RESTATED CERTIFICATE OF INCORPORATION
OF
ROLLINS TRUCK LEASING CORP.
It is hereby certified that:
1. (a) The present name of the corporation (hereinafter
called the "corporation") is Rollins Truck Leasing Corp.
(b) The name under which the corporation was originally
incorporated is Rollins Fleet Leasing, Inc.; and the date of filing the
original certificate of incorporation of the corporation with the
Secretary of State of the State of Delaware is April 28, 1954.
2. The provisions of the certificate of incorporation of the
corporation as heretofore amended and/or supplemented, are hereby
restated and integrated into the single instrument which is hereinafter
set forth, and which is entitled Restated Certificate of Incorporation
of Rollins Truck Leasing Corp., without further amendment and without
any discrepancy between the provisions of the certificate of
incorporation as heretofore amended and supplemented and the provisions
of the said single instrument hereinafter set forth.
3. The Board of Directors of the corporation has duly
adopted this Restated Certificate of Incorporation pursuant to the
provisions of Section 245 of the General Corporation Law of the State
of Delaware in the form set forth as follows:
"Restated Certificate of Incorporation
of
Rollins Truck Leasing Corp.
FIRST: The name of the Corporation is Rollins Truck Leasing Corp.
SECOND: Its registered office is to be located at One Rollins
Plaza, County of New Castle, Wilmington, in the State of Delaware. The
name of its registered agent at that address is Rollins Truck Leasing
Corp.
THIRD: The nature of the business of the Corporation is to engage
in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which this Corporation
shall have authority to issue is One Hundred One Million (101,000,000)
shares, divided into two classes, namely Preferred Stock and Common
Stock. The number of shares of Preferred Stock which this Corporation
is authorized to issue is One Million (1,000,000) shares without par
value; the number of shares of Common Stock which this Corporation is
authorized to issue is One Hundred Million (100,000,000) shares of the
par value of One Dollar ($1.00) per share.
There is hereby expressly granted to the Board of Directors of the
Corporation the power and authority to issue the Preferred Stock as a
class without series, or if so determined from time to time, in one or
more series, and to fix the voting rights, the designations,
preferences and relative, participating, optional or other special
rights of the class of the Preferred Stock or of one or more series
thereof and the qualifications, limitation or restrictions thereof with
respect to the Preferred Stock authorized herein in a resolution or
resolutions adopted by the Board of Directors providing for the issue
of said stock. The holders of Preferred Stock shall have no preemptive
rights to subscribe for any shares of any class of stock of the
Corporation whether now or hereafter authorized.
The Board of Directors is further authorized to provide that the
Preferred Stock, when issued, may be convertible into or exchangeable
for shares of any other class or classes of stock of the Corporation or
of any series of the same at such price or prices or rates of exchange
and with such adjustments as shall be stated and expressed in the
resolution or resolutions providing for the issue of such Preferred
Stock adopted by the Board of Directors as hereinabove provided.
Each and every resolution adopted by the Board of Directors
providing for the issuance of the Preferred Stock as a class or in
series within such class from time to time shall be, under certificate
of the proper officers of the Corporation, filed with the Secretary of
State of Delaware and a certified copy thereof shall be recorded in the
same manner as certificates of incorporation are required to be filed
and recorded.
The holders of the Common Stock shall have no preemptive rights to
subscribe for any shares of any class of stock of the Corporation
whether now or hereafter authorized.
Special meetings of the stockholders may be called at any time by
the Chairman of the Board of Directors, the President or the Chairman
of the Executive Committee of the Board of Directors and not by any
other person. No action shall be taken by the stockholders except at
an annual or special meeting of stockholders and stockholders may not
act by written consent.
DESIGNATION, POWERS, PREFERENCES
AND RIGHTS OF SERIES C $1 DIVIDEND
CUMULATIVE CONVERTIBLE PREFERRED
STOCK.
