issue and other taxes that may be payable in respect of
any issue or delivery of shares of Common Stock on conversion
of shares of Class A Stock pursuant hereto. The Corporation
shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that
in which the shares of the Class A Stock so converted were
registered, and no such issue or delivery shall be made
unless and until the person requesting such issue has paid to
the Corporation the amount of any such tax, or has
established, to the satisfaction of the Corporation, that
such tax has been paid.
(m) Limitation on Reduction of Conversion Price. The
Corporation shall not take any action which would, pursuant
to the provisions of this Section 3, reduce the conversion
price to an amount less than the par value per share, if any,
of the Common Stock into which shares of the Class A Stock
are at the time convertible.
(n) Definition of "Participating Stock". As used in
this Section 3 the term "Participating Stock" means (i) any
common stock of the Corporation, (ii) any securities of the
Corporation with no fixed limit on dividends or assets,
including securities of any class which has the right to
share above a stated initial preference in such dividends or
assets, and (iii) any securities (other than the Class A
Stock initially authorized) of any class of the Corporation
having voting power (other than as a result of events of
default) on the election of directors.
(o) Retirement of Converted Shares. All shares of Class
A Stock converted into shares of Common Stock pursuant to
this Section 3 shall not be reissued, and the Corporation
shall cause all such shares to be cancelled and retired, and
(if appropriate) its capital reduced, in the manner provided
by law.
Section 4. Voting Rights.
(a) Number of Votes Per Share; Cumulative Voting.
Except as otherwise expressly provided in this Article FOURTH
or by law, at every meeting of stockholders the Class A Stock
shall be entitled to four votes per share and the Common
Stock shall be entitled to one vote per share. In all
elections for directors each holder of Class A Stock shall
have as many votes as shall equal four times the number of
shares of Class A Stock held by such holder multiplied by the
number of directors to be elected, and any such holder may
cast all such votes for a single candidate or may distribute
them among the candidates as such holder may see fit.
In all elections for directors, commencing with the
Annual Meeting of Stockholders held in 1982, each holder of
Common Stock shall have the right to cast one vote for each
share of Common Stock held by such holder for each of such
number of candidates as there are directors to be elected,
but no such holder of Common Stock shall have any right to
cumulate his votes and cast them for one candidate or dis-
tribute them among two or more candidates.
(b) Class Vote Necessary in Certain Events. In addition
to the vote of the stockholders of the Corporation as
required by paragraph (a) of this Section 4, so long as any
shares of Class A Stock are outstanding the Corporation shall
not, without the affirmative vote at a meeting (at which the
Class A Stock shall vote as a class with one vote per share,
and the notice of which meeting shall state the general
character of the matters to be submitted thereat), or the
written consent with or without a meeting, of the holders of
at least two-thirds of the then outstanding shares of Class A
Stock:
(i) authorize or increase the authorized amount of
any additional class of stock ranking prior to the Class
A Stock as to dividends or assets; or authorize or
increase the authorized amount of any class of
securities or obligations convertible into or evidencing
the right to purchase any class of stock with such
priority; or
(ii) amend, alter or repeal of the provisions of
the Restated Certificate of Incorporation or reduce the
capital of the Corporation so as adversely to affect the
special rights, preferences or powers of the Class A
Stock or its holders; provided, however, that the
amendment of the Restated Certificate of Incorporation
so as to increase the authorized amount of Class A Stock
or to authorize or increase the authorized amount of any
stock which is on a parity with or ranks junior to the
Class A Stock with respect to the payment of dividends
and the distribution of assets shall not be deemed to
affect adversely the special rights, preferences or
powers of the Class A Stock or its holders; or
(iii) merge or consolidate, unless the agreement of
merger or consolidation provides that each share of
Class A Stock outstanding at the time of the merger or
consolidation and in connection therewith shall be
redeemed and shall receive, in full payment in
redemption thereof, an amount of money in cash equal to
the sum of (x) $12, plus (y) the amount of all unpaid
cumulative dividends accrued or in arrears to the
effective date of the merger or consolidation.
For the purposes of determining whether the affirmative
vote at a meeting, or the written consent, required by
this paragraph (b) has been obtained, affirmative votes
at any meeting shall be deemed to be the equivalent of
written consents, and written consents with or without a
meeting shall be deemed to be the equivalent of
affirmative votes at any meeting.
Section 5. Issuance of Common Stock; Preemptive Rights.
Shares of Class A Stock and Common Stock may be issued
at any time and from time to time by the Corporation, and
authority is hereby expressly granted to and vested in the
Board of Directors, to the extent permitted by law, (a) to
issue shares of Class A Stock and Common Stock for such
consideration (in the case of Common Stock at not less than
par value), and in such circumstances as may now or hereafter
be permitted by law, and (b) to determine that only a part of
the consideration so received shall be capital. No holder of
stock of any class of the Corporation shall have any
preemptive right to subscribe for or purchase any part of any
new or additional issue or sale or reservation of stock or
securities of any class or kind whatsoever.
Section 6. Statement of Preferences, Limitations,
and Relative Rights in Respect of Shares of Preferred Stock
and Authority of Board of Directors to fix Designations,
Powers, Preferences, Rights, Qualifications, Limitations and
Restrictions Thereof Not Fixed Hereby.
(a) Shares of Preferred Stock may be issued from time to
time in one or more series as may be determined from time to
time by the Board of Directors, each such series to be
distinctly designated. All shares of any one series of
Preferred Stock so designated by the Board of Directors shall
be alike in every particular. The voting rights, if any, of
each such series, dividend rates, and preferences and
relative, participating, optional and other special rights of
each such series and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any
and all other series at any time outstanding; and, subject to
the provisions of Paragraphs (d) through (h) of this Section
6, the Board of Directors of the Corporation is hereby
expressly granted authority to fix, by resolutions duly
adopted prior to the issuance of any shares of a particular
series of Preferred Stock so designated by the Board of
Directors, the voting powers of stock of such series, if any,
and the designations, preferences and relative,
participating, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the
foregoing, the following:
(i) The rate and times at which, and the terms and
conditions on which, dividends on Preferred Stock of
such series will be paid;
(ii) The right, if any, of the holders of Preferred
Stock of such series to convert the same into, or
exchange the same for, shares of other classes or series
of stock of the Corporation and the terms and conditions
of such conversion or exchange;
(iii) The redemption price or prices and the
time or times at which, and the terms and conditions on
which, Preferred Stock of such series may be redeemed;
(iv) The rights of the holders of Preferred Stock
of such series upon the voluntary or involuntary liqui-
dation, dissolution or winding-up, or merger,
consolidation, distribution or sale of assets, of the
Corporation;
(v) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the Pre-
ferred Stock of such series; and
(vi) Provisions, if any, for the vote or consent of
the holders of a stated percentage of the outstanding
shares of Preferred Stock of such series with respect to
changes in the rights, preferences or limitations of the
shares of such series, or the designation or issuance of
series of the Preferred Stock by the Board of Directors,
or the authorization or issuance of other classes or
series of preferred stock;
provided, however, that the holders of shares of Preferred
Stock shall rank on a parity with, or rank junior to, the
holders of Class A Stock with respect to the payment of
dividends and the distribution of assets of the Corporation
available for distribution to stockholders and shall have no
right to participate with the holders of Common Stock in any
distribution or dividends in excess of the preferential
dividend fixed for such Preferred Stock or in the assets of
the Corporation available for distribution to stockholders in
excess of the preferential amount fixed for such Preferred
Stock.
(b) Until the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with
the provisions of Paragraph (a) of this Section 6) and the
Class A Stock (fixed in Section 1 of this Article FOURTH)
shall have been met and until the Corporation shall have
complied with all the requirements, if any, with respect to
the setting aside of sums as sinking funds or redemption or
purchase accounts with respect to the Preferred Stock (fixed
in accordance with the provisions of Paragraph (a) of this
Section 6), no dividend or distribution shall be paid or
declared upon or in respect of any Common Stock.
(c) Until distribution in full of the preferential
amount to be distributed to the holders of Preferred Stock
(fixed in accordance with the provisions of Paragraph (a) of
this Section 6) and Class A Stock (fixed in Section 1 of this
Article FOURTH) in the event of the voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, no
such distribution shall be made to the holders of Common
Stock.
(d) No holder of Preferred Stock of the Corporation
shall have any preemptive or preferential rights of
subscription to any shares of any stock of the Corporation of
any class, now or hereafter authorized, or to any obligations
convertible into stock of the Corporation, issued or sold,
nor any right of subscription to any thereof other than such,
if any, as the Board of Directors of the Corporation in its
discretion from time to time may determine, and at such price
as the Board of Directors from time to time may fix, pursuant
to the authority hereby conferred by the Restated Certificate
of Incorporation, and the Board of Directors may issue stock
of the Corporation, or obligations convertible into stock,
without offering such issue of stock or such obligations,
either in whole or in part, to the holders of Preferred Stock
of the Corporation.
(e) The powers and rights of the holders of Common Stock
shall be subordinated to the powers, preferences and rights
of the holders of Preferred Stock. The relative powers,
preferences and rights of each series of Preferred Stock in
relation to the powers, preferences and rights of each other
series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors pursuant to
authority granted in the Restated Certificate of
Incorporation; provided, however, that except as may be
provided by law and except as set forth in Paragraph (f) and
Paragraph (g) of this Section 6, no holder of shares of
Preferred Stock of any series shall be entitled to more than
one vote in respect of each share of such stock held by him
on any matter voted on by stockholders other than elections
of directors, in which case the Board of Directors may accord
cumulative voting rights to holders of shares of any series
of Preferred Stock.
(f) Notwithstanding the provisions of Paragraph (e) of
this Section 6, the Board of Directors, acting pursuant to
authority granted in this Restated Certificate of
Incorporation in respect of any series of Preferred Stock,
may provide that if this Corporation shall have defaulted in
the payment of dividends on any such series of Preferred
Stock in any amount equivalent to or exceeding six full
quarterly dividends (whether or not consecutive) or the
Corporation shall have defaulted in making any two mandatory
sinking fund payments on any such series of Preferred Stock,
the holders of one or more or all of such series of Preferred
Stock in respect of which any such default shall have
occurred (voting as a single class together with the holders
of Class A Stock) shall be entitled to elect, in the
aggregate, not more than two directors.
(g) The issuance of shares of any series of Preferred
Stock by the Board of Directors of the Corporation shall be
subject to such limitations and restrictions as may be
provided for in the Restated Certificate of Incorporation or
by the Board of Directors, pursuant to authority granted in
the Restated Certificate of Incorporation, including
provision for the consent, by class vote, of the holders of a
stated percentage of the outstanding shares of any series of
Preferred Stock.
(h) Subject to the provisions of Paragraph (g) of this
Section 6, shares of any series of Preferred Stock may be
authorized or issued, in aggregate amounts not exceeding the
total number of shares of Preferred Stock authorized by the
Restated Certificate of Incorporation, from time to time as
the Board of Directors of the Corporation shall determine and
for such consideration as shall be fixed by the Board of
Directors.
