EXHIBIT 3(i)
RESTATED
CERTIFICATE OF INCORPORATION
OF
EXXON CORPORATION
Exxon Corporation, a corporation organized and existing under the laws of
the State of New Jersey, restates and integrates its Certificate of
Incorporation, as heretofore restated and amended, to read in full as herein set
forth:
FIRST. The name of the corporation is:
EXXON CORPORATION
SECOND. The address of the corporation's registered office is 830 Bear
Tavern Road, West Trenton, New Jersey 08628-1020. The name of the
corporation's registered agent at such address, upon whom process against the
corporation may be served, is Corporation Service Company.
THIRD. The purposes for which the corporation is organized are to engage
in any or all activities within the purposes for which corporations now or at
any time hereafter may be organized under the New Jersey Business Corporation
Act and under all amendments and supplements thereto, or any revision thereof or
any statute enacted to take the place thereof, including but not limited to the
following:
(1) To do all kinds of mining, manufacturing and trading business;
transporting goods and merchandise by land or water in any manner; to buy, sell,
lease and improve lands; to build houses, structures, vessels, cars, wharves,
docks and piers; to lay and operate pipelines; to erect and operate telegraph
and telephone lines and lines for conducting electricity; to enter into and
carry out contracts of every kind pertaining to its business; to acquire, use,
sell and grant licenses under patent rights; to purchase or otherwise acquire,
hold, sell, assign and transfer shares of capital stock and bonds or other
evidences of indebtedness of corporations, and to exercise all the privileges of
ownership including voting upon the securities so held; to carry on its business
and have offices and agencies therefor in all parts of the world; and to hold,
purchase, mortgage and convey real estate and personal property within or
without the State of New Jersey;
(2) To engage in any activities encompassed within this Article Third
directly or through a subsidiary or subsidiaries and to take any and all acts
deemed appropriate to promote the interests of such subsidiary or subsidiaries,
including, without limiting the foregoing, the following: making contracts and
incurring liabilities for the benefit of such subsidiary or subsidiaries;
transferring or causing to be transferred to any such subsidiary or subsidiaries
assets of this corporation; guaranteeing dividends on any shares of the capital
stock of any such subsidiary; guaranteeing the principal and interest or either
of the bonds, debentures, notes or other evidences of indebtedness issued or
obligations incurred by any such subsidiary
or subsidiaries; securing said bonds, debentures, notes or other evidences of
indebtedness so guaranteed by mortgage of or security interest in the property
of this corporation; and contracting that said bonds, debentures, notes or other
evidences of indebtedness so guaranteed, whether secured or not, may be
convertible into shares of this corporation upon such terms and conditions as
may be approved by the board of directors;
(3) To guarantee the bonds, debentures, notes or other evidences of
indebtedness issued, or obligations incurred, by any corporation, partnership,
limited partnership, joint venture or other association in which this
corporation at the time such guarantee is made has a substantial interest or
where such guarantee is otherwise in furtherance of the interests of this
corporation; and
(4) To exercise as a purpose or purposes each power granted to corporations
by the New Jersey Business Corporation Act or by any amendment or supplement
thereto or by any statute enacted to take the place thereof, insofar as such
powers authorize or may hereafter authorize corporations to engage in
activities.
FOURTH. The aggregate number of shares which the corporation shall have
authority to issue is two billion two hundred million (2,200,000,000) shares
divided into two hundred million (200,000,000) shares of preferred stock without
par value and two billion (2,000,000,000) shares of common stock without par
value.
(1) The board of directors of the corporation is authorized at any time or
from time to time (i) to divide the shares of preferred stock into classes and
into series within any class or classes of preferred stock; (ii) to determine
for any such class or series its designation, relative rights, preferences and
limitations; (iii) to determine the number of shares in any such class or series
(including a determination that such class or series shall consist of a single
share); (iv) to increase the number of shares of any such class or series
previously determined by it and to decrease such previously determined number of
shares to a number not less than that of the shares of such class or series then
outstanding; (v) to change the designation or number of shares, or the relative
rights, preferences and limitations of the shares, of any theretofore
established class or series no shares of which have been issued; and (vi) to
cause to be executed and filed without further approval of the shareholders such
amendment or amendments to the Restated Certificate of Incorporation as may be
required in order to accomplish any of the foregoing. In particular, but
without limiting the generality of the foregoing, the board of directors is
authorized to determine with respect to the shares of any class or series of
preferred stock:
(a) whether the holders thereof shall be entitled to cumulative, non-
cumulative or partially cumulative dividends or to no dividends and, with
respect to shares entitled to dividends, the dividend rate or rates (which may
be fixed or variable and may be made dependent upon facts ascertainable outside
of the Restated Certificate of Incorporation) and any other terms and conditions
relating to such dividends;
(b) whether the holders thereof shall be entitled to receive dividends
payable on a parity with or subordinate or in preference to the dividends
payable on any other class or series of shares of the corporation;
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(c) whether, and if so to what extent and upon what terms and conditions,
the holders thereof shall be entitled to preferential rights upon the
liquidation of, or upon any distribution of the assets of, the corporation;
(d) whether, and if so upon what terms and conditions, such shares shall be
convertible into other securities;
(e) whether, and if so upon what terms and conditions, such shares shall be
redeemable;
(f) the terms and amount of any sinking fund provided for the purchase or
redemption of such shares; and
(g) the voting rights, if any, to be enjoyed by such shares and the terms
and conditions for the exercise thereof.