The series of 423,912 shares of the Preferred Stock, without par
value, of the Corporation, hereby designated "Series C $1 Dividend
Cumulative Convertible Preferred Stock", to be issued from time to time
as the Board of Directors may determine, shall have the following
powers, preferences, rights and limitations in addition to those
applicable generally to the Preferred Stock of the Corporation.
(a) The holders of shares of Series C $1 Dividend Cumulative
Convertible Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of funds and assets of the
Corporation legally available therefor, a cash dividend of $1.00 per
share, payable October 31, 1970 and thereafter an annual cash dividend
at the rate of $1.00 per share, payable semi-annually in installments
of $.50 per share on the 30th day of April and October in each year, to
stockholders of record on record dates, not exceeding 15 days preceding
such dividend payment dates, fixed for that purpose by the Board of
Directors. Dividends on each share of the Series C $1 Dividend
Cumulative Convertible Preferred Stock shall accrue and be cumulative
from the date of issue. Accumulations of dividends shall not bear
interest.
No dividend shall be paid or declared and set apart for
payment on any shares of Preferred Stock for any dividend period unless
a dividend for the same period and all past periods, if any, ending
within such period ratable in proportion to the respective annual
dividend rates fixed therefor, shall be or have been paid or declared
and set apart for payment on all shares of Preferred Stock of all
series then outstanding and entitled to receive dividends for such
period or for any past dividend period, if any, ending within such
dividend period.
So long as any shares of Series C $1 Dividend Cumulative
Convertible Preferred Stock are outstanding, the Corporation shall not
declare and pay or set apart for payment any dividends or make any
other distribution on the Corporation's Common Stock and shall not
redeem, retire, purchase or otherwise acquire, or permit any subsidiary
to purchase or otherwise acquire, any shares of Common Stock or
Preferred Stock, unless at the time of making such declaration,
payment, distribution, redemption, retirement, purchase or acquisition,
dividends on all outstanding shares of Series C $1 Dividend Cumulative
Convertible Preferred Stock for all past dividend periods shall have
been paid or declared and sufficient funds set apart for the payment
thereof.
(b) The Corporation may, at the option of the Board of
Directors, redeem all or any part of the outstanding Series C $1
Dividend Cumulative Convertible Preferred Stock at any time after June
30, 1971, by paying for each share so redeemed the redemption prices
listed below, together with an amount equal to all cumulative dividends
accrued thereon to the date fixed for redemption plus accrued and
unpaid dividends, if any, provided that notice of redemption is sent by
certified mail to the holders of record of the Series C $1 Dividend
Cumulative Convertible Preferred Stock to be redeemed at least 40 but
not more than 60 days prior to the date of redemption specified in such
notice, addressed to each such holder at his address as it appears in
the records of the Corporation. On or after the redemption date each
holder of shares of Series C $1 Dividend Cumulative Convertible
Preferred Stock to be redeemed shall present and surrender his
certificate or certificates for such shares to the Corporation at the
place designated in such notice and thereupon the redemption price of
such shares shall be paid to or to the order of the person whose name
appears on such certificate or certificates as the owner thereon and
each surrender certificate shall be cancelled. In case less than all
the shares represented by any such certificates are redeemed, a
certificate shall be issued representing the unredeemed shares. From
and after the redemption date (unless default shall be made by the
Corporation in payment of the redemption price) all dividends on the
shares of Series C $1 Dividend Cumulative Convertible Preferred Stock
designated for redemption in such notice shall cease to accrue, and all
rights of the holders thereof as stockholders of the Corporation,
except the right to receive the redemption price thereof upon the
surrender of certificates representing the same, without interest,
shall cease and terminate and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the books
of the Corporation, and such shares shall not be deemed to be
outstanding for any purpose whatsoever. At its election, the
Corporation prior to the redemption date may deposit the redemption