(i) $1.625 Convertible Preferred Stock:
1. Number Of Shares and Designation. 2,990,000
shares of the Preferred Stock, $1.00 par value per share, of
the Corporation are hereby constituted as a series of the
preferred stock designated as "$1.625 Convertible Preferred
Stock".
2. Definitions. For purposes of the $1.625
Convertible Preferred Stock, the following terms shall have
the meanings indicated:
"Board of Directors" shall mean the Board of
Directors of the Corporation or any committee authorized
by such Board of Directors to perform any of its
responsibilities with respect to the $1.625 Convertible
Preferred Stock.
"Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions
in the City of New York are authorized or obligated by
law or executive order to close.
"Change of Control" shall have the meaning set
forth in paragraph (e)(i) of subsection 8 of this
Paragraph (i).
"Closing Price" with respect to a particular
security on any day shall mean on such day the
reported last sales price, regular way, for such
security or, in case no sale takes place on such
day, the average of the reported closing bid and
asked prices, regular way, for such security in
either case as reported on the New York Stock
Exchange, on the principal national securities
exchange on which such security is listed or
admitted to trading or, if not listed or admitted
to trading on any national securities exchange, on
the National Market System of the National
Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ National Market System")
or, if such security is not quoted on the NASDAQ
National Market System, the average of the closing
bid and asked prices for such security in the over-
the-counter market as reported by NASDAQ or, if bid
and asked prices for such security on each such
date shall not have been reported by NASDAQ, the
average of the bid and asked prices for such
security for such day as furnished by any New York
Stock Exchange member firm regularly making a
market in such security selected for such purpose
by the board of directors or similar governing body
of the issuer of such security or, if no such
quotations are available, the fair market value of
such security furnished by any New York Stock
Exchange member firm selected from time to time by
the board of directors or similar governing body of
the issuer of such security for that purpose.
"Conversion Price" shall mean the conversion price
per share of Common Stock into which the $1.625
Convertible Preferred Stock is convertible, as such
Conversion Price may be adjusted pursuant to subsection
7 of this Paragraph (i). The initial Conversion Price
will be $8.625 (equivalent to the rate of 2.899 shares
of Common Stock for each share of $1.625 Convertible
Preferred Stock).
"Current Market Price" per share of Common Stock on
any date shall mean the average of the daily Closing
Prices for the 30 consecutive Trading Dates commencing
45 Trading Dates before the date of determination.
"Defaulted Preferred Stock" shall have the meaning
set forth in paragraph (a) of subsection 10 of this
Paragraph (i).
"dividend payment date" shall have the meaning set
forth in paragraph (a) of subsection 3 of this Paragraph
(i).
"dividend payment record date" shall have the
meaning set forth in paragraph (a) of subsection 3 of
this Paragraph (i).
"Dividend Periods" shall mean quarterly dividend
periods commencing on the first day of January, April,
July and October of each year and ending on and
including the day preceding the first day of the next
succeeding Dividend Period (other than the initial
Dividend Period which shall commence on the Issue Date
and end on and include September 30, 1993).
"Fundamental Change" shall have the meaning set
forth in paragraph (e)(ii) of subsection 8 of this
Paragraph (i).
"Issue Date" shall mean the first date on which
shares of $1.625 Convertible Preferred Stock are
issued.
"Person" shall mean any individual, firm,
partnership, corporation or other entity, and shall
include any successor (by merger or otherwise) of such
entity.
"Redemption Price" shall have the meaning set forth
in paragraph (a) of subsection 5 of this Paragraph (i).
"Securities" shall have the meaning set forth in
paragraph (d)(iii) of subsection 7 of this Paragraph (i)
"Trading Date" with respect to any security means
(i) if such security is listed or admitted for trading
on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock
Exchange or such other national securities exchange is
open for trading, (ii) if such security is quoted on the
NASDAQ National Market System, or any similar system of
automated dissemination of quotations of securities
prices, a day on which trades may be made on such
system, (iii) if not quoted as described in clause (ii),
days on which quotations are reported by the National
Quotation Bureau Incorporated or (iv) otherwise, any
Business Day.
"Transaction" shall have the meaning set forth in
paragraph (e) of subsection 7 of this Paragraph (i).
"Transfer Agent" means American Stock Transfer &
Trust Company, New York, New York or such other agent or
agents of the Corporation as may be designated by the
Board of Directors as the transfer agent or conversion
agent for the $1.625 Convertible Preferred Stock.
3. Dividends. (a) The holders of shares of the
$1.625 Convertible Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cumulative cash
dividends at an annual rate of $1.625 per share of $1.625
Convertible Preferred Stock. Such dividends shall be
cumulative from the Issue Date, whether or not in any
Dividend Period or Periods there shall be funds of the
Corporation legally available for the payment of such
dividends and whether or not such dividends are declared, and
shall be payable quarterly, when, as and if declared by the
Board of Directors, on March 31, June 30, September 30 and
December 31 in each year (each a "dividend payment date"),
commencing on September 30, 1993. If any dividend payment
date shall be on a day other than a Business Day, then the
dividend payment date shall be on the next succeeding
Business Day. Each such dividend shall be payable in arrears
to the holders of record of shares of the $1.625 Convertible
Preferred Stock, as they appear on the stock records of the
Corporation at the close of business on those dates (each
such date, a "dividend payment record date"), not less than
10 days nor more than 60 days preceding the dividend payment
dates thereof, as shall be fixed by the Board of Directors.
Dividends on the $1.625 Convertible Preferred Stock shall
accrue (whether or not declared) on a daily basis from the
Issue Date and accrued dividends for each Dividend Period
shall accumulate to the extent not paid on the dividend
payment date first following the Dividend Period for which
they accrue. As used herein, the term "accrued" with respect
to dividends includes both accrued and accumulated dividends.
Accrued and unpaid dividends for any past Dividend Periods
may be declared and paid at any time, without reference to
any regular dividend payment date, to holders of record on
such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full
Dividend Period for the $1.625 Convertible Preferred Stock
shall be computed by dividing the annual dividend amount by
four (rounded down to the nearest cent). The amount of
dividends payable for the initial Dividend Period on the
$1.625 Convertible Preferred Stock and any other period
shorter or longer than a full Dividend Period on the $1.625
Convertible Preferred Stock shall be computed on the basis of
a 360-day year consisting of twelve 30-day months. Holders
of shares of $1.625 Convertible Preferred Stock called for
redemption on a redemption date falling between the close of
business on a dividend payment record date and the opening of
business on the corresponding dividend payment date shall, in
lieu of receiving such dividend on the dividend payment date
fixed therefor, receive such dividend payment together with
all other accrued and unpaid dividends on the date fixed for
redemption (unless such holder converts such shares in
accordance herewith). Holders of shares of $1.625
Convertible Preferred Stock shall not be entitled to any
dividends, whether payable in cash, property or securities,
in excess of cumulative dividends, as herein provided, on the
$1.625 Convertible Preferred Stock. No interest, or sum of
money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the $1.625 Convertible
Preferred Stock which are in arrears.
(c) So long as any shares of the $1.625
Convertible Preferred Stock are outstanding, no dividends,
except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or
series of stock of the Corporation ranking, as to dividends,
on a parity with the $1.625 Convertible Preferred Stock, for
any period unless full cumulative dividends on all
outstanding shares of $1.625 Convertible Preferred Stock have
been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for
such payment for all Dividend Periods terminating on or prior
to the date of payment, or setting apart for payment, of such
full cumulative dividends on such parity stock. When
dividends are not paid in full or a sum sufficient for such
payment is not set apart, as aforesaid, upon the shares of
the $1.625 Convertible Preferred Stock and any other class or
series of stock ranking on a parity as to dividends with the
$1.625 Convertible Preferred Stock, all dividends declared
upon shares of the $1.625 Convertible Preferred Stock and all
dividends declared upon such other stock shall be declared
and paid pro rata so that the amounts of dividends per share
declared and paid on the $1.625 Convertible Preferred Stock
and such other stock shall in all cases bear to each other
the same ratio that accrued and unpaid dividends per share on
the shares of the $1.625 Convertible Preferred Stock and on
such other stock bear to each other.
(d) So long as any shares of the $1.625
Convertible Preferred Stock are outstanding, no other stock
of the Corporation ranking on a parity with the $1.625
Convertible Preferred Stock as to dividends or upon
liquidation, dissolution or winding up shall be redeemed,
purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund or
otherwise for the purchase or redemption of any shares of
any such stock) by the Corporation (except by conversion into
or exchange for stock of the Corporation ranking junior to
the $1.625 Convertible Preferred Stock as to dividends and
upon liquidation, dissolution or winding up) unless (i) the
full cumulative dividends, if any, accrued on all outstanding
shares of the $1.625 Convertible Preferred Stock shall have
been paid or set apart for payment for all past Dividend
Periods and (ii) sufficient funds shall have been set apart
for the payment of the dividend for the current Dividend
Period with respect to the $1.625 Convertible Preferred
Stock.
(e) So long as any shares of the $1.625
Convertible Preferred Stock are outstanding, no dividends
(other than dividends or distributions paid in shares of
Common Stock or other stock ranking junior to the $1.625
Convertible Preferred Stock as to dividends and upon
liquidation, dissolution or winding up) shall be declared or
paid or set apart for payment and no other distribution shall
be declared or made or set apart for payment, in each case
upon the Common Stock or any other stock of the Corporation
ranking junior to the $1.625 Convertible Preferred Stock as
to dividends or upon liquidation, dissolution or winding up,
nor shall any Common Stock nor any other such stock of the
Corporation ranking junior to the $1.625 Convertible
Preferred Stock as to dividends or upon liquidation,
dissolution or winding up be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or
made available for a sinking fund or otherwise for the
purchase or redemption of any shares of any such stock) by
the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to the $1.625
Convertible Preferred Stock as to dividends and upon
liquidation, dissolution or winding up) unless, in each case
(i) the full cumulative dividends, if any, accrued on all
outstanding shares of the $1.625 Convertible Preferred Stock
and any other stock of the Corporation ranking on a parity
with the $1.625 Convertible Preferred Stock as to dividends
shall have been paid or set apart for payment for all past
Dividend Periods and all past dividend periods with respect
to such other stock and (ii) sufficient funds shall have been
set apart for the payment of the dividend for the current
Dividend Period with respect to the $1.625 Convertible
Preferred Stock and for the current dividend period with
respect to any other stock of the Corporation ranking on a
parity with the $1.625 Convertible Preferred Stock as to
dividends.