(2) Each holder of shares of common stock shall be entitled to one vote for
each share of common stock held of record by such holder on all matters on which
holders of shares of common stock are entitled to vote.
(3) No holder of any shares of common or preferred stock of the corporation
shall have any right as such holder (other than such right, if any, as the board
of directors in its discretion may determine) to purchase, subscribe for or
otherwise acquire any unissued or treasury shares, or any option rights, or
securities having conversion or option rights, of the corporation now or
hereafter authorized.
(4) The relative voting, dividend, liquidation and other rights,
preferences and limitations of the shares of the class of preferred stock
designated "Class A Preferred Stock" and the class of preferred stock designated
"Class B Preferred Stock" are as set forth in this Article FOURTH and in Exhibit
A to this Restated Certificate of Incorporation.
FIFTH. The following is a list of the names and residences of the original
shareholders, and of the number of shares held by each:
H. M. Flagler of New York City, one share.
Paul Babcock, Jr. of Jersey City, one share.
James McGee of Plainfield, New Jersey, one share.
Thos. C. Bushnell of Morristown, New Jersey, one share.
John D. Rockefeller of Cleveland, Ohio, }
Wm. Rockefeller of New York City, }
J. A. Bostwick of New York City, }
John D. Archbold of New York City, }
O. H. Payne of Cleveland, Ohio, }
Wm. G. Warden of Philadelphia, Pa., }
Benj. Brewster of New York City, }
Chas. Pratt of Brooklyn, N.Y., }
and H. M. Flagler of New York City. }
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Trustees of Standard Oil Trust, twenty-nine thousand nine hundred and
ninety-six shares (29,996), of which twenty-one thousand seven hundred and
twenty-four shares (21,724) were issued for property purchased and
necessary for the business of this corporation.
SIXTH. The number of directors of the corporation as of December 1, 1996
is 12 and their names and business office addresses are:
Dr. Michael J. Boskin Mr. Harry J. Longwell
Hoover Institution 5959 Las Colinas Boulevard
Stanford University Irving, Texas 75039-2298
Stanford, California 94305-6010
Mr. D. Wayne Calloway Mrs. Marilyn Carlson Nelson
PepsiCo, Inc. Carlson Holdings, Inc.
700 Anderson Hill Road 12755 Highway 55
Purchase, New York 10577 Minneapolis, Minnesota 55441
Mr. Jess Hay Mr. Lee R. Raymond
Texas Commerce Tower 5959 Las Colinas Boulevard
2200 Ross Avenue Irving, Texas 75039-2298
Dallas, Texas 75201-2764
Mr. James R. Houghton Dr. John H. Steele
Corning Incorporated Woods Hole Oceanographic
80 E. Market Street Institution
Corning, New York 14830 Woods Hole, Massachusetts 02543
Mr. William R. Howell Mr. Robert E. Wilhelm
J. C. Penney Company, Inc. 5959 Las Colinas Boulevard
6501 Legacy Drive Irving, Texas 75039-2298
Plano, Texas 75024-3698
Mr. Philip E. Lippincott Mr. Joseph D. Williams
P.O. Box 2159 Warner-Lambert Company
Park City, Utah 84060 182 Tabor Road
Morris Plains, New Jersey 07950
SEVENTH. The number of directors at any time may be increased or
diminished by vote of the board of directors, and in case of any such increase
the board of directors shall have power to elect each such additional director
to hold office until the next succeeding annual meeting of shareholders and
until his successor shall have been elected and qualified.
The board of directors, by the affirmative vote of a majority of the
directors in office, may remove a director or directors for cause where, in the
judgment of such majority, the continuation of the director or directors in
office would be harmful to the corporation and may suspend the director or
directors for a reasonable period pending final determination that cause exists
for such removal.
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The board of directors from time to time shall determine whether and to
what extent, and at what times and places, and under what conditions and
regulations, the accounts and books of the corporation, or any of them, shall be
open to the inspection of the shareholders; and no shareholder shall have any
right of inspecting any account or book or document of the corporation, except
as conferred by statute or authorized by the board of directors, or by a
resolution of the shareholders.
EIGHTH. The following action may be taken by the affirmative vote of a
majority of the votes cast by the holders of shares of the corporation entitled
to vote thereon:
(1) The adoption by the shareholders of a proposed amendment of the
certificate of incorporation of the corporation;
(2) The adoption by the shareholders of a proposed plan of merger or
consolidation involving the corporation;
(3) The approval by the shareholders of a sale, lease, exchange, or other
disposition of all, or substantially all, the assets of the corporation
otherwise than in the usual and regular course of business as conducted by the
corporation; and
(4) Dissolution.
NINTH. Except as otherwise provided by statute or by this certificate of
incorporation or the by-laws of the corporation as in each case the same may be
amended from time to time, all corporate powers may be exercised by the board of
directors. Without limiting the foregoing, the board of directors shall have
power, without shareholder action:
(1) To authorize the corporation to purchase, acquire, hold, lease,
mortgage, pledge, sell and convey such property, real, personal and mixed,
without as well as within the State of New Jersey, as the board of directors may
from time to time determine, and in payment for any property to issue, or cause
to be issued, shares of the corporation, or bonds, debentures, notes or other
obligations or evidence of indebtedness thereof secured by pledge, security
interest or mortgage, or unsecured; and
(2) To authorize the borrowing of money, the issuance of bonds, debentures,
notes and other obligations or evidences of indebtedness of the corporation,
secured or unsecured, and the inclusion of provisions as to redeemability and
convertibility into shares of stock of the corporation or otherwise, and, as
security for money borrowed or bonds, debentures, notes and other obligations or
evidences of indebtedness issued by the corporation, the mortgaging or pledging
of any property, real, personal, or mixed, then owned or thereafter acquired by
the corporation.