price of the shares of Series C $1 Dividend Cumulative Convertible
Preferred Stock so called for redemption in trust for the holders
thereof with a bank or trust company (having a capital and surplus of
not less than $1,000,000) in which case such notice to holders of the
Series C $1 Cumulative Convertible Preferred Stock to be redeemed shall
state the date of such deposit, shall specify the office of such bank
or trust company as the place of payment of the redemption price, and
shall call upon such holders to surrender the certificates representing
such shares at such price on or after the date fixed in such redemption
notice (which shall not be later than the redemption date) against
payment of the redemption price. From and after the making of such
deposit, the shares of Series C $1 Dividend Cumulative Convertible
Preferred Stock so designated for redemption shall not be deemed to be
outstanding for any purpose whatsoever, and the rights of the holders
of such shares shall be limited to the right to receive the redemption
price of such shares, without interest, upon surrender of the
certificates representing the same to the Corporation at said office of
such bank and trust company, and the right of conversion (on or before
the close of business on the last business day prior to the date fixed
for redemption) herein provided. Any funds so deposited which shall
not be required for such redemption because of the exercise of such
right of conversion after the date of such deposit shall be returned to
the Corporation. Any interest accrued on such funds shall be paid to
the Corporation from time to time. Any moneys so deposited which shall
remain unclaimed by the holders of such Series C $1 Dividend Cumulative
Convertible Preferred Stock at the end of six years after the
redemption date shall be returned by such bank or trust company to the
Corporation after which the holders of the Series C $1 Cumulative
Convertible Preferred Stock shall look only to the Corporation for
payment of the redemption price. In the event that less than all the
outstanding shares of Series C $1 Dividend Cumulative Convertible
Preferred Stock are to be redeemed at one time, the shares so to be
redeemed shall be determined by lot or pro rata in such manner as the
Board of Directors may determine. The prices at which each share of
Series C $1 Dividend Cumulative Convertible Preferred Stock may be
redeemed during the periods set forth below are as follows:
Prior to July 1, 1971: No right to redeem.
If redemption date occurs after June 30, 1971 but before
July 1, 1972: $32.00 together with an amount equal to all cumulative
dividends accrued thereon to the date of redemption.
If redemption date occurs after June 30, 1972 but before
July 1, 1973: $31.00 together with an amount equal to all cumulative
dividends accrued thereon to the date of redemption.
If redemption date occurs after June 30, 1973; $30.00
together with any amount equal to all cumulative dividends accrued
thereon to the date of redemption.
(c) Upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of Series C
$1 Dividend Cumulative Convertible Preferred Stock shall be entitled to
be paid out of the assets of the Corporation available for distribution
to its stockholders before any payment shall be made in respect of any
class or series of stock which shall rank subordinate thereto as to
assets the fixed amount of $30.00 for each share of Series C $1
Dividend Cumulative Convertible Preferred Stock held by them and
accrued and unpaid dividends, if any, thereon.
If upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation the assets of the Corporation
available for distribution to its Series C $1 Dividend Cumulative
Convertible Preferred Stockholders shall be insufficient to pay the
holders of Series C $1 Dividend Cumulative Convertible Preferred Stock
the full amount to which they are entitled hereunder, the holders of
Series C $1 Dividend Cumulative Convertible Preferred Stock shall share
with all other preferred stock ratably in any distribution of assets
according to the respective amounts which would be payable in respect
of the shares of Series C $1 Dividend Cumulative Convertible Preferred
Stock held by them upon such distribution if all amounts payable on or
with respect to Series C $1 Dividend Cumulative Convertible Preferred
Stock were paid in full.
Neither the merger or consolidation of the Corporation into
or with another Corporation, nor the sale, transfer or lease of all or
substantially all the assets of the Corporation, shall be deemed to be
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation.