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary, before any payment or distribution of the assets
of the Corporation (whether capital or surplus) shall be made
to or set apart for the holders of Common Stock or any other
series or class or classes of stock of the Corporation
ranking junior to the $1.625 Convertible Preferred Stock upon
liquidation, dissolution or winding up, the holders of the
shares of $1.625 Convertible Preferred Stock shall be
entitled to receive $25.00 per share plus an amount per share
equal to all dividends (whether or not earned or declared)
accrued and unpaid thereon to the date of final distribution
to such holders; but such holders shall not be entitled to
any further payment. No payment on account of any
liquidation, dissolution or winding up of the Corporation
shall be made to the holders of any class or series of stock
ranking on a parity with the $1.625 Convertible Preferred
Stock in respect of the distribution of assets upon
dissolution, liquidation or winding up unless there shall
likewise be paid at the same time to the holders of the
$1.625 Convertible Preferred Stock like proportionate amounts
determined ratably in proportion to the full amounts to which
the holders of all outstanding shares of $1.625 Convertible
Preferred Stock and the holders of all outstanding shares of
such parity stock are respectively entitled with respect to
such distribution. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation,
or proceeds thereof, distributable among the holders of the
shares of $1.625 Convertible Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid
and liquidating payments on any other shares of stock
ranking, as to liquidation, dissolution or winding up, on a
parity with the $1.625 Convertible Preferred Stock, then such
assets, or the proceeds thereof, shall be distributed among
the holders of shares of $1.625 Convertible Preferred Stock
and any such other stock ratably in accordance with the
respective amounts which would be payable on such shares of
$1.625 Convertible Preferred Stock and any such other stock
if all amounts payable thereon were paid in full. For the
purposes of this subsection 4, neither a consolidation or
merger of the Corporation with one or more corporations or
other entities nor a sale, lease, exchange or transfer of all
or any part of the Corporation's assets for cash, securities
or other property shall be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares
of any series or class or classes of stock ranking on a
parity with or prior to the $1.625 Convertible Preferred
Stock upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation,
after payment shall have been made in full to the holders of
$1.625 Convertible Preferred Stock, as provided in this
subsection 4, any other series or class or classes of stock
ranking junior to the $1.625 Convertible Preferred Stock upon
liquidation, dissolution or winding up shall, subject to the
respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid
or distributed, and the holders of $1.625 Convertible
Preferred Stock shall not be entitled to share therein.
(c) Written notice of any liquidation, dissolution
or winding up of the Corporation, stating the payment date
or dates when and the place or places where the amounts
distributable in such circumstances shall be payable, shall
be given by first class mail, postage prepaid, not less than
30 days prior to any payment date stated therein, to the
holders of record of the $1.625 Convertible Preferred Stock
at their respective addresses as the same shall appear on the
stock records of the Corporation.
5. Redemption at the Option of the Corporation.
(a) $1.625 Convertible Preferred Stock may not be
redeemed by the Corporation prior to September 30, 1996. On
or after such date the Corporation, at its option, may redeem
the shares of $1.625 Convertible Preferred Stock, in whole or
in part, out of funds legally available therefor, at any time
or from time to time, subject to the notice provisions and
provisions for partial redemption described below, during the
twelve-month periods beginning on September 30 in each of the
following years at the following redemption prices per share
plus an amount equal to accrued and unpaid dividends, if any,
to (and including) the date fixed for redemption, whether or
not earned or declared (the "Redemption Price").
<TABLE>
<CAPTION>
Year Price per share
<S> <C>
1996 26.1375
1997 25.9750
1998 25.8125
1999 25.6500
2000 25.4875
2001 25.3250
2002 25.1625
2003 and thereafter 25.0000
</TABLE>
(b) In the event the Corporation shall redeem
shares of $1.625 Convertible Preferred Stock, notice of such
redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior
to the redemption date, to each holder of record of the
shares to be redeemed, at such holder's address as the same
appears on the stock records of the Corporation. Each such
notice shall state: (i) the redemption date; (ii) the number
of shares of $1.625 Convertible Preferred Stock to be
redeemed and, if less than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed
from such holder; (iii) the Redemption Price; (iv) the place
or places where certificates for such shares are to be
surrendered for payment of the redemption price; (v) the
then current Conversion Price; and (vi) that dividends on the
shares to be redeemed shall cease to accrue on such
redemption date. If, on the date fixed for redemption, funds
necessary for the redemption shall be available therefor and
shall have been irrevocably deposited or set aside, then,
notwithstanding that the certificates evidencing any shares
of $1.625 Convertible Preferred Stock so called for
redemption shall not have been surrendered, the dividends
with respect to the shares so called shall cease to accrue
after the date fixed for redemption, such shares shall no
longer be deemed outstanding, all rights of the holders of
such shares as stockholders of the Company shall cease, and
all rights whatsoever with respect to the shares so called
for redemption (except the right of the holders to receive
the Redemption Price without interest upon surrender of their
certificates therefor) shall terminate.
Upon surrender in accordance with said notice of
the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors
shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the applicable
Redemption Price aforesaid. If fewer than all the
outstanding shares of $1.625 Convertible Preferred Stock are
to be redeemed, shares to be redeemed shall be selected by
the Corporation from outstanding shares of $1.625 Convertible
Preferred Stock not previously called for redemption by lot
or pro rata (as near as may be) or by any other method
determined by the Board of Directors of the Corporation in
its sole discretion to be equitable. If fewer than all the
shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
In the event that the Corporation has failed to pay
accrued and unpaid dividends on the $1.625 Convertible
Preferred Stock, it may not redeem less than all of the then
outstanding shares of the $1.625 Convertible Preferred Stock
until all such accrued and unpaid dividends and the then
current quarterly dividends have been paid in full.
Notwithstanding the foregoing, if notice of
redemption has been given pursuant to this subsection 5 and
any holder of shares of $1.625 Convertible Preferred Stock
shall, prior to the close of business on the redemption date,
give written notice to the Corporation pursuant to
subsection 7(b) of this Paragraph (i) of the conversion of
any or all of the shares to be redeemed held by such holder
(accompanied by a certificate or certificates for such
shares, duly endorsed or assigned to the Corporation), then
(i) the Corporation shall not have the right to redeem such
shares, (ii) the conversion of such shares to be redeemed
shall become effective as provided in subsection 7 of this
Paragraph (i) and (iii) any funds which shall have been
deposited for the payment of the Redemption Price for such
shares shall be returned to the Corporation immediately after
such conversion (subject to declared dividends payable to
holders of shares of $1.625 Convertible Preferred Stock on
the dividend payment record date for such dividends being so
payable, to the extent set forth in subsection 7 of this
Paragraph (i), regardless of whether such shares are
converted subsequent to such dividend payment record date and
prior to the related dividend payment date).
6. Shares to be Retired. All shares of $1.625
Convertible Preferred Stock purchased, redeemed, exchanged or
converted by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but
unissued shares of Preferred Stock, without designation as to
series, and may thereafter be reissued.
7. Conversion. Holders of shares of $1.625
Convertible Preferred Stock shall have the right to convert
all or a portion of such shares into shares of Common Stock,
as follows:
(a) Subject to and upon compliance with the
provisions of this subsection 7, a holder of shares of $1.625
Convertible Preferred Stock shall have the right, at such
holder's option, at any time to convert all or any of such
shares into the number of fully paid and nonassessable shares
of Common Stock (calculated as to each conversion to the
nearest 1/100th of a share) obtained by dividing the
aggregate liquidation preference of the shares to be
converted by the Conversion Price and by surrender of such
shares, such surrender to be made in the manner provided in
paragraph (b) of this subsection 7; provided, however, that
the right to convert shares called for redemption pursuant to
subsection 5 of this Paragraph (i) shall terminate at the
close of business on the date fixed for such redemption. No
share of $1.625 Convertible Preferred Stock may be converted
in part into Common Stock.
(b) In order to exercise the conversion right, the
holder of each share of $1.625 Convertible Preferred Stock to
be converted shall surrender the certificate representing
such share, duly endorsed or assigned to the Corporation or
in blank, at the office of the Transfer Agent in the Borough
of Manhattan, City of New York, accompanied by written notice
to the Corporation that the holder thereof elects to convert
such share of $1.625 Convertible Preferred Stock. Unless the
shares issuable on conversion are to be issued in the same
name as the name in which such share of $1.625 Convertible
Preferred Stock is registered, each share surrendered for
conversion shall be accompanied by instruments of transfer,
in form satisfactory to the Corporation, duly executed by the
holder or such holder's duly authorized attorney and an
amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid or are not
required to be paid).
Holders of shares of $1.625 Convertible Preferred
Stock at the close of business on a dividend payment record
date shall be entitled to receive the dividend payable on
such shares on the corresponding dividend payment date
(except that holders of shares called for redemption on a
redemption date falling between the close of business on such
dividend payment record date and the opening of business on
the corresponding dividend payment date shall, in lieu of
receiving such dividend on the dividend payment date fixed
therefor, receive such dividend payment together with all
other accrued and unpaid dividends on the date fixed for
redemption, unless such holders convert such shares called
for redemption in accordance herewith) notwithstanding the
conversion thereof following such dividend payment record
date and prior to such dividend payment date. However,
shares of $1.625 Convertible Preferred Stock surrendered for
conversion during the period between the close of business on
any dividend payment record date and the opening of business
on the corresponding dividend payment date (except shares of
$1.625 Convertible Preferred Stock called for redemption on a
redemption date during such period) must be accompanied by
payment of an amount equal to the dividend payment with
respect to such shares of $1.625 Convertible Preferred Stock
presented for conversion on such dividend payment date. A
holder of shares of $1.625 Convertible Preferred Stock on a
dividend payment record date who (or whose transferee)
surrenders any such shares for conversion into shares of
Common Stock on the corresponding dividend payment date will
receive the dividend payable by the Corporation on such
shares of $1.625 Convertible Preferred Stock on such date and
the converting holder need not include payment in the amount
of such dividend upon surrender of shares of $1.625
Convertible Preferred Stock for conversion on the dividend
payment date. Except as provided in this paragraph, the
Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares of
$1.625 Convertible Preferred Stock or for dividends on the
shares of Common Stock issued upon such conversion.
As promptly as practicable after the surrender of
certificates for shares of $1.625 Convertible Preferred Stock
as aforesaid, the Corporation shall issue and shall deliver
at such office to such holder, or on such holder's written
order, a certificate or certificates for the number of shares
of Common Stock issuable upon the conversion of such shares
in accordance with the provisions of this subsection 7, and
any fractional interest in respect of a share of Common Stock
arising upon such conversion shall be settled as provided in
paragraph (c) of this subsection 7.
Each conversion shall be deemed to have been
effected immediately prior to the close of business on the
date on which the certificates for shares of $1.625
Convertible Preferred Stock shall have been surrendered and
such notice received by the Corporation as aforesaid, and the
person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby
at such time on such date and such conversion shall be at the
Conversion Price in effect at such time on such date, unless
the stock transfer books of the Corporation shall be closed
on that date, in which event such person or persons shall be
deemed to have become such holder or holders of record at the
close of business on the next succeeding day on which such
stock transfer books are open, but such conversion shall be
at the Conversion Price in effect on the date upon which such
shares shall have been surrendered and such notice received
by the Corporation. All shares of Common Stock delivered
upon conversion of the $1.625 Convertible Preferred Stock
will upon delivery be duly and validly issued and fully paid
and nonassessable.