TENTH. To the full extent from time to time permitted by law, no director
or officer of the corporation shall be personally liable to the corporation or
its shareholders for damages for breach of any duty owed to the corporation or
its shareholders. Neither the amendment or repeal of this Article, nor the
adoption of any provision of this certificate of incorporation inconsistent with
this Article, shall eliminate or reduce the protection afforded by this Article
to
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a director or officer of the corporation with respect to any matter which
occurred, or any cause of action, suit or claim which but for this Article would
have accrued or arisen, prior to such amendment, repeal or adoption.
IN WITNESS WHEREOF, Exxon Corporation has caused this Restated Certificate
of Incorporation to be duly executed as of December 16, 1996.
EXXON CORPORATION
L. R. RAYMOND
Chairman of the Board
FILED AND RECORDED
December 18, 1996
Lonna R. Hooks
Secretary of State New Jersey
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EXHIBIT A
PART I
CLASS A PREFERRED STOCK
Section 1. Designation and Amount; Special Purpose Restricted Transfer
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Issue.
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(A) The shares of this class of preferred stock shall be designated as "Class
A Preferred Stock" (referred to herein as the "Class A Preferred Stock") and the
aggregate number of shares constituting such class which the Corporation shall
have the authority to issue is 16,500,000. The shares of this class shall have
a stated value of $61.50 per share (the "Stated Value").
(B) Shares of Class A Preferred Stock shall be issued only to a trustee
acting on behalf the Plan (as defined in Section 9(F)(vii)). In the event of
any transfer of shares of Class A Preferred Stock to any person other than the
Corporation or the trustee of the Plan, the shares of Class A Preferred Stock so
transferred, upon such transfer and without any further action by the
Corporation or the holder, shall be automatically converted into shares of the
Corporation's Common Stock without par value (the "Common Stock") pursuant to
Section 5 hereof and no such transferee shall have any of the voting powers,
preferences and relative, participating, optional or special rights ascribed to
shares of Class A Preferred Stock hereunder but, rather, only the powers and
rights pertaining to the Common Stock into which such shares of Class A
Preferred Stock shall be so converted. In the event of such a conversion, the
transferee of the shares of Class A Preferred Stock shall be treated for all
purposes as the record holder of the shares of Common Stock into which such
shares of Class A Preferred Stock have been automatically converted as of the
date of such transfer; provided, however, that the pledge of Class A Preferred
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Stock as collateral under any credit agreement for the financing or refinancing
of the initial purchase of the Class A Preferred Stock by the Plan shall not
constitute a transfer for purposes of this Section 1. Certificates representing
shares of Class A Preferred Stock shall be legended to reflect such restrictions
on transfer. Notwithstanding the foregoing provisions of this Section 1(B),
shares of Class A Preferred Stock (i) upon allocation to the account of a
participant in the Plan, shall be converted into shares of Common Stock or Class
B Preferred Stock, as the case may be, pursuant to Section 5 hereof and the
shares of Common Stock issued upon such conversion may be transferred by the
holder thereof as permitted by law and the shares of Class B Preferred Stock
issued upon such conversion may be transferred by the holder only as permitted
by Part II hereof and (ii) shall be redeemable by the Corporation upon the terms
and conditions provided by Sections 6, 7 and 8 hereof.
Section 2. Dividends and Distributions.
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(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Class A Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds available under
applicable law and the Certificate of Incorporation, cumulative cash dividends
("Preferred Dividends") in an amount per share equal to $4.68 per annum and no
more, payable (x) monthly in arrears, one-twelfth on the 20th day of each month,
commencing on July 20, 1989 and ending on June 20, 1990, and thereafter (y)
quarterly in arrears, one-quarter on the 20th day of each March, June, September
and December in each year (each such monthly and quarterly date a "Dividend
Payment Date"), to holders of record at the start of business on such Dividend
Payment Date. In the event that
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any Dividend Payment Date shall occur on any day other than a "Business Day" (as
defined in Section 9(F)(i)), the dividend payment due on such Dividend Payment
Date shall be paid on the Business Day immediately succeeding such Dividend
Payment Date. Preferred Dividends shall begin to accrue on outstanding shares of
Class A Preferred Stock from the date of issuance of such shares of Class A
Preferred Stock. Preferred Dividends shall accrue on a daily basis whether or
not the Corporation shall have earnings or surplus at the time. Preferred
Dividends accrued after the date of issuance for any period less than a full
monthly or quarterly period, as the case may be, between Dividend Payment Dates
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and such a proportional dividend shall accrue for the period from the
date of issuance until the end of the dividend payment period in which such
issuance occurs. Accumulated but unpaid Preferred Dividends shall accumulate as
of the Dividend Payment Date on which they first become payable, but no interest
shall accrue on accumulated but unpaid Preferred Dividends.