(d) At each meeting of stockholders each holder of record of
shares of Series C $1 Dividend Cumulative Convertible Preferred Stock
shall be entitled to .7 of a vote per share on each matter on which the
holders of record of common stock shall be entitled to vote, except the
election of directors, voting, except as otherwise provided herein or
required by law, together with the holder of record of common stock and
any other series of preferred stock entitled to vote with the holders
of record of common stock as one class, and each such record holder of
shares of Series C $1 Dividend Cumulative Convertible Preferred Stock
shall be entitled to notice of any such meeting of stockholders,
provided however, that so long as 50,000 shares of Series C $1 Dividend
Cumulative Convertible Preferred Stock are outstanding, the holders of
record of Series C $1 Dividend Cumulative Convertible Preferred Stock,
voting separately as a class, shall have the right to elect one member
of the Board of Directors of the Corporation and, in addition to such
right to elect one director, if at the time of any annual meeting of
stockholders for the election of directors a default in dividends (as
defined in this paragraph) shall exist, the holders of shares of Series
C $1 Dividend Cumulative Convertible Preferred Stock, voting separately
as a class shall have the right to elect one-quarter of the members of
the Board of Directors of the Corporation and the holders of other
preferred stock and common stock shall not be entitled to vote in the
election of the directors so to be elected by the holders of shares of
Series C $1 Dividend Cumulative Convertible Preferred Stock. Any
director elected by the holders of shares of Series C $1 Dividend
Cumulative Convertible Preferred Stock, elected because a default in
Series C $1 Dividend Cumulative Convertible Preferred Stock exists,
voting as a class as aforesaid, shall continue to serve as such
director for the full term for which he shall have been elected
notwithstanding that prior to the end of such term a default in Series
C $1 Dividend Cumulative Convertible Preferred Stock dividends shall
cease to exist.
At any meeting held for the election of directors at which the
holders of shares of Series C $1 Dividend Cumulative Convertible
Preferred Stock shall have the right to elect directors as hereinabove
provided, the presence, in person or by proxy, of the holders of a
majority of the number of outstanding shares of Series C $1 Dividend
Cumulative Convertible Preferred Stock shall be required to constitute
a quorum of such class for the election of any director by the holders
of such Series C $1 Dividend Cumulative Convertible Preferred Stock.
At any such meeting or adjournment thereof the absence of a quorum of
the holders of Series C $1 Dividend Cumulative Convertible Preferred
Stock shall not prevent the election of directors other than those to
be elected by such holders of Series C $1 Dividend Cumulative
Convertible Preferred Stock voting together as a class. During any
period in which the holders of shares of Series C $1 Dividend
Cumulative Convertible Preferred Stock have the right to elect
directors as provided for herein, any vacancy in the directorships
filled by such holders shall be filled by the vote of the remaining
director or directors theretofore elected by such holders. If not so
filled within 40 days after the creation thereof, or if at the time of
such vacancy there should be only one director elected by such holders,
the Secretary of the Corporation shall call a special meeting of the
holders of the Series C $1 Dividend Cumulative Convertible Preferred
Stock and such vacancy or vacancies shall be filled at such special
meeting.
For the purposes of this paragraph, a default in Series C $1
Dividend Cumulative Convertible Preferred Stock dividends shall be
deemed to have occurred whenever the amount of dividends in arrears
shall be equivalent to three semi-annual dividends or more and, having
so occurred, such default shall be deemed to exist thereafter until all
accrued dividends on all shares of Series C $1 Dividend Cumulative
Convertible Preferred Stock then outstanding shall have been paid.
No director elected by the holders of the Series C $1 Dividend
Cumulative Convertible Preferred Stock shall be removed otherwise than
by vote of the holders of at least a majority in number of the
outstanding shares of such stock, voting separately as a class, at a
special meeting of such holders.
(e) So long as any shares of the Series C $1 Dividend
Cumulative Convertible Preferred Stock are outstanding, the Corporation
shall not, without the affirmative vote or written consent of the
holders of at least two-thirds of the aggregate number of shares at the
time outstanding of the Series C $1 Dividend Cumulative Convertible
Preferred Stock and any other series of preferred stock hereafter
issued which shall be accorded such class voting right by the Board of
Directors as permitted in the Certificate of Incorporation, voting or
consenting, as the case may be, separately as a class without regard to
series:
(i) authorize, create or increase any class or capital
stock ranking prior to the Preferred Stock as to dividends or upon
liquidation, dissolution or winding up; or
(ii) alter or change any of the powers, preferences, or
special rights given to the Series C $1 Dividend Cumulative Convertible
Preferred Stock by the Certificate of Incorporation so as to affect the
Preferred Stock adversely.