(c) In connection with the conversion of any
shares of $1.625 Convertible Preferred Stock, no fractional
shares or scrip representing fractions of shares of Common
Stock shall be issued upon conversion of the $1.625
Convertible Preferred Stock. Instead of any fractional
interest in a share of Common Stock which would otherwise be
deliverable upon the conversion of a share of $1.625
Convertible Preferred Stock, the Corporation shall pay to the
holder of such share an amount in cash (computed to the
nearest cent) equal to the Closing Price of Common Stock on
the Trading Date immediately preceding the date of conversion
multiplied by the fraction of a share of Common Stock
represented by such fractional interest. If more than one
share of $1.625 Convertible Preferred Stock shall be
surrendered for conversion at one time by the same holder,
the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the
aggregate number of shares of $1.625 Convertible Preferred
Stock so surrendered.
(d) The Conversion Price shall be adjusted from
time to time as follows:
(i) In case the Corporation shall after the
Issue Date (A) pay a dividend or make a
distribution on its Common Stock that is paid or
made (1) in shares of its Common Stock or (2) in
rights to purchase stock or other securities if
such rights are not separable from the Common Stock
except upon the occurrence of a contingency, (B)
subdivide or split its outstanding Common Stock
into a greater number of shares, (C) combine its
outstanding Common Stock into a smaller number of
shares or (D) issue any shares of capital stock by
reclassification of its Common Stock, the
Conversion Price in effect immediately prior
thereto shall be adjusted or (in the case of clause
(A)(2)) other provision shall be made so that the
holder of any share of $1.625 Convertible Preferred
Stock thereafter surrendered for conversion shall
be entitled to receive the number of shares of
Common Stock of the Corporation and rights to
purchase stock or other securities which such
holder would have owned or have been entitled to
receive after the occurrence of any of the events
described above had such share been surrendered for
conversion immediately prior to the occurrence of
such event or the record date therefor, whichever
is earlier. In the event of the redemption of any
rights referred to clause (A), such holder shall
have the right to receive, in lieu of any such
rights, any cash, property or securities paid in
respect of such redemption; provided, however, that
if the value of such cash, property or securities
is less than $.10 per share of Common Stock, such
holder shall not be entitled to such cash, property
or securities. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately
after the close of business on the record date for
determination of stockholders entitled to receive
such dividend or distribution in the case of a
dividend or distribution (except as provided in
paragraph (h) below) and shall become effective
immediately after the close of business on the
effective date in the case of a subdivision, split,
combination or reclassification. Any shares of
Common Stock issuable in payment of a dividend
shall be deemed to have been issued immediately
prior to the close of business on the record date
for such dividend for purposes of calculating the
number of outstanding shares of Common Stock under
clauses (ii) and (iii) below.
(ii) In case the Corporation shall issue after
the Issue Date rights or warrants to all holders of
Common Stock entitling them (for a period expiring
within 45 days after the issuance date) to
subscribe for or purchase Common Stock at a price
per share less than the Current Market Price per
share of Common Stock at the record date for the
determination of stockholders entitled to receive
such rights or warrants, then the Conversion Price
in effect immediately prior thereto shall be
adjusted to equal the price determined by
multiplying (A) the Conversion Price in effect
immediately prior to the date of issuance of such
rights or warrants by (B) a fraction, the numerator
of which shall be the sum of (1) the number of
shares of Common Stock outstanding on the date of
issuance of such rights or warrants (without giving
effect to any such issuance) and (2) the number of
shares which the aggregate proceeds from the
exercise of such rights or warrants for Common
Stock would purchase at such Current Market Price,
and the denominator of which shall be the sum of
(1) the number of shares of Common Stock
outstanding on the date of issuance of such rights
or warrants (without giving effect to any such
issuance) and (2) the number of additional shares
of Common Stock offered for subscription or
purchase. Such adjustment shall be made
successively whenever any such rights or warrants
are issued, and shall become effective immediately
after such record date. In determining whether any
rights or warrants entitle the holders of Common
Stock to subscribe for or purchase shares of Common
Stock at less than such Current Market Price, there
shall be taken into account any consideration
received by the Corporation upon issuance and upon
exercise of such rights or warrants, the value of
such consideration, if other than cash, to be
determined by the Board of Directors (whose
determination shall, if made in good faith, be
conclusive).
(iii) In case the Corporation shall pay a
dividend or make a distribution to all holders of
its Common Stock after the Issue Date of any shares
of capital stock of the Corporation or its
subsidiaries (other than Common Stock) or evidences
of its indebtedness or assets, including securities
(any of the foregoing being hereinafter in this
subparagraph (iii) called the "Securities"), but
excluding rights, warrants, dividends and
distributions referred to in subparagraphs (i) and
(ii) above, regular periodic cash dividends payable
out of the Corporation's surplus that may from time
to time be fixed by the Board of Directors and
dividends and distributions in connection with the
liquidation, dissolution or winding up of the
Corporation, then in each such case, the Conversion
Price shall be adjusted so that it shall equal the
price determined by multiplying (A) the Conversion
Price in effect on the record date mentioned below
by (B) a fraction, the numerator of which shall be
the Current Market Price per share of the Common
Stock on the record date mentioned below less the
then fair market value as determined by the Board
of Directors (whose determination shall, if made in
good faith, be conclusive) as of such record date
of the portion of the Securities applicable to one
share of Common Stock, and the denominator of which
shall be the Current Market Price per share of the
Common Stock on such record date; provided,
however, that in the event the then fair market
value (as so determined) of the portion of
Securities so distributed applicable to one share
of Common Stock is equal to or greater than the
Current Market Price per share of Common Stock on
the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be
made so that each holder of shares of $1.625
Convertible Preferred Stock shall have the right to
receive the amount and kind of Securities such
holder would have received had such holder
converted each such share of $1.625 Convertible
Preferred Stock immediately prior to the record
date for the distribution of the Securities.
Except as provided in paragraph (h) below, such
adjustment shall become effective immediately after
the record date for the determination of
stockholders entitled to receive such distribution.
(iv) Notwithstanding anything in subparagraph
(ii) above, if such rights or warrants shall by
their terms provide for an increase or increases
with the passage of time or otherwise in the price
payable to the Corporation upon the exercise
thereof, the Conversion Price upon any such
increase becoming effective shall forthwith be
readjusted (but to no greater extent than
originally adjusted by reason of such issuance or
sale) to reflect the same. Upon the expiration or
termination of such rights or warrants, if any such
rights or warrants shall not have been exercised,
then the Conversion Price shall forthwith be
readjusted and thereafter be the rate which it
would have been had an adjustment been made on the
basis that (A) the only rights or warrants so
issued or sold were those so exercised and they
were issued or sold for the consideration actually
received by the Corporation upon such exercise plus
the consideration, if any, actually received by the
Corporation for the granting of all such rights or
warrants whether or not exercised and (B) the
Corporation issued and sold a number of shares of
Common Stock equal to those actually issued upon
exercise of such rights or warrants, and such
shares were issued and sold for a consideration
equal to the aggregate exercise price in effect
under the rights or warrants actually exercised at
the respective dates of their exercise. For
purposes of subparagraph (ii), the aggregate
consideration received by the Corporation in
connection with the issuance of shares of Common
Stock or of rights or warrants shall be deemed to
be equal to the sum of the aggregate offering price
(before deduction of underwriting discounts or
commissions and expenses payable to third parties)
of all such securities plus the minimum aggregate
amount, if any, payable upon the exercise of such
rights or warrants into shares of Common Stock.
(v) No adjustment in the Conversion Price shall
be required unless such adjustment would require an
increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by
reason of this subparagraph (v) are not required to
be made shall be carried forward and taken into
account in any subsequent adjustment; and provided,
however, that any adjustment shall be required and
shall be made in accordance with the provisions of
this subsection 7 (other than this subparagraph
(v)) not later than such time as may be required in
order to preserve the tax-free nature of a
distribution to the holder of shares of Common
Stock. All calculations under this subsection 7
shall be made to the nearest cent (with $.005 being
rounded upward) or to the nearest 1/100th of a
share (with .005 of a share being rounded upward),
as the case may be. Anything in this paragraph (d)
to the contrary notwithstanding, the Corporation
shall be entitled, to the extent permitted by law,
to make such reductions in the Conversion Price, in
addition to those required by this paragraph (d),
as it in its discretion shall determine to be
advisable in order that any stock dividend,
subdivision of shares, distribution of rights or
warrants to purchase stock or securities, or a
distribution of other assets or any other
transaction which could be treated as any of the
foregoing transactions pursuant to Section 305 of
the Internal Revenue Code of 1986, as amended,
hereafter made by the Corporation to its
stockholders shall not be taxable to such
stockholders.
(e) In case the Corporation shall be a party to
any transaction (including without limitation a merger,
consolidation, statutory share exchange, sale of all or
substantially all of the Corporation's assets or
recapitalization of the Common Stock (each of the foregoing
being referred to as a "Transaction"), in each case as a
result of which shares of Common Stock shall be converted
into the right to receive stock, securities or other property
(including cash or any combination thereof), then the $1.625
Convertible Preferred Stock remaining outstanding will
thereafter no longer be subject to conversion into Common
Stock pursuant to this subsection 7, but instead shall be
convertible into the kind and amount of shares of stock and
other securities and property receivable (including cash)
upon the consummation of such Transaction by a holder of that
number of shares or fraction thereof of Common Stock into
which one share of $1.625 Convertible Preferred Stock was
convertible immediately prior to such Transaction. The
Corporation shall not be a party to any Transaction unless
the terms of such Transaction are consistent with the
provisions of this paragraph (e) and it shall not consent or
agree to the occurrence of any Transaction until the
Corporation has entered into an agreement with the successor
or purchasing entity, as the case may be, for the benefit of
the holders of the $1.625 Convertible Preferred Stock which
will contain provisions enabling the holders of the $1.625
Convertible Preferred Stock which remains outstanding after
such Transaction to convert into the consideration received
by holders of Common Stock at the Conversion Price
immediately after such Transaction. In the event that at any
time, as a result of an adjustment made pursuant to this
subsection 7, the $1.625 Convertible Preferred Stock shall
become subject to conversion into any securities other than
shares of Common Stock, thereafter the number of such other
securities so issuable upon conversion of the shares of
$1.625 Convertible Preferred Stock shall be subject to
adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with
respect to the shares of $1.625 Convertible Preferred Stock
contained in this subsection 7. The provisions of this
paragraph (e) shall similarly apply to successive
Transactions.