(B) So long as any Class A Preferred Stock shall be outstanding, no dividend
shall be declared or paid or set apart for payment on any other class of stock
ranking on a parity with the Class A Preferred Stock as to dividends ("Parity
Stock"), unless there shall also be or have been declared and paid or set apart
for payment on the Class A Preferred Stock dividends ratably in proportion to
the respective amounts of dividends (a) accumulated and unpaid through all
dividend payment periods for the Class A Preferred Stock ending on or before the
dividend payment date of such Parity Stock and (b) accumulated and unpaid on
such Parity Stock through the dividend payment period on such Parity Stock next
preceding such dividend payment date. So long as any Class A Preferred Stock
shall be outstanding, in the event that full cumulative dividends on the Class A
Preferred Stock have not been declared and paid or set apart for payment for all
prior dividend payment periods, the Corporation shall not declare or pay or set
apart for payment any dividends or make any other distributions on, or make any
payment on account of the purchase, redemption or other retirement of, any other
class of stock or series thereof of the Corporation ranking as to dividends
junior to the Class A Preferred Stock ("Junior Stock") until full cumulative and
unpaid dividends on the Class A Preferred Stock shall have been paid or declared
and set apart for payment; provided, however, that the foregoing shall not apply
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to (i) any dividend payable solely in any shares of any Junior Stock, or (ii)
the acquisition of shares of any Junior Stock either (x) pursuant to any
employee or director incentive or benefit plan or arrangement (including any
employment, severance or consulting agreement) of the Corporation or any
subsidiary of the Corporation heretofore or hereafter adopted or (y) in exchange
solely for shares of any other Junior Stock.
Section 3. Voting Rights. The holders of shares of Class A Preferred Stock
--------- -------------
shall have the following voting rights:
(A) The holders of Class A Preferred Stock shall be entitled to vote on all
matters submitted to a vote of the holders of Common Stock of the Corporation,
voting together as one class with the holders of Common Stock and any other
class or series of preferred stock so voting as one class. Each share of the
Class A Preferred Stock shall entitle the holder thereof to a number of votes
equal to the number of shares of Common Stock into which such share of Class A
Preferred Stock could be converted pursuant to the first sentence of Section
5(A) hereof on the record date for determining the shareholders entitled to
vote, rounded to the nearest one-tenth of a vote; it being understood that
whenever the "Conversion Ratio" (as defined in Section 5 hereof) is adjusted
pursuant to Section 9 hereof, the voting rights of the Class A Preferred Stock
shall also be similarly adjusted.
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(B) Except as otherwise required by law, holders of Class A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock or
any other class or series of preferred stock) for the taking of any corporate
action.
Section 4. Liquidation, Dissolution or Winding-Up.
--------- --------------------------------------
(A) Upon any voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation, the holders of Class A Preferred Stock shall be entitled to
receive out of assets of the Corporation which remain after satisfaction in full
of all valid claims of creditors of the Corporation and which are available for
payment to shareholders, and subject to the rights of the holders of any class
of stock of the Corporation ranking senior to or on a parity with the Class A
Preferred Stock in respect of distributions upon liquidation, dissolution or
winding-up of the Corporation, before any amount shall be paid or distributed
among the holders of Common Stock or any other class of stock ranking junior to
the Class A Preferred Stock in respect of distributions upon liquidation,
dissolution or winding-up of the Corporation, liquidating distributions in an
aggregate amount of $61.50 per share of Class A Preferred Stock plus an amount
equal to all accrued and unpaid dividends thereon to the date fixed for
distribution, and no more. If upon any liquidation, dissolution or winding-up
of the Corporation, the amounts payable with respect to the Class A Preferred
Stock and any other class of stock ranking as to any such distribution on a
parity with the Class A Preferred Stock are not paid in full, the holders of the
Class A Preferred Stock and such other class of stock shall share ratably in any
distribution of assets in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount to which they are
entitled as provided by the foregoing provisions of this Section 4(A), the
holders of shares of Class A Preferred Stock shall not be entitled to any
further right or claim to any of the remaining assets of the Corporation.
(B) Neither the merger, consolidation or combination of the Corporation with
or into any other corporation, nor the sale, lease, transfer or other exchange
of all or any portion of the assets of the Corporation (or any purchase or
redemption of some or all of the shares of any class or series of stock of the
Corporation), shall be deemed to be a dissolution, liquidation or winding-up of
the affairs of the Corporation for purposes of this Section 4, but the holders
of Class A Preferred Stock shall nevertheless be entitled in the event of any
such transaction to the rights provided by Section 8 hereof.
(C) Written notice of any voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, stating the payment date or dates when, and
the place or places where, the amounts distributable to holders of Class A
Preferred Stock and any other class or series of preferred stock in such
circumstances shall be payable, and stating that, except in the case of Class A
Preferred Stock represented by uncertificated shares, such payment will be made
only after the surrender (or submission for notation of any partial payment) of
such holder's certificates representing shares of Class A Preferred Stock, shall
be given by first class mail, postage prepaid, mailed not less than twenty (20)
days prior to any payment date stated therein, to the holders of Class A
Preferred Stock, at the address shown on the books of the Corporation or any
transfer agent for the Class A Preferred Stock.
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Section 5. Conversion into Common Stock or Class B Preferred Stock.