So long as any shares of the Series C $1 Dividend Cumulative
Convertible Preferred Stock are outstanding, the Corporation shall not,
without the affirmative vote or written consent of the holders of at
least a majority of the aggregate number of shares at the time
outstanding of the Series C $1 Dividend Cumulative Convertible
Preferred Stock and any other series of preferred stock hereafter
issued which shall be accorded such class voting right by the Board of
Directors as permitted in the Certificate of Incorporation, voting or
consenting as the case may be, separately as a class without regard to
series:
(i) increase the number of shares of Preferred Stock at
the time authorized by the Certificate of Incorporation of the
Corporation.
(ii) authorize, create or increase any class of capital
stock ranking on a parity with the Preferred Stock as to dividends or
upon liquidation, dissolution or winding up.
No vote or written consent of the holders of Series C $1
Dividend Cumulative Convertible Preferred Stock shall be required for
any purpose if, at or prior to the time when any such action otherwise
requiring such vote or written consent is to take effect, provision is
made for the redemption of all shares of Series C $1 Dividend
Cumulative Convertible Preferred Stock at the time outstanding.
(f) The Series C $1 Dividend Cumulative Convertible
Preferred Stock shall be convertible into Common Stock of the
Corporation at the option of the holders thereof at any time at the
rate, subject to the provisions for adjustment hereinafter set forth,
of seven-tenths (.7) of a share of Common Stock for each share of
Series C $1 Dividend Cumulative Convertible Preferred Stock. No
allowance or adjustments for dividends on either class of stock shall
be made upon conversion. The right to convert any shares called for
redemption shall continue until and shall expire at the close of
business on the last business day prior to the redemption date.
The holder of a share or shares of Series C $1 Dividend
Cumulative Convertible Preferred Stock may exercise the conversion
rights as to any thereof by delivering to the Corporation during
regular business hours, at the office of the transfer agent of the
Corporation for the Series C $1 Dividend Cumulative Convertible
Preferred Stock or at such other place as may be designated by the
Corporation, the certificate or certificates for the shares to be
converted, duly endorsed or assigned in blank or to the Corporation (if
required by it), accompanied in any event by written notice stating
that the holder elects to convert such shares and stating the name or
names (with address) in which the certificate or certificates for
Common Stock are to be issued. Conversion shall be deemed to have been
effected on the date when such delivery is made, and such date is
referred to herein as the "conversion date". As promptly as
practicable thereafter the Corporation shall issue and deliver to or
upon the written order of such holder, at such office or other place
designated by the Corporation, a certificate or certificates for the
number of full shares of Common Stock to which he is entitled and a
check or fractional scrip certificate in respect of any fraction of a
share as provided below. The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have
become a holder of Common Stock of record on the conversion date.
The issuance of Common Stock on conversion of Series C $1 Dividend
Cumulative Convertible Preferred Stock shall be without charge to the
converting holder of Series C $1 Dividend Cumulative Convertible
Preferred Stock for any fee, expense or tax in respect of the issuance
thereof, but the Corporation shall not be required to pay any fee,
expense or tax which may be payable in respect of any transfer involved
in the issuance and delivery of shares in the name other than that of
the holder of record on the books of the Corporation of the shares of
Series C $1 Dividend Cumulative Convertible Preferred Stock converted,
and the Corporation shall not, in any such case, be required to issue
or delivery any certificate for shares of Common Stock unless and until
the person requesting the issuance thereof shall have paid to the
Corporation the amount of such fee, expense or tax or shall have
established to the satisfaction of the Company that such fee, expense
or tax has been paid.