(f) If:
(i) the Corporation shall declare a dividend
(or any other distribution) on the Common Stock
that would cause an adjustment to the Conversion
Price of the $1.625 Convertible Preferred Stock
pursuant to the terms of any of the paragraphs
above (including such an adjustment that would
occur but for the terms of the first sentence of
subparagraph (d)(v) above);
(ii) the Corporation shall authorize the
granting to the holders of the Common Stock of
rights or warrants to subscribe for or purchase any
shares of any class or any other rights or
warrants;
(iii) there shall be any reclassification or
change of the Common Stock (other than an event to
which paragraph (d)(i) of this subsection 7
applies) or any consolidation, merger or statutory
share exchange to which the Corporation is a party
and for which approval of any stockholders of the
Corporation is required, or the sale or transfer of
all or substantially all of the assets of the
Corporation or any Fundamental Change or Change of
Control (each as defined in subsection 8 of this
Paragraph (i) below); or
(iv) there shall be a voluntary or
involuntary dissolution, liquidation or winding up
of the Corporation;
then, in addition to actions otherwise required to be taken
pursuant to subsection 8 of this Paragraph (i), the
Corporation shall cause to be filed with the Transfer Agent
and shall cause to be mailed to the holders of shares of the
$1.625 Convertible Preferred Stock at their addresses as
shown on the stock records of the Corporation, as promptly as
possible, but at least 30 days prior to the applicable date
hereinafter specified, a notice stating (A) the date on which
a record is to be taken for the purpose of such dividend,
distribution or granting of rights or warrants, or, if a
record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend,
distribution or rights or warrants are to be determined or
(B) the date on which such reclassification, change,
consolidation, merger, statutory share exchange, sale,
transfer, dissolution, liquidation or winding up is expected
to become effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such
reclassification, change, consolidation, merger, statutory
share exchange, sale, transfer, dissolution, liquidation or
winding up. Failure to give such notice or any defect
therein shall not affect the legality or validity of the
proceedings described in this subsection 7.
(g) Whenever the Conversion Price is adjusted as
herein provided, the Corporation shall promptly file with the
Transfer Agent an officers' certificate signed by the
President or a Vice President and the Chief Financial Officer
or the Secretary of the Corporation setting forth the
Conversion Price after such adjustment, the method of
calculation thereof and setting forth a brief statement of
the facts requiring such adjustment and upon which such
adjustment is based. If the calculation of the adjustment
requires a determination by the Board of Directors pursuant
to paragraph (d)(iii) of this subsection 7 or any similar
provision, such certificate shall include a copy of the
resolution of the Board of Directors relating to such
determination. Promptly after delivery of such certificate,
the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion
Price, the facts requiring such adjustment and upon which
such adjustment is based and the date on which such
adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the holder of each
share of $1.625 Convertible Preferred Stock at such holder's
last address as shown on the stock records of the
Corporation.
(h) In any case in which paragraph (d) of this
subsection 7 provides that an adjustment shall become
effective immediately after a record date for an event and
the date fixed for conversion pursuant to this subsection 7
occurs after such record date but before the occurrence of
such event, the Corporation may defer until the actual
occurrence of such event (i) issuing to the holder of any
share of $1.625 Convertible Preferred Stock surrendered for
conversion the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by
such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (ii)
paying to such holder any amount in cash in lieu of any
fraction pursuant to paragraph (c) of this subsection 7.
(i) For purposes of this subsection 7, the number
of shares of Common Stock at any time outstanding shall not
include any shares of Common Stock then owned or held by or
for the account of the Corporation or any corporation
controlled by the Corporation.
(j) If any single action would require adjustment
pursuant to more than one paragraph of this subsection 7,
only one adjustment shall be made and such adjustment shall
be the amount of adjustment which has the highest absolute
value to the holders of the $1.625 Convertible Preferred
Stock.
(k) In case the Corporation shall take any action
affecting the Common Stock, other than action described in
this subsection 7, which in the opinion of the Board of
Directors would materially adversely affect the conversion
rights of the holders of the shares of $1.625 Convertible
Preferred Stock, the Conversion Price for the $1.625
Convertible Preferred Stock may be adjusted, to the extent
permitted by law, in such manner, if any, and at such time,
as the Board of Directors may determine to be equitable in
the circumstances. Subject to the foregoing, there shall be
no adjustment of the Conversion Price in case of the issuance
of any stock of the Corporation in a reorganization,
acquisition or other similar transaction except as
specifically set forth in this subsection 7.
(l) The Corporation covenants that it will at all
times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued
shares of Common Stock or its issued shares of Common Stock
held in its treasury, or both, for the purpose of effecting
conversion of the $1.625 Convertible Preferred Stock, the
full number of shares of Common Stock deliverable upon the
conversion of all outstanding shares of $1.625 Convertible
Preferred Stock not theretofore converted. For purposes of
this paragraph (l), the number of shares of Common Stock
which shall be deliverable upon the conversion of all
outstanding shares of $1.625 Convertible Preferred Stock
shall be computed as if at the time of computation all such
outstanding shares were held by a single holder.
Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par
value of the shares of Common Stock deliverable upon
conversion of the $1.625 Convertible Preferred Stock, the
Corporation will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted
Conversion Price.
The Corporation will endeavor to make the shares of
Common Stock required to be delivered upon conversion of the
$1.625 Convertible Preferred Stock eligible for trading upon
the NASDAQ National Market System or upon any national
securities exchange upon which the Common Stock shall then be
traded, prior to such delivery.
Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon conversion of
the $1.625 Convertible Preferred Stock, the Corporation will
endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such
securities with, or any approval of or consent to the
delivery thereof by, any governmental authority.
(m) The Corporation will pay any and all
documentary stamp or similar issue or transfer taxes payable
in respect of the issue or delivery of the shares of $1.625
Convertible Preferred Stock (or any other securities issued
on account of the $1.625 Convertible Preferred Stock pursuant
hereto) or shares of Common Stock on conversion of the $1.625
Convertible Preferred Stock pursuant hereto; provided,
however, that the Corporation shall not be required to pay
any tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of $1.625
Convertible Preferred Stock (or any other securities issued
on account of the $1.625 Convertible Preferred Stock pursuant
hereto) or shares of Common Stock in a name other than the
name in which the shares of $1.625 Convertible Preferred
Stock with respect to which such Common Stock shares are
issued were registered and the Corporation shall not be
required to make any issue or delivery unless and until the
person requesting such issue or delivery has paid to the
Corporation the amount of any such tax or has established, to
the reasonable satisfaction of the Corporation, that such tax
has been paid or is not required to be paid.
(n) The Corporation shall not take any action
which results in an adjustment of the number of shares of
Common Stock issuable upon conversion of a share of $1.625
Convertible Preferred Stock if the total number of shares of
Common Stock issuable after such action upon conversion of
the $1.625 Convertible Preferred Stock then outstanding,
together with the total number of shares of Common Stock then
outstanding, would exceed the total number of shares of
Common Stock then authorized under the Restated Certificate
of Incorporation. Subject to the foregoing, the Corporation
shall take all such actions as it may deem reasonable under
the circumstances to provide for the issuance of such number
of shares of Common Stock as would be necessary to allow for
the conversion from time to time, and taking into account
adjustments as herein provided, of outstanding shares of the
$1.625 Convertible Preferred Stock in accordance with the
terms and provisions of the Restated Certificate of
Incorporation.
8. Special Conversion Rights.
(a) Upon the occurrence of a Change of Control
with respect to the Corporation, each holder of $1.625
Convertible Preferred Stock shall have the right, at the
holder's option, for a period of 30 days after the mailing of
a notice by the Corporation to the holders of the $1.625
Convertible Preferred Stock pursuant to subsection 12 of this
Paragraph (i) that a Change of Control has occurred, to
convert all, but not less than all, of such holder's $1.625
Convertible Preferred Stock into Common Stock of the
Corporation at an adjusted Conversion Price per share equal
to the Special Conversion Price (as defined in paragraph (e)
below). The Corporation may, at its option, in lieu of
providing Common Stock upon any such special conversion, pay
to the holder cash equal to the Market Value (as defined in
paragraph (e) below) of the Common Stock multiplied by the
number of shares of Common Stock into which such shares of
$1.625 Convertible Preferred Stock would have been
convertible immediately prior to such Change of Control at an
adjusted Conversion Price equal to the Special Conversion
Price. The special conversion right arising upon a Change of
Control shall only be applicable with respect to the first
Change of Control that occurs after the Issue Date of any
shares of $1.625 Convertible Preferred Stock. $1.625
Convertible Preferred Stock which becomes convertible
pursuant to a special conversion right shall, unless so
converted, remain convertible into the number of shares of
Common Stock that the holders of the $1.625 Convertible
Preferred Stock would have owned immediately after the Change
of Control if the holders had converted the $1.625
Convertible Preferred Stock immediately before the effective
date of the Change of Control, subject to adjustment as
provided in subsection 7 of this Paragraph (i).
(b) Upon the occurrence of a Fundamental Change
with respect to the Corporation, each holder of $1.625
Convertible Preferred Stock shall have a special conversion
right, at the holder's option, for a period of 30 days after
the mailing of a notice by the Corporation to the holders of
the $1.625 Convertible Preferred Stock pursuant to subsection
12 of this Paragraph (i) that a Fundamental Change has
occurred, to convert all, but not less than all, of such
holder's $1.625 Convertible Preferred Stock into the kind and
amount of cash, securities, property or other assets
receivable upon such Fundamental Change by a holder of the
number of shares of Common Stock into which such shares of
$1.625 Convertible Preferred Stock would have been
convertible immediately prior to such Fundamental Change at
an adjusted Conversion Price equal to the Special Conversion
Price. The Corporation or a successor corporation, as the
case may be, may, at its option and in lieu of providing the
consideration as required above upon such conversion, pay to
the holder cash equal to the Market Value of the Common Stock
multiplied by the number of shares of Common Stock into which
such shares of $1.625 Convertible Preferred Stock would have
been convertible immediately prior to such Fundamental Change
at an adjusted Conversion Price equal to the Special
Conversion Price. $1.625 Convertible Preferred Stock which
becomes convertible pursuant to a special conversion right
shall, unless so converted, remain convertible into the kind
and amount of cash, securities, property or other assets that
the holders of the $1.625 Convertible Preferred Stock would
have owned immediately after the Fundamental Change if the
holders had converted the $1.625 Convertible Preferred Stock
immediately before the effective date of the Fundamental
Change, subject to adjustment as provided in subsection 7 of
this Paragraph (i).
(c) Upon the occurrence of a Change of Control or
a Fundamental Change with respect to the Corporation, within
30 days after such occurrence, the Corporation shall mail to
each registered holder of $1.625 Convertible Preferred Stock
a notice of such occurrence (the "Special Conversion Notice")
setting forth the following:
(i) the event constituting the Change of
Control or Fundamental Change;
(ii) the conversion date upon exercise of the
applicable special conversion right;
(iii) the Special Conversion Price;
(iv) the conversion rate (and related conversion
price) then in effect under subsection 7 and the
continuing conversion rights, if any, under subsection 7
of this Paragraph (i);
(v) the name and address of the paying agent
and conversion agent;
(vi) that holders who want to convert shares of
$1.625 Convertible Preferred Stock must satisfy the
requirements of subsection 7(b) of this Paragraph (i)
(specifying such requirements) and must exercise such
conversion right within the 30-day period after the
mailing of such notice by the Corporation;
(vii) that exercise of such conversion right
shall be irrevocable and no dividends on shares of
$1.625 Convertible Preferred Stock (or portions thereof)
tendered for conversion shall accrue from and after the
conversion date; and
(viii) that the Corporation (or a successor
corporation, if applicable) may, at its option, elect to
pay cash (specifying the amount thereof per share) for
all shares of $1.625 Convertible Preferred Stock
tendered for conversion.