--------- -------------------------------------------------------
(A) A holder of shares of Class A Preferred Stock shall be entitled at any
time, but not later than the close of business on the Redemption Date (as
hereinafter defined) of such shares pursuant to Section 6, 7 or 8 hereof, to
cause any or all of such shares to be converted into a number of shares of
Common Stock for each share of Class A Preferred Stock which initially shall be
one and which shall be adjusted as hereinafter provided (and, as so adjusted, is
hereinafter sometimes referred to as the "Conversion Ratio"). In addition to
the foregoing and subject to Section 5(B) hereof, a holder of shares of Class A
Preferred Stock upon allocation of such shares to the account of a participant
in the Plan shall be required to convert each such share of Class A Preferred
Stock into the greater of (i) that number of shares of Common Stock or Class B
Preferred Stock, as the case may be, which shall be the quotient obtained by
dividing the Stated Value of each share of Class A Preferred Stock by the
greater of (x) $15 divided by the Conversion Ratio or (y) the average of the
high and low sales prices for a share of Common Stock on the trading day next
preceding the Conversion Date (as hereinafter defined) on which one or more
sales of shares of Common Stock occur, all as reported on the Composite Tape (as
hereinafter defined), or (ii) that number of shares of Common Stock or Class B
Preferred Stock equal to the Conversion Ratio. The Corporation's determination
in good faith in respect of the number of shares to be issued upon any and all
conversions pursuant to the preceding sentence shall be conclusive.
(B) Any holder of shares of Class A Preferred Stock desiring or required to
convert such shares into shares of Common Stock or Class B Preferred Stock, as
the case may be, shall surrender the certificate or certificates representing
the shares of Class A Preferred Stock being converted, duly assigned or endorsed
for transfer to the Corporation (or accompanied by duly executed stock powers
relating thereto) in case of a request for registration in a name other than
that of such holder, at the offices of the Corporation or the transfer agent for
the Common Stock or Class B Preferred Stock, as the case may be, accompanied by
written notice of conversion. Such notice of conversion shall specify (i) the
number of shares of Class A Preferred Stock to be converted, and the name or
names in which such holder wishes the certificate or certificates for Common
Stock or Class B Preferred Stock, as the case may be, and for any shares of
Class A Preferred Stock not to be so converted to be issued (or the name or
names in which ownership of such shares is to be registered in the event that
they are to be uncertificated), (ii) the address or addresses to which such
holder wishes delivery to be made of such new certificates to be issued upon
such conversion, and (iii) whether the conversion is being effected pursuant to
the second sentence of Section 5(A) hereof, and if so, whether the shares issued
upon conversion will be shares of Common Stock or Class B Preferred Stock. In
the case of a conversion of shares of Class A Preferred Stock required pursuant
to the second sentence of Section 5(A), if such notice fails to specify the
class of stock desired, the holder thereof shall receive shares of Class B
Preferred Stock.
(C) A conversion of shares of Class A Preferred Stock into shares of Common
Stock or Class B Preferred Stock, as the case may be, pursuant to Section 5(A)
shall be effective immediately before the close of business on the day of the
later of (i) the surrender to the Corporation of the certificate or certificates
for the shares of Series A Preferred Stock to be converted, duly assigned or
endorsed for transfer to the Corporation (or accompanied by duly executed stock
powers relating thereto) in case of a request for registration in a name other
than that of such holder and (ii) the giving of the notice of conversion as
provided herein (the "Conversion Date"). On and after such Conversion Date, the
person or persons entitled to receive the Common Stock or Class B Preferred
Stock, as the case may be, issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock or
Class B Preferred Stock, as the case may be.
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(D) Promptly after the Conversion Date for shares of Class A Preferred Stock
to be converted, the Corporation or the transfer agent for the Common Stock or
the Class B Preferred Stock, as the case may be, shall issue and send by hand
delivery (with receipt to be acknowledged) or by first class mail, postage
prepaid, to the holder of such shares or to such holder's designee, at the
address designated by such holder, a certificate or certificates for the number
of shares of Common Stock or Class B Preferred Stock, to which such holder shall
be entitled upon conversion. In the event that there shall have been
surrendered a certificate or certificates representing shares of Class A
Preferred Stock only part of which are to be converted, the Corporation or the
transfer agent for the Common Stock or Class B Preferred Stock, as the case may
be, shall issue and deliver to such holder or such holder's designee a new
certificate or certificates representing the number of shares of Class A
Preferred Stock which shall not have been converted.
(E) The Corporation shall not be obligated to deliver to holders of Class A
Preferred Stock any fractional share or shares of Common Stock or Class B
Preferred Stock, as the case may be, issuable upon any conversion of such shares
of Class A Preferred Stock, but in lieu thereof may make a cash payment in
respect thereof in any manner permitted by law. The determination in good faith
by the Corporation of the amount of any such cash payments shall be conclusive.
(F) The Corporation shall at all times reserve and keep available out of its
authorized and unissued and/or treasury Common Stock and Class B Preferred Stock
solely for issuance upon the conversion of shares of Class A Preferred Stock as
herein provided, free from any preemptive rights, the maximum number of shares
of Common Stock and Class B Preferred Stock as shall from time to time be
issuable upon the conversion of all the shares of Class A Preferred Stock then
outstanding.
Section 6. Redemption at the Option of the Corporation.