The number of shares of Common Stock deliverable upon
conversion of each share of Series C $1 Dividend Cumulative Convertible
Preferred Stock shall be subject to adjustments from time to time as
follows:
(i) In case the Corporation shall (A) take a record of
the holders of the Common Stock for the purpose of entitling them to
receive a dividend payable in shares of Common Stock, (B) subdivide its
outstanding shares of Common Stock into a greater number of shares, (C)
combine its outstanding shares of Common Stock into a smaller number of
shares, or (D) issue by reclassification of its Common Stock any shares
of the Corporation of any class or series, the holder of each share of
the Series C $1 Dividend Cumulative Convertible Preferred Stock shall
thereafter be entitled to receive upon the conversion of such shares
the number of shares of Common Stock or other stock of the Corporation
which he would have owned or have been entitled to receive after the
happening of one of the events described above which shall have
happened had such shares of the Series C $1 Dividend Cumulative
Convertible Preferred Stock held by him been converted immediately
prior to the happening of such event, such adjustments to become
effective immediately after the opening of business on the day
following such record date or the day upon which such subdivision,
combination or reclassification becomes effective.
(ii) In case of any consolidation or merger of the
Corporation with or into another Corporation, or in the case of any
sale or conveyance to another Corporation of all or substantially all
the property of the Corporation, each holder of the Series C $1
Dividend Cumulative Convertible Preferred Stock then outstanding and
thereafter remaining outstanding shall have the right thereafter to
convert each share held by him into the kind and amount of shares of
stock, other securities, cash or property receivable upon such
consolidation, merger, sale or conveyance, by a holder of the number of
shares of Common Stock into which such share might have been converted
immediately prior to such consolidation, merger, sale or conveyance and
shall have no other conversion rights; in any such event, effective
provision shall be made, in the certificate of incorporation of the
resulting or surviving Corporation or otherwise, so that the provisions
set forth herein for the protection of the conversion rights of the
shares of the Series C $1 Dividend Cumulative Convertible Preferred
Stock shall thereafter be applicable, as nearly as reasonably may be,
to any such other shares of stock, other securities, cash or property
deliverable upon conversion of the shares of the Series C $1 Dividend
Cumulative Convertible Preferred Stock remaining outstanding or other
convertible stock or securities received by the holders in place
thereof, and any such resulting or surviving Corporation shall
expressly assume the obligation to deliver, upon the exercise of the
conversion privilege, such shares, other securities, cash or property
as the holders of the shares of the Series C $1 Dividend Cumulative
Convertible Preferred Stock remaining outstanding, or other convertible
stock or securities received by the holders in place thereof, shall be
entitled to receive pursuant to the provisions hereof, and to make
provision for the protection of the conversion right as above provided.
(iii) In case the Corporation shall fix a record date
for the issuance of rights or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase Common Stock at a
price per share less than the current market price of the Common Stock
(as defined in this clause (iii) below) on such record date, the number
of shares of Common Stock into which each share of Series C $1 Dividend
Cumulative Convertible Preferred Stock shall be convertible after such
record date shall be determined by multiplying the number of shares of
Common stock into which such share of Series C $1 Dividend Cumulative
Convertible Preferred Stock was convertible immediately prior to such
record date by a fraction, of which the numerator shall be the number
of shares of Common Stock outstanding on such date plus the number of
additional shares of Common Stock to be offered for subscription or
purchase, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of shares
of Common Stock which the aggregate offering price of the total number
of shares so to be offered would purchase at such current market price.
Shares of Common Stock owned by or held for the account of the
Corporation or any subsidiary shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed; and in the event
that such rights or warrants are not so issued, the conversion rate
shall again be adjusted to be the conversion rate which would then be
in effect if such record date has not been fixed. For the purpose of
any computation under this clause (iii), the current market price per
share of Common Stock on any date shall mean the closing price on the
record date determined for the issuance of such rights and warrants.
In the event that the Corporation takes a record of holders
of Common Stock for the purpose of entitling them to receive a dividend
payable in any security convertible into Common Stock and the holder of
a share of Series C $1 Dividend Cumulative Convertible Preferred Stock
thereafter converts all or part of the shares of Series C $1 Dividend
Cumulative Convertible Preferred Stock into shares of Common Stock in
accordance with the provisions hereof, such holder shall be entitled to
receive upon such conversion in addition to the shares of Common Stock
deliverable to him in accordance with the provisions hereof, the number
of shares or principal amount of such security convertible into Common
Stock as he would have been entitled to receive if he had converted
immediately prior to the taking of such record.