(d) A holder of $1.625 Convertible Preferred Stock
must exercise the special conversion right within the 30-day
period after the mailing of the Special Conversion Notice or
such special conversion right shall expire. Such right must
be exercised in accordance with subsection 7(b) of this
Paragraph (i) to the extent the procedures in subsection 7(b)
of this Paragraph (i) are consistent with the special
provisions of this subsection 8. Exercise of such conversion
right shall be irrevocable, to the extent permitted by
applicable law, and dividends on $1.625 Convertible Preferred
Stock tendered for conversion shall cease to accrue from and
after the conversion date. The conversion date with respect
to the exercise of a special conversion right arising upon a
Change of Control or Fundamental Change shall be the 30th day
after the mailing of the Special Conversion Notice. In
taking any action in connection with any Change of Control or
Fundamental Change or related special conversion right, the
Company will comply with all applicable federal securities
laws and regulations.
(e) The following definitions shall apply to terms
used in this subsection 8:
(i) a "Change of Control" with respect to the
Corporation shall be deemed to have occurred at such
time as any person (within the meaning of Sections
13(d)(3) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), including a
group (within the meaning of Rule 13d-5 under the
Exchange Act and any successor rule), together with any
of its Affiliates or Associates (as defined below),
files or becomes obligated to file a report (or any
amendment or supplement thereto) on Schedule 13D or 14D-
1 pursuant to the Exchange Act disclosing that such
person has become the beneficial owner of either (i)
66-2/3% or more of the shares of Common Stock of the
Corporation then outstanding or (ii) securities
representing 66-2/3% or more of the combined voting
power of the Voting Stock (as defined below) of the
Corporation then outstanding; provided, however, that a
Change of Control shall not be deemed to have occurred
with respect to any transaction that constitutes a
Fundamental Change. An "Affiliate" of a specified
person is a person that directly or indirectly controls,
or is controlled by, or is under common control with,
the person specified. An "Associate" of a person means
(1) any corporation or organization, other than the
Corporation or any subsidiary of the Corporation, of
which the person is an officer or partner or is,
directly or indirectly, the beneficial owner of 10% or
more of any class of equity securities; (2) any trust or
estate in which the person has a substantial beneficial
interest or as to which the person serves as trustee or
in a similar fiduciary capacity; and (3) any relative or
spouse of the person, or any relative of the spouse, who
has the same home as the person or who is a director or
officer of the person or any of its parents or
subsidiaries. As used herein, a person shall be deemed
to have "beneficial ownership" with respect to, and
shall be deemed to "beneficially own," any securities of
the Corporation in accordance with Section 13 of the
Exchange Act and the rules and regulations (including
Rule 13d-3, Rule 13d-5 and any successor rules)
promulgated by the Securities and Exchange Commission
thereunder; provided, however, that a person shall be
deemed to have beneficial ownership of all securities
that any such person has a right to acquire whether such
right is exercisable immediately or only after the
passage of time and without regard to the 60-day
limitation referred to in Rule 13d-3.
(ii) a "Fundamental Change" with respect to
the Corporation means (i) the occurrence of any
transaction or event in connection with which 66-2/3% or
more of the outstanding Common Stock of the Corporation
shall be exchanged for, converted into, acquired for or
constitute solely the right to receive cash, securities,
property or other assets (whether by means of an
exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification,
recapitalization or otherwise) or (ii) the conveyance,
sale, lease, assignment, transfer or other disposal of
all or substantially all of the Corporation's property,
business or assets; provided, however that a Fundamental
Change shall not be deemed to have occurred with respect
to either of the following transactions or events: (a)
any transaction or event in which more than 50% (by
value as determined in good faith by the Board of
Directors of the Corporation) of the consideration
received by holders of Common Stock consists of
Marketable Stock (as defined below); or (b) any
consolidation or merger of the Corporation in which the
holders of Common Stock of the Corporation immediately
prior to such transaction own, directly or indirectly,
(1) 50% or more of the common stock of the sole
surviving corporation (or of the ultimate parent of such
sole surviving corporation) outstanding at the time
immediately after such consolidation or merger and (2)
securities representing 50% or more of the combined
voting power of the surviving corporation's Voting Stock
(as defined below) (or of the Voting Stock of the
ultimate parent of such surviving corporation)
outstanding at such time.
(iii) "Voting Stock" means, with respect to any
person, capital stock of such person having general
voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or
trustees of such person (irrespective of whether or not
at the time capital stock of any other class or classes
shall have or might have voting power by reason of the
happening of any contingency).
(iv) the "Special Conversion Price" shall mean
(i) the higher of (a) the Market Value of the Common
Stock or (b) $5.50 per share (which amount will, each
time the Conversion Price is adjusted as provided
elsewhere herein, be adjusted so that the ratio of such
dollar amount to the Conversion Price, after giving
effect to any such adjustment, shall always be the same
as the ratio of $5.50 to the initial Conversion Price,
without giving effect to any such adjustment) multiplied
by (ii) a ratio the numerator of which is $25.00 and the
denominator of which is the Redemption Price (or, if
prior to the date on which the Company may begin to
redeem the $1.625 Convertible Preferred Stock, the
Redemption Price applicable commencing on such date).
(v) the "Market Value" of the Common Stock or
any other Marketable Stock shall be the average of the
Closing Price of the Common Stock or such other
Marketable Stock, as the case may be, for the five
Trading Dates ending on the last Trading Date preceding
the date of the Change of Control or Fundamental Change;
provided, however, that if the Marketable Stock is not
traded on any national securities exchange or similar
quotation system as described in the definition of
"Marketable Stock" during such period, then the Market
Value of such Marketable Stock shall be the average of
the Closing Price of such Marketable Stock during the
first five Trading Dates commencing with the first day
after the date on which such Marketable Stock was first
distributed to the general public and traded on the New
York Stock Exchange, the American Stock Exchange, the
NASDAQ National Market System or any similar system of
automated dissemination of quotations of securities
prices in the United States.
(vi) "Marketable Stock" shall mean Common
Stock or common stock of any corporation that is the
successor to all or substantially all of the business or
assets of the Corporation as a result of a Fundamental
Change (or of the ultimate parent of such successor),
which is (or will, upon distribution thereof, be) listed
or quoted on the New York Stock Exchange, the American
Stock Exchange, the NASDAQ National Market System or any
similar system of automated dissemination of quotations
of securities prices in the United States.
9. Ranking. (a) Any class or classes of stock of
the Corporation shall be deemed to rank:
(i) prior to the $1.625 Convertible Preferred
Stock, as to dividends or as to the distribution of
assets upon liquidation, dissolution or winding up, if
the holders of such class shall be entitled to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may
be, in preference or priority to the holders of $1.625
Convertible Preferred Stock;
(ii) on a parity with the $1.625 Convertible
Preferred Stock, as to dividends or as to the
distribution of assets upon liquidation, dissolution or
winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per
share thereof be different from those of the $1.625
Convertible Preferred Stock, if the holders of such
class of stock and the $1.625 Convertible Preferred
Stock shall be entitled to the receipt of dividends or
of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in proportion to
their respective amounts of accrued and unpaid dividends
per share or liquidation prices, without preference or
priority of one over the other; and
(iii) junior to the $1.625 Convertible Preferred
Stock, as to dividends or as to the distribution of
assets upon liquidation, dissolution or winding up, if
such stock shall be Common Stock or if the holders of
$1.625 Convertible Preferred Stock shall be entitled to
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may
be, in preference or priority to the holders of shares
of such stock.
(b) The Preferred Stock shall rank on a parity
with the Class A Stock, as to dividends and as to the
distribution of assets upon liquidation, dissolution or
winding up, as the case may be, in proportion to their
respective amounts of accrued and unpaid dividends per share
or liquidation prices per share.
10. Voting. (a) Except as herein provided or as
otherwise from time to time required by law, holders of
$1.625 Convertible Preferred Stock shall have no voting
rights. Whenever, at any time or times, dividends payable on
the shares of $1.625 Convertible Preferred Stock at the time
outstanding have not been paid in an aggregate amount equal
to at least six quarterly dividends on such shares (whether
or not consecutive), the holders of $1.625 Convertible
Preferred Stock shall have the right, voting separately as a
class with holders of the Class A Stock and the holders of
shares of any one or more other series of stock ranking on a
parity as to dividends with the $1.625 Convertible Preferred
Stock upon which like voting rights have been conferred and
are exercisable (the $1.625 Convertible Preferred Stock, the
Class A Stock, and any such other stock, collectively for
purposes hereof, the "Defaulted Preferred Stock"), to elect
two directors of the Corporation at the Corporation's next
annual meeting of stockholders and at each subsequent annual
meeting of stockholders; provided, however, that if such
voting rights shall become vested more than 90 days or less
than 20 days before the date prescribed for the annual
meeting of stockholders, thereupon the holders of the shares
of Defaulted Preferred Stock shall be entitled to exercise
their voting rights at a special meeting of the holders of
shares of Defaulted Preferred Stock as set forth herein. At
elections for such directors, each holder of Preferred Stock
shall be entitled to one vote for each share held (the
holders of shares of any other series of Defaulted Preferred
Stock ranking on such a parity being entitled to such number
of votes, if any, for each share of stock held as may be
granted to them). Upon the vesting of such right of the
holders of Defaulted Preferred Stock, the then authorized
number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so
created shall be filled by vote of the holders of outstanding
Defaulted Preferred Stock as hereinafter set forth. The
right of holders of Defaulted Preferred Stock, voting
separately as a class, to elect members of the Board of
Directors as aforesaid shall continue until such time as all
dividends accumulated on Defaulted Preferred Stock shall have
been paid, or declared and funds set aside for payment in
full, at which time such right shall terminate, except as
herein or by law expressly provided, subject to revesting in
the event of each and every subsequent default of the
character above mentioned. As long as any shares of $1.625
Convertible Preferred Stock shall remain outstanding, the
number of directors of the Corporation (excluding any
directors elected by vote of the holders of shares of
Defaulted Preferred Stock) elected at any meeting of
stockholders of the Corporation at which directors are to be
elected shall not be such as would cause the number of
directors in office after such meeting (excluding any
directors elected by vote of the holders of shares of
Defaulted Preferred Stock) to exceed the number which is two
less than the maximum number of directors permitted by the
Restated Certificate of Incorporation.
(b) Whenever such voting right shall have vested,
such right may be exercised initially either at a special
meeting of the holders of shares of Defaulted Preferred Stock
called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and
thereafter at such meetings, or by the written consent of
such holders pursuant to Section 228 of the General
Corporation Law of the State of Delaware.