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(A) The Class A Preferred Stock shall be redeemable, in whole or in part, at
the option of the Corporation at any time at the Stated Value, plus an amount
equal to all accrued and unpaid dividends thereon to the date fixed for
redemption (the close of business on such date being referred to as the
"Redemption Date"); provided that such redemption may be made on or after
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December 20, 1990 and prior to July 20, 1995 only if (i) the Corporation shall
have requested that the trustee of the Plan repay the indebtedness incurred by
such trustee to purchase the shares of Class A Preferred Stock and (ii) either
(x) Section 404(k) of the Code (as hereinafter defined) is repealed or amended
or the Internal Revenue Service or the Treasury Department promulgates a Revenue
Ruling or Regulation or a federal Court of Appeals issues a decision involving
the Corporation, at any time on or after December 20, 1990 and prior to July 20,
1995 with the effect that less than 100% of the dividends payable on the shares
of any capital stock of the Corporation including, without limitation, Class A
Preferred Stock, Class B Preferred Stock or Common Stock held in the Plan is
deductible by the Corporation, when paid to participants in the Plan or their
beneficiaries or used to repay indebtedness as described in Section 404(k) of
the Code, from its gross income for purposes of determining its liability for
the federal income tax imposed by Section 11 of the Code or (y) the Code is
amended at any time on or after December 20, 1990 and prior to July 20, 1995
(other than to change the rate of any existing tax imposed by the Code) or the
Internal Revenue Service or the Treasury Department promulgates a Revenue Ruling
or Regulation or a federal Court of Appeals issues a decision involving the
Corporation, with the effect that the Corporation's liability for the
alternative minimum tax imposed by Section 55 of the Code, the
11
general federal income tax imposed by Section 11 of the Code or any other tax
hereafter imposed by the Code is increased solely by reason of its claiming a
deduction in respect of dividends paid on the shares of any capital stock of the
Corporation including, without limitation, Class A Preferred Stock, Class B
Preferred Stock or Common Stock held in the Plan in a manner consistent with
Section 404(k) of the Code. Payment of the redemption price shall be made by the
Corporation in cash or shares of Common Stock or a combination thereof, as
permitted by paragraph (C) of this Section 6. From and after the Redemption
Date, dividends on shares of Class A Preferred Stock called for redemption will
cease to accrue, such shares will no longer be deemed to be outstanding and all
rights in respect of such shares of the Corporation shall cease, except the
right to receive the redemption price. No interest shall accrue on the
redemption price after the Redemption Date. If less than all of the outstanding
shares of Class A Preferred Stock are to be redeemed, the Corporation shall
either redeem a portion of the shares of each holder determined pro rata based
on the number of shares held by each holder or shall select the shares to be
redeemed by lot or as may be otherwise determined by the Board of Directors of
the Corporation.
(B) Unless otherwise required by law, notice of redemption pursuant to
paragraph (A) of this Section 6 will be sent to the holders of Class A Preferred
Stock at the address shown on the books of the Corporation or any transfer agent
for the Class A Preferred Stock by first class mail, postage prepaid, mailed not
less than thirty (30) days nor more than sixty (60) days prior to the Redemption
Date. Such Class A Preferred Stock shall continue to be entitled to the
conversion rights provided in Section 5 hereof through such Redemption Date.
Each such notice shall state: (i) the Redemption Date; (ii) the total number of
shares of the Class A Preferred Stock to be redeemed and, if fewer than all the
shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption price and the intended form of
payment; (iv) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such Redemption Date; and (vi) a
summary of the conversion rights of the shares to be redeemed, the period within
which conversion rights may be exercised, and the Conversion Ratio in effect at
the time. Upon surrender of the certificate for any shares so called for
redemption and not previously converted (or upon giving the notice of redemption
in the case of uncertificated shares), but not earlier than the Redemption Date,
the Corporation shall pay to the holder of such shares or its designee the
redemption price set forth pursuant to this Section 6.
(C) The Corporation, at its option, may make payment of the redemption price
required upon redemption of shares of Class A Preferred Stock pursuant to
Section 6 or 7 hereof in cash or in shares of Common Stock or in a combination
of such shares and cash, any such shares of Common Stock to be valued for such
purpose at their Fair Market Value (as defined in Section 9(F)(iii)) on the
Redemption Date. Any shares of Common Stock so issued or delivered (or issued
or delivered pursuant to Section 7) shall be deemed to have been issued or
delivered to the holder of the Class A Preferred Stock as of the Redemption Date
and such holder shall be deemed to have become the record holder thereof as of
the Redemption Date.
Section 7. Other Redemption Rights.
--------- -----------------------
Shares of Class A Preferred Stock shall be redeemed by the Corporation for
cash or, if the Corporation so elects, in shares of Common Stock, or a
combination of such shares and cash (any such shares of Common Stock to be
valued for such purpose in accordance with Section 6(C)), at a redemption price
equal to the Stated Value plus accrued and unpaid dividends thereon to the date
fixed for redemption, at the option of the holder, at any time and
12
from time to time upon notice to the Corporation given not less than five (5)
Business Days prior to the Redemption Date fixed by the holder in such notice
(i) in the event that the Plan is determined by the Internal Revenue Service not
to be qualified within the meaning of Sections 401(a) and 4975(e)(7) of the
Internal Revenue Code of 1986, as amended from time to time (the "Code") or (ii)
in the event that the Plan is terminated in accordance with its terms.
Section 8. Consolidation, Combination, Merger, etc.