No adjustment in the number of shares into which each share
of the Series C $1 Dividend Cumulative Convertible Preferred Stock is
convertible shall be required unless such adjustment would require an
increase or decrease of a least 1/100th of a share in the number of
shares into which such share is then convertible; provided, however,
that any adjustment which by reason hereof is not required to be made
shall be carried forward and taken into account in any subsequent
adjustment.
Whenever any adjustment is required in the number of shares
into which each share of the Series C $1 Dividend Cumulative
Convertible Preferred Stock is convertible, the Corporation shall
forthwith file at the office or agency maintained for the purpose of
conversion of the Series C $1 Dividend Cumulative Convertible Preferred
Stock a statement describing in reasonable detail the adjustment and
method of calculation used.
The Corporation shall at all times keep available for issue
and delivery the full number of shares of stock or other securities
into which all outstanding shares of Series C $1 Dividend Cumulative
Convertible Preferred Stock are convertible.
(g) Shares of the Series C $1 Dividend Cumulative
Convertible Preferred Stock redeemed or purchased by the Corporation or
surrendered to the Corporation on the conversion thereof into shares of
Common Stock as hereinabove provided shall not be reissued by the
Corporation.
FIFTH: The property and business of this Corporation shall be
managed by a Board of up to eight directors. The directors shall be
divided into three classes. The first class (Class I) shall consist of
two (2) directors and the term of office of such class shall expire at
the Annual Meeting of Stockholders in 2002. The second class (Class
II) shall consist of three (3) directors and the term of office of such
class shall expire at the Annual Meeting of Stockholders in 2003. The
third class (Class III) shall consist of three (3) directors and the
term of such third class shall expire at the Annual Meeting of
Stockholders in 2001. At each annual election, commencing at the next
Annual Meeting of Stockholders in 2001, the successors of the class of
directors whose term expires at that time shall be elected to hold
office for the term of three years to succeed those whose term expires,
so that the term of office of one class of directors shall expire in
each year. Each director shall hold office for the term for which he
is elected or appointed or until his successor shall be elected and
qualified, or until his death or until he shall resign.
Notwithstanding any of the provisions of this Certificate of
Incorporation or the by-laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Certificate of Incorporation or the by-laws of the Corporation), any
director or the entire Board of Directors of the Corporation may be
removed at any time, but only for cause, and only at a meeting of the
stockholders called for that purpose by the affirmative vote of the
holders of 75% or more of the shares of the Corporation entitled to
vote at an election of directors.
Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the Corporation not less than 14 days nor more than
50 days prior to any meeting of the stockholders called for the
election of directors; provided, however, that if less than 21 days'
notice of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the Secretary of the
Corporation not later than the close of business on the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
Each such notice shall set forth (i) the name, age, business
address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such
nominee and (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance
with the foregoing procedure, and, if he should so determine, he shall
so declare to the meeting and the defective nomination shall be
disregarded.
SIXTH: This Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatsoever.
EIGHTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors
is expressly authorized to make, alter, amend and repeal the by-laws.
The stockholders may make, alter or repeal any by-law whether or not
adopted by them, provided however, that any such additional by-law,
alterations or repeal may be adopted only by the affirmative vote of
the holders of 75% or more of the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class), unless such
additional by-laws, alternations or repeal shall have been recommended
to the stockholders for adoption by a majority of the Board of
Directors, in which event such additional by-laws, alternations or
repeal may be adopted by the affirmative vote of the holders of a
majority of the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (considered for
this purpose as one class).
NINTH; (a)1. In addition to any affirmative vote required by
law, and except as otherwise expressly provided in section (b) and (c)
of this Article NINTH:
(A) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with or into (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder) which, after such
merger or consolidation, would be an Affiliate (as hereinafter defined)
or an Interested Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
related transactions) to or with an Interested Stockholder, or an
Affiliate of any Interested Stockholder, of any assets of the
Corporation or any Subsidiary having any aggregate fair market value of
$5,000,000 or more; or
(C) The issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related transactions) of
any securities of the Corporation to any Interested Stockholder, or an
Affiliate of any Interested Stockholder, in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $5,000,000 or more; or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation; or
(E) 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 similar 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 75% of
the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose
of this Article NINTH as one class ("Voting Shares"). Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage may be specified, by law or in
any agreement with any national securities exchange or otherwise.