(c) At any time when such voting right shall have
vested in the holders of shares of Defaulted Preferred Stock
entitled to vote thereon, and if such right shall not already
have been initially exercised, an officer of the Corporation
shall, upon the written request of 10% of the holders of
record of shares of such Defaulted Preferred Stock then
outstanding, addressed to the Secretary of the Corporation,
call a special meeting of holders of shares of such Defaulted
Preferred Stock. Such meeting shall be held at the earliest
practicable date upon the notice to holders of Defaulted
Preferred Stock given as required for annual meetings of
stockholders at the place for holding annual meetings of
stockholders of the corporation or, if none, at a place
designated by the Secretary of the Corporation. If such
meeting shall not be called by the proper officers of the
Corporation within 30 days after the personal service of such
written request upon the Secretary of the Corporation, or
within 30 days after mailing the same within the United
States, by registered mail, addressed to the Secretary of the
Corporation at its principal office (such mailing to be
evidenced by the registry receipt issued by the postal
authorities), then the holders of record of 10% of the shares
of Defaulted Preferred Stock then outstanding may designate
in writing any person to call such meeting at the expense of
the Corporation, and such meeting may be called by such
person so designated upon the notice to holders of Defaulted
Preferred Stock given as required for annual meetings of
stockholders and shall be held at the same place as is
elsewhere provided in this paragraph. Any holder of shares
of Defaulted Preferred Stock then outstanding that
would be entitled to vote at such meeting shall have access
to the stock books of the Corporation for the purpose of
causing a meeting of stockholders to be called pursuant to
the provisions of this paragraph. Notwithstanding the
provisions of this paragraph, however, no such special
meeting shall be called or held during a period within 45
days immediately preceding the date fixed for the next annual
meeting of stockholders.
(d) The directors elected as provided herein shall
serve until the next annual meeting or until their respective
successors shall be elected and shall qualify; any director
elected by the holders of Defaulted Preferred Stock may be
removed without cause by, and shall not be removed without
cause otherwise than by, the vote of the holders of a
majority of the outstanding shares of the Defaulted Preferred
Stock who are entitled to participate in such election of
directors, voting separately as a class, at a meeting called
for such purpose or by written consent as permitted by law
and the Restated Certificate of Incorporation and By-laws of
the Corporation. If the office of any director elected by
the holders of Defaulted Preferred Stock, voting separately
as a class, becomes vacant by reason of death, resignation,
retirement, disqualification or removal from office or
otherwise, the remaining director elected by the holders of
Defaulted Preferred Stock, voting separately as a class, may
choose a successor who shall hold office for the unexpired
term in respect of which such vacancy occurred. Upon any
termination of the right of the holders of Defaulted
Preferred Stock to vote for directors as herein provided, the
term of office of all directors then in office elected by the
holders of Defaulted Preferred Stock, voting separately as a
class, shall terminate immediately. Whenever the terms of
office of the directors elected by the holders of Defaulted
Preferred Stock, voting separately as a class, shall so
terminate and the special voting powers vested in the holders
of Defaulted Preferred Stock shall have expired, the number
of directors shall be reduced by the number of directors
whose term of office shall have terminated as provided
hereinabove.
(e) So long as any shares of the $1.625
Convertible Preferred Stock remain outstanding, the
affirmative vote or consent of the holders of at least 66-
2/3% of the shares of $1.625 Convertible Preferred Stock
outstanding at the time given either by written consent or in
person or by proxy at any special or annual meeting, shall be
necessary to permit, effect or validate any one or more of
the following:
(i) the authorization, creation or issuance, or
any increase in the authorized or issued amount, of any
class or series of stock, or any security convertible
into stock of such class or series, ranking prior to the
$1.625 Convertible Preferred Stock as to dividends or
the distribution of assets upon liquidation, dissolution
or winding up;
(ii) the amendment, alteration or repeal, whether
by merger, consolidation or otherwise, of any of the
provisions of the Restated Certificate of Incorporation
which would adversely affect any right, preference,
privilege or voting power of the $1.625 Convertible
Preferred Stock or of the holders thereof; provided,
however, that any increase in the amount of authorized
preferred stock or the creation and issuance of other
series of preferred stock, or any increase in the amount
of authorized shares of any such other series of
preferred stock, in each case ranking on a parity with
or junior to the $1.625 Convertible Preferred Stock with
respect to the payment of dividends and the distribution
of assets upon liquidation, dissolution or winding up,
shall not be deemed to adversely affect such rights,
preferences, privileges or voting powers; or
(iii) the authorization of any reclassification of
the $1.625 Convertible Preferred Stock.
The foregoing voting provisions shall not apply if,
at or prior to the time when the act with respect to which
such vote would otherwise be required shall be effected, all
outstanding shares of $1.625 Convertible Preferred Stock
shall have been redeemed.
11. Record Holders. The Corporation and the
Transfer Agent may deem and treat the record holder of any
shares of $1.625 Convertible Preferred Stock as the true and
lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any
notice to the contrary.
12. Notice. Except as may otherwise be provided
by law or provided for herein, all notices referred to herein
shall be in writing, and all notices hereunder shall be
deemed to have been given upon receipt, in the case of a
notice of conversion given to the Corporation as contemplated
in subsection 7(b) of this Paragraph (i), or, in all other
cases, upon the earlier of receipt of such notice or three
Business Days after the mailing of such notice if sent by
registered mail (unless first-class mail shall be
specifically permitted for such notice under the terms
hereof) with postage prepaid, addressed: if to the
Corporation, to its offices at 901 Threadneedle, Suite 200,
Houston, Texas 77079-2902 (Attention: Corporate Secretary)
or other agent of the Corporation designated as permitted
hereby; or, if to any holder of the $1.625 Convertible
Preferred Stock, to such holder at the address of such holder
of the $1.625 Convertible Preferred Stock as listed in the
stock record books of the Corporation (which shall include
the records of the Transfer Agent), or to such other address
as the Corporation or holder, as the case may be, shall have
designated by notice similarly given.
FIFTH.
Section l.
(a) The number of directors which constitute the whole
board shall not be less than three persons nor more
than eighteen persons. The exact number of
directors shall be determined from time to time by
the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board of
Directors.
(b) Commencing at the Annual Meeting of Stockholders
held in 1982, the Board of Directors shall be
divided into three classes, Class I, Class II and
Class III, with respect to their terms of office.
All classes shall be as nearly equal in number as
possible. Subject to such limitations, when the
number of directors is changing, any newly-created
directorships or any decrease in directorships
shall be apportioned among the classes by action of
the Board of Directors or the stockholders.
(c) The terms of office of the directors initially
classified shall be as follows: that of Class I
shall expire at the Annual Meeting of Stockholders
to be held in 1983; that of Class II shall expire
at the Annual Meeting of Stockholders to be held in
1984; and that of Class III shall expire at the
Annual Meetings of Stockholders to be held in 1985.
At each Annual Meeting of Stockholders after such
initial classification, directors to replace those
whose terms expire at such Annual Meeting shall be
elected to hold office until the third succeeding
Annual Meeting.
(d) Vacancies in the Board of Directors and newly
created directorships resulting from any increase
in the authorized number of directors may be filled
for the full term or any remainder of a full term
by a majority of the directors then in office,
although less than a quorum, or by a sole remaining
director.
(e) Notwithstanding anything contained in this Restated
Certificate of Incorporation or the By-laws of the
Corporation to the contrary (and notwithstanding
the fact that a lesser percentage may be specified
by law, this Restated Certificate of Incorporation
or the By-laws of the Corporation), the affirmative
vote of the holders of at least eighty percent
(80%) of the outstanding shares of capital stock
entitled to vote for the election of directors,
voting together as a single class, shall be
required to amend, modify or repeal the provisions
set forth in Section l of this Article FIFTH.
Section 2. All Corporate powers shall be exercised by the
Board of Directors except as otherwise provided by statute or
by this Restated Certificate of Incorporation.
IN FURTHERANCE AND NOT IN LIMITATION OF THE POWERS CONFERRED
BY STATUTE, THE BOARD OF DIRECTORS IS EXPRESSLY AUTHORIZED:
(a) To fix, determine and vary from time to time the amount
to be maintained as surplus and the amount or amounts to
be set apart as working capital or for any other lawful
purposes.
(b) To set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any
proper purposes or to abolish any such reserve in the
manner in which it was created.
(c) To make, amend, alter, change, add to or repeal by-laws
for the Corporation, without any action on the part of
the stockholders, but subject to the power of the
holders of stock having voting power to alter, amend or
repeal the by-laws made by the Board of Directors.
(d) To authorize and cause to be executed mortgages and
liens, without limit as to amount, upon the real and
personal property of the Corporation, including the
securities of other corporations owned by the Corpora-
tion, without any action or consent of stockholders.
(e) To authorize the payment of fees for attendance at
meetings of the Board of Directors, of the Executive
Committee and of other committees, and to determine the
amount of such fees.
(f) To designate by resolution passed by a majority of the
total number of directors at the time provided for, one
or more committees, each committee to consist of two or
more of the directors of the Corporation, which to the
extent provided in the resolution or in the by-laws of
the Corporation shall have and may exercise the powers
of the Board of Directors in the management of the
business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to
all papers which may require it.
SIXTH. A director of the Corporation shall not be
disqualified by his office from dealing or contracting with
the Corporation either as a vendor, purchaser or otherwise,
nor shall any transaction or contract of the Corporation be
void or voidable by reason of the fact that any director or
any firm of which any director is a member or any corporation
of which any director is a shareholder, officer or director,
is in any way interested in such transaction or contract,
provided that such transaction or contract is or shall be
authorized, ratified or approved either (1) by a vote of a
majority of a quorum of the Board of Directors, without
counting in such majority or quorum any director so
interested or member of a firm so interested, or a
stockholder, officer or director of a corporation so
interested, or (2) by the written consent, or by the vote at
any stockholders' meeting, of the holders of record of a
majority of all the outstanding shares of stock of the
Corporation entitled to vote; nor shall any director be
liable to account to this Corporation for any profits
realized by or from or through any such transaction or
contract of the Corporation authorized, ratified or approved
as aforesaid by reason of the fact that he, or any firm of
which he is a member, or any corporation of which he is a
shareholder, officer or director, was interested in such
transaction or contract. Nothing herein contained shall
create liability in the events above described or prevent the
authorization, ratification or approval of such transactions
or contracts in any other manner permitted by law.
SEVENTH. Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of
them and/or between this Corporation and its stockholders or
any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder
thereof, or on the application of any receiver or receivers
appointed for this Corporation under the provisions of
section 291 of Title 8 of the Delaware Code, or on the
application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under the provision
of section 279 of Title 8 of the Delaware Code, order a
meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing
three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization of
this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the
said application has been made, be binding on all the
creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation,
as the case may be, and also on this Corporation.