--------- ----------------------------------------
(A) In the event that the Corporation shall consummate any consolidation,
combination, merger or substantially similar transaction, pursuant to which the
outstanding shares of Common Stock are by operation of law exchanged solely for
or changed, reclassified or converted solely into stock of any successor or
resulting corporation (including the Corporation) that constitutes "qualifying
employer securities" with respect to a holder of Class A Preferred Stock within
the meaning of Section 409(1) of the Code and Section 407(d)(5) of the Employee
Retirement Income Security Act of 1974, as amended, or any successor provisions
of law, and, if applicable, for a cash payment in lieu of fractional shares, if
any, the shares of Class A Preferred Stock of such holder shall in connection
therewith be exchanged for or converted into preferred stock of such successor
or resulting corporation, having in respect of such corporation insofar as
possible the same powers, preferences and relative, participating, optional or
other special rights (including the redemption rights provided by Sections 6, 7
and 8 hereof), and the qualifications, limitations or restrictions thereon, that
the Class A Preferred Stock had immediately prior to such transaction, except
that after such transaction each share of the Class A Preferred Stock shall be
convertible, otherwise on the terms and conditions provided by Section 5 hereof,
into the number and kind of qualifying employer securities so receivable by a
holder of the number of shares of Common Stock into which such shares of Class A
Preferred Stock could have been converted pursuant to the first sentence of
Section 5(A) hereof immediately prior to such transaction; provided, however,
-------- -------
that if by virtue of the structure of such transaction, a holder of Common Stock
is required to make an election with respect to the nature and kind of
consideration to be received in such transaction, such holder of shares of Class
A Preferred Stock shall be entitled to make an equivalent election as to the
nature and kind of consideration it shall receive, and if such election cannot
practicably be made by the holders of the Class A Preferred Stock, then the
shares of Class A Preferred Stock shall, by virtue of such transaction and on
the same terms as apply to the holders of Common Stock, be convertible into or
exchangeable for the aggregate amount of qualifying employer securities (payable
in like kind and proportion) receivable by a holder of the number of shares of
Common Stock into which such shares of Class A Preferred Stock could have been
converted immediately prior to such transaction if such holder of Common Stock
failed to exercise any rights of election to receive any kind or amount of
qualifying employer securities receivable upon such transaction (provided that,
--------
if the kind or amount of qualifying employer securities receivable upon such
transaction is not the same for each non-electing share, then the kind and
amount of qualifying employer securities receivable upon such transaction for
each such non-electing share shall be the kind and amount so receivable per
share by a plurality of the non-electing shares). The conversion rights of the
class of preferred stock of such successor or resulting corporation for which
the Class A Preferred Stock is exchanged or into which it is converted, shall
successively be subject to adjustments pursuant to Section 9 hereof after any
such transactions as nearly equivalent as practicable to the adjustments
provided for by such Section prior to such transaction. The Corporation shall
not consummate any such merger, consolidation or similar transaction unless the
successor or resulting corporation shall have agreed to recognize and honor the
rights of the holders of Series A Preferred Stock set forth in this Section
8(A).
13
(B) In the event that the Corporation shall consummate any consolidation,
combination, merger or substantially similar transaction, pursuant to which the
outstanding shares of Common Stock are by operation of law exchanged for or
changed, reclassified or converted into other stock or securities or cash or any
other property, or any combination thereof, other than solely qualifying
employer securities (as referred to in Section 8(A)) and cash payments, if
applicable, in lieu of fractional shares, outstanding shares of Class A
Preferred Stock shall, without any action on the part of the Corporation or any
holder thereof (but subject to Section 8(C)), be deemed to have been converted
pursuant to the first sentence of Section 5(A) hereof immediately prior to the
consummation of such merger, consolidation, combination or similar business
combination transaction into the number of shares of Common Stock into which
such shares of Class A Preferred Stock could have been converted pursuant to the
first sentence of Section 5(A) hereof at such time so that each share of Class A
Preferred Stock shall, by virtue of such transaction and on the same terms as
apply to the holders of Common Stock, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property (payable in like
kind and proportion) receivable by a holder of the number of shares of Common
Stock into which such share of Class A Preferred Stock could have been converted
pursuant to the first sentence of Section 5(A) hereof immediately prior to such
transaction; provided, however, that if by virtue of the structure of such
-------- -------
transaction, a holder of Common Stock is required to make an election with
respect to the nature and kind of consideration to be received in such
transaction, the holder of Class A Preferred Stock shall be entitled to make an
equivalent election as to the kind of consideration it shall receive, and if
such election cannot practicably be made by the holders of the Class A Preferred
Stock, then the shares of Class A Preferred Stock shall, by virtue of such
transaction and on the same terms as apply to the holders of Common Stock, be
converted into or exchanged for the aggregate amount of stock, securities, cash
or other property (payable in like kind and proportion) receivable by a holder
of the number of shares of Common Stock into which such shares of Class A
Preferred Stock could have been converted immediately prior to such transaction
if such holder of Common Stock failed to exercise any rights of election as to
the kind or amount of stock, securities, cash or other property receivable upon
such transaction (provided that, if the kind or amount of stock, securities,
-------- ----
cash or other property receivable upon such transaction is not the same for each
non-electing share, then the kind and amount of stock, securities, cash or other
property receivable upon such transaction for each such non-electing share shall
be the kind and amount so receivable per share by a plurality of the non-
electing shares).