2. The term "business combination" as used in this
Article NINTH shall mean any transaction which is referred to in any
one or more of clauses (A) through (E) of paragraph 1 of this section
(a).
(b) The provisions of section (a) of this Article NINTH
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 provisions of the Certificate of
Incorporation or by-laws if such business combination has been approved
by a majority of the whole Board.
(c) For the purposes of this Article NINTH:
1. A "person" shall mean any individual, firm,
corporation or other entity.
2. "Interested Stockholder" shall mean, in respect of
any business combination, any person (other than the Corporation or any
Subsidiary) who or which, as of the record date for the determination
of stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction.
(A) is the beneficial owner, directly or indirectly, of
more than 20% of the Voting Shares; or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 20% of the then outstanding Voting Shares;
or
(C) is an assignee of or has otherwise succeeded to any
shares of capital stock of the Corporation which were at any time
within two years prior thereto beneficially owned by any Interested
Stockholder, and 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.
Provided, however, that no person who on the date of the adoption of
this Article NINTH would otherwise be an "Interested Stockholder" as
defined in this subsection 2 shall be deemed to be an "Interested
Stockholder".
3. A person shall be the "beneficial owner" of any
Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereinafter defined) beneficially own, directly or
indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) 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 (ii) the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
4. The outstanding Voting Shares shall include shares
deemed owned through application of paragraph 3 above but shall not
include any other Voting Shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or options
or otherwise.
5. "Affiliate" and "Associate" shall have the
respective meanings given those terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934 as in
effect on the date of the adoption of this provision.
6. "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule 3a11-1 of
the General Rules and Regulations under the Securities Exchange Act of
1934 as in effect on the date of the adoption of this provision), is
owned, directly or indirectly, by the Corporation; provided, however,
that for the purposes of the definition of Interested Stockholder set
forth in paragraph 2 of this section (c), 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.
(d) A majority of the directors shall have the power
and duty to determine for the purposes of this Article NINTH on the
basis of information known to them (1) the number of Voting Shares
beneficially owned by any person, (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred to
in paragraph 3 of section (c), or (4) whether the assets subject to any
business combination or the consideration received for the issuance or
transfer of securities by the Corporation or any Subsidiary has an
aggregate fair market value of $5,000,000 or more.
(e) Nothing contained in this Article NINTH shall be
construed to relieve any Interested Stockholder from any fiduciary
obligation imposed by law.
TENTH: Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of
at least 75% of the shares of the Corporation then entitled to be voted
in an election of directors shall be required to amend or repeal, or
to adopt any provision inconsistent with Articles FOURTH, FIFTH,
EIGHTH, NINTH or TENTH of this Certificate of Incorporation, except
that only the affirmative vote of the holders of a simple majority of
the shares of the Corporation then entitled to be voted in an election
of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with Articles FOURTH, FIFTH or EIGHTH of this
Certificate of Incorporation if such amendment, repeal or adoption
shall have been approved by a majority of the members of the Board of
Directors.
ELEVENTH: No director of the Corporation shall be personally
liable to the Corporation or its shareholders for monetary damages for
breach of fiduciary duty as a director; provided, however, that the
foregoing clause shall not apply to any liability of a director (i) for
any breach of the director's duty of loyalty to the Corporation or its
shareholders, (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 General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. This Article Eleventh shall not
eliminate or limit the liability of a director for any act or omission
occurring prior to the time this Article Eleventh became effective."
IN WITNESS WHEREOF, this Restated Certificate of Incorporation is
executed this 23rd day of May, 2000.
ROLLINS TRUCK LEASING CORP.
By:
Klaus M. Belohoubek
Vice President - General Counsel
and Secretary