EIGHTH. Elections of directors need not be by ballot unless
the By-laws of the Corporation shall so provide.
NINTH. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
TENTH.
Section l. Elimination of Certain Liability of
Directors. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an
improper personal benefit.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or
is made a party or is threatened to be made a party
to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of
whom he or she is the legal representative, is or
was a director or officer, of the Corporation or
is, or was serving at the request of the
Corporation as a director, officer, employee or
agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including
service with respect to employee benefit plans,
whether the basis of such proceeding is alleged
action in an official capacity as a director,
officer, employee or agent or in any other capacity
while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by
the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that
such amendment permits the Corporation to provide
broader indemnification rights than said law
permitted the Corporation to provide prior to such
amendment), against all expense (including
attorneys' fees), judgments, fines and amounts paid
or to be paid in settlement, actually and
reasonably incurred or suffered by such person in
connection therewith and such indemnification shall
continue as to a person who has ceased to be a
director, officer, employee or agent and shall
inure to the benefit of his or her heirs, executors
and administrators; provided however, that, except
as provided in paragraph (b) hereof, the
corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the
board of directors of the Corporation. The right
to indemnification conferred in this Section shall
be a contract right and shall include the right to
be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its
final disposition; provided, however, that, if the
Delaware General Corporation Law requires, the
payment of such expenses incurred by a director or
officer in his or her capacity as a director or
officer (and not in any other capacity in which
service was or is rendered by such person while a
director or officer, including, without limitation,
service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it
shall ultimately be determined that such director
or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide
indemnification to employees and agents of the
Corporation with the same scope and effect as the
foregoing indemnification of directors and
officers.
(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section is not paid in full
by the Corporation within thirty days after a
written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or
in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It
shall be a defense to any such action (other than
an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of
its final disposition where the required
undertaking, if any is required, has been tendered
to the Corporation) that the claimant has not met
the standards of conduct which make it permissible
under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the
failure of the Corporation (including its board of
directors, independent legal counsel, or its
stockholders) to have made a determination prior to
the commencement of such action that
indemnification of the claimant is proper in the
circumstances because he or she has met the
applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual
determination by the Corporation (including its
board of directors, independent legal counsel, or
its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a
defense to the action or create a presumption that
the claimant has not met the applicable standard of
conduct.
(c) Non-Exclusivity of Rights. The right to
indemnification and the payment of expenses
incurred in defending a proceeding in advance of
its final disposition conferred in this Article
TENTH shall not be exclusive of any other right
which any person may have or hereafter acquired
under any statute, provision of the Restated
Certificate of Incorporation, By-Law, agreement,
vote of stockholders or disinterested directors or
otherwise.
(d) Insurance. The Corporation may maintain insurance,
at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or
another corporation, partnership, joint venture,
trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation
would have the power to indemnify such person
against such expense, liability or loss under the
Delaware General Corporation Law.
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 Restated Certificate of Incorporation, and
except as otherwise expressly provided in Section 2
of this Article ELEVENTH:
(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 (as hereinafter defined) of
$10,000,000 or more; or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series
of transactions) of any securities of the
Corporation or any Subsidiary to any
Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash,
securities or other property (or a combination
thereof) having an aggregate Fair Market Value
of $10,000,000 or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation
proposed by or on behalf of an Interested Stock-
holder or any Affiliate of any Interested Stock-
holder; 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 or
convertible securities 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, excluding
any Preferred Stock issued after May 10, 1983 which the
Board of Directors determines to exclude from the
operation of this Article (the "Voting Stock"), voting
together as a single class (it being understood that for
purposes of this Article ELEVENTH, each share of Voting
Stock shall have the number of votes granted to it
pursuant to Article FOURTH of this Restated Certificate
of Incorporation). 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 otherwise.
B. Definition of "Business Combination." The term
"Business Combination" as used in this Article ELEVENTH
shall mean any transaction 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
Restated Certificate of Incorporation, if all of the
conditions specified in either of the following paragraphs A
or B are met.
A. Approval by Continuing Directors. The Business Combi-
nation shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
B. Price, Form of Consideration 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 (the "Consummation Date") of the
consideration other than cash to be received per
share by holders of Common Stock in such Business
Combination shall be an amount at least equal to
the higher of the following (it being intended that
the requirements of this paragraph B(i) shall be
required to be met with respect to all shares of
Common Stock outstanding, whether or not the
Interested Stockholder has previously acquired any
shares of the Common 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
Common Stock acquired by it (1) within the
two-year period immediately prior to the first
public announcement of the proposal of the
Business Combination (the "Announcement Date")
or (2) in the transaction in which it became
an Interested Stockholder, whichever is
higher, plus interest compounded annually from
the date on which the Interested Stockholder
became an Interested Stockholder (the
"Determination Date") through the Consummation
Date at the prime rate of interest of The
Chase Manhattan Bank, N.A. (or other major
bank headquartered in New York City selected
by a majority of the Continuing Directors)
from time to time in effect in New York City,
less the aggregate amount of any cash
dividends paid, and the Fair Market Value of
any dividends paid in other than cash, on each
share of Common Stock from the Determination
Date through the Consummation Date in an
amount up to but not exceeding the amount of
such interest payable per share of Common
Stock; or
(b) the Fair Market Value per share of Common
Stock on the first trading day after the
Announcement Date.
(ii) The aggregate amount of the cash and the Fair
Market Value as of the Consummation Date of the
consideration other than cash to be received per
share by holders of shares of any class of
outstanding Voting Stock, other than the Common
Stock, in such Business Combination shall be an
amount 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 such other class of
outstanding Voting Stock (excluding any Preferred
Stock issued after May 10, 1983 which the Board of
Directors determines to exclude from the operation
of this Article), 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, plus
interest compounded annually from the Deter-
mination Date through the Consummation Date at
the prime rate of interest of The Chase
Manhattan Bank, N.A. (or other major bank
headquartered in New York City selected by a
majority of the Continuing Directors) from
time to time in effect in New York City, less
the aggregate amount of any cash dividends
paid, and the Fair Market Value of any
dividends paid in other than cash, on each
share of such class of Voting Stock from the
Determination Date through the Consummation
Date in an amount up to but not exceeding the
amount of such interest payable per share of
such class of Voting Stock; or
(b) The Fair Market Value per share of such class
of Voting Stock on the first trading day after
the Announcement Date; or
(c) (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, whichever is
higher.
(iii) The consideration to be received by holders of a
particular class of outstanding Voting 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.
(iv) After such Interested Stockholder has become an
Interested Stockholder and prior to the consumma-
tion of such Business Combination: (a) except as
approved by a majority of the Continuing 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 the
outstanding Preferred Stock; (b) there shall have
been (l) no reduction in the annual rate of
dividends paid on the Common Stock (except as
necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the
Continuing Directors, and (2) an increase in such
annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock
split), recapitalization, reorganization or any
similar transaction which has the effect of
reducing the number of outstanding shares of the
Common Stock, unless the failure so to increase
such annual rate is approved by a majority of the
Continuing Directors; and (c) such Interested
Stockholder shall have not become the beneficial
owner of any additional shares of Voting Stock
except as part of the transaction which results in
such Interested Stockholder becoming Stockholder.
(v) After such Interested Stockholder has become an
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 Combi-
nation (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 purposes of this Article ELEVENTH:
A. A "person" shall mean any individual, firm, corporation
or other entity.
B. "Interested Stockholder" shall mean any person (other
than the Corporation or any Subsidiary (as hereinafter
defined) and other than any profit sharing, thrift,
employee stock ownership, retirement or other employee
benefit plan of the Company or any Subsidiary or any
trustee of, or the fiduciary with respect to any such
plan when acting in such capacity) who or which:
(i) is the beneficial owner (as hereinafter defined),
directly or indirectly, or more than 10 percent
(10%) of the Voting Stock; or
(ii) is an Affiliate (as hereinafter defined) 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 ten percent (10%) or more of the 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 after
the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise
of conversion rights, exchange rights, warrants or
options, or otherwise, or (b) the right to vote
pursuant to any agreement, arrangement or
understanding; or
(iii) which 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 of the
purpose of acquiring, holding, voting or disposing
of any shares of Voting Stock.
D. For the purposes 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 March l, 1983.
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. "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board") who is
unaffiliated with the Interested Stockholder and was a
member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder,
and any successor of a Continuing Director who is
unaffiliated with the Interested Stockholder and is
recommended or elected to succeed a Continuing Director
by a majority of Continuing Directors then on the Board.
H. "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-Listed Stocks, or, if such stock is not quoted
on the Composite tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered
under the 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 Board in good faith: and (ii) in the
case of property other than cash or stock, the fair
market value of such property on the date in question as
determined by a majority of the Continuing Directors in
good faith.
I. 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.
Section 4. Certain Determinations.
The Continuing Directors of the Corporation shall have the
power and duty to determine for the purposes of this Article
ELEVENTH, on the basis of information known to them 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, and (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
$10,000,000 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 Restated
Certificate of Incorporation or the By-Laws of the
Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Restated Certificate
of Incorporation or the By-Laws of the Corporation), the
affirmative vote of the holders of eighty percent (80%) or
more of the voting power of the shares of the then
outstanding Voting Stock, voting together as a single class,
shall be required to amend, modify or repeal this Article
ELEVENTH of this Restated Certificate of Incorporation.
TWELFTH. Notwithstanding any other provisions of this
Restated Certificate of Incorporation or the By-laws of the
Corporation to the contrary, no action required to be taken
or which may be taken at any annual or special meeting of
stockholders of the Corporation may be taken by written
consent without a meeting except (1) any action which may be
taken solely upon the vote or consent of holders of the Class
A Stock or any series of Preferred Stock, or (2) any action
taken upon the signing of a consent in writing, setting forth
the action so taken, by all the stockholders of the
Corporation entitled to vote thereon.
Notwithstanding any other provisions of this Restated
Certificate of Incorporation or the By-laws of the
Corporation to the contrary (and notwithstanding the fact
that a lesser percentage may be specified by law, this
Restated Certificate of Incorporation or the By-laws of the
Corporation), the affirmative vote of the holders of eighty
percent (80%) or more of the outstanding shares of capital
stock entitled to vote for the election of directors, voting
together as a single class, shall be required to amend,
modify or repeal this Article TWELFTH.
IN WITNESS WHEREOF, this Restated Certificate of
Incorporation, which restates, integrates and further amends
the provisions of the Corporation's Certificate of
Incorporation, originally filed on October 19, 1955 in the
office of the Secretary of State of Delaware, having been
duly adopted by the Board of Directors and the Stockholders
of the Corporation in accordance with the provisions of
Sections 242 and 245 of the General Corporation Law of
Delaware, has been executed this 10th day of May 1994.
Reading & Bates Corporation
By: T. W. Nagle
-----------------------------
Name: T. W. Nagle
Title: Vice President and
Chief Financial Officer
[SEAL]
ATTEST: Wayne K. Hillin
----------------------
Name: Wayne K. Hillin
Title: Secretary