(C) In the event the Corporation shall enter into any agreement providing for
any consolidation, combination, merger or substantially similar transaction
described in Section 8(B), then the Corporation shall as soon as practicable
thereafter (and in any event at least twenty (20) business days before
consummation of such transaction) give notice of such agreement and the material
terms thereof to each holder of Class A Preferred Stock and each holder shall
have the right to elect, by written notice to the Corporation, to receive, upon
consummation of such transaction (if and when such transaction is consummated),
from the Corporation or the successor of the Corporation, in redemption and
retirement of such Class A Preferred Stock, a cash payment equal to the amount
payable in respect of shares of Class A Preferred Stock upon redemption pursuant
to Section 6(A) hereof as if the date of the consummation of such transaction
was the Redemption Date. No such notice of redemption shall be effective unless
given to the Corporation prior to the close of business on the second Business
Day prior to consummation of such transaction, unless the Corporation or the
successor of the Corporation shall waive such prior notice, but any notice of
redemption so given prior to such time may be withdrawn by notice of withdrawal
given to the Corporation prior to the close of business on the second Business
Day prior to consummation of such transaction.
14
Section 9. Anti-dilution Adjustments.
--------- -------------------------
(A) In the event the Corporation shall, at any time or from time to time
while any of the shares of the Class A Preferred Stock are outstanding, (i) pay
a dividend or make a distribution in respect of the Common Stock in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
in each case whether by reclassification of shares, recapitalization of the
Corporation (including a recapitalization effected by a merger or consolidation
to which Section 8 hereof does not apply) or otherwise, the Conversion Ratio in
effect immediately prior to such action shall be adjusted by multiplying such
Conversion Ratio by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event, and the denominator of
which is the number of shares of Common Stock outstanding immediately before
such event. An adjustment made pursuant to this Section 9(A) shall be given
effect, upon payment of such a dividend or distribution, as of the record date
for the determination of shareholders entitled to receive such dividend or
distribution (on a retroactive basis) and in the case of a subdivision or
combination shall become effective immediately as of the effective date thereof.
(B) In the event the Corporation shall, at any time or from time to time
while any shares of Class A Preferred Stock are outstanding, issue rights,
options or warrants to all holders of its outstanding Common Stock, without any
charge to such holders, entitling them (for a period expiring within forty-five
(45) days after the record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share which is more than 2% lower at the
record date mentioned below than the then Current Market Price per share of
Common Stock, the Conversion Ratio in effect immediately prior to such action
shall, subject to paragraphs (D) and (E) of this Section 9, be adjusted by
multiplying such Conversion Ratio by a fraction (i) the numerator of which shall
be the number of shares of Common Stock outstanding on the date of issuance of
such rights, options or warrants plus the number of additional shares of Common
Stock issued upon exercise thereof, and (ii) the denominator of which shall be
the number of shares of Common Stock outstanding on the date of issuance of such
rights, options or warrants plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so issued would
purchase at the then Current Market Price per share of Common Stock. Such
adjustment shall be made whenever such rights, options or warrants have expired,
and shall become effective retroactively immediately after the record date for
the determination of shareholders entitled to receive such rights, options or
warrants on the basis of the number of rights, options or warrants actually
exercised.
(C) In the event the Corporation shall, at any time or from time to time
while any of the shares of Class A Preferred Stock are outstanding, make an
Extraordinary Distribution (as defined in Section 9(F)(ii)) in respect of the
Common Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Corporation (other than a recapitalization or
reclassification effected by a merger, combination or consolidation to which
Section 8 hereof applies), the Conversion Ratio in effect immediately prior to
such Extraordinary Distribution shall, subject to paragraphs (D) and (E) of this
Section 9, be adjusted by multiplying such Conversion Ratio by a fraction, the
numerator of which shall be the product of (i) the number of shares of Common
Stock outstanding immediately before such Extraordinary Distribution and (ii)
the Fair Market Value of a share of Common Stock on the Valuation Date (as
defined in Section 9(F)(vi)) with respect to an Extraordinary Distribution, and
the denominator of which shall be (i) the product of (x) the number of shares of
Common Stock outstanding immediately before such Extraordinary Distribution and
(y) the Fair Market Value of a share of Common
15
Stock on the Valuation Date with respect to an Extraordinary Distribution, minus
-----
(ii) the Fair Market Value of the Extraordinary Distribution on the Valuation
Date. The Corporation shall send each holder of Class A Preferred Stock notice
of its intent to make any Extraordinary Distribution at the same time as, or as
soon as practicable after, such intent is first communicated (including by
announcement of a record date in accordance with the rules of the principal
stock exchange on which the Common Stock is listed or admitted to trading) to
holders of Common Stock. Such notice shall indicate the intended record date and
the amount and nature of such dividend or distribution, and the Conversion Ratio
in effect at such time.
(D) Notwithstanding any other provisions of this Section 9, the Corporation
shall not be required to make any adjustment of the Conversion Ratio unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the Conversion Ratio. Any lesser adjustment shall be carried forward and shall
be made no later than the time of, and together with, the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least one percent (1%) in
the Conversion Ratio.
(E) The Corporation shall be entitled to make such additional adjustments in
the Conversion Ratio, in addition to those required by the foregoing provisions
of this Section 9, as shall be necessary in order that any dividend or
distribution in shares of capital stock of the Corporation, subdivision,
reclassification or combination of shares of stock of the Corporation or any
recapitalization of the Corporation shall not be taxable to holders of the
Common Stock.
(F) For purposes of this Exhibit A, the following definitions shall apply:
(i) "Business Day" shall mean each day that is not a Saturday, Sunday or
a day on which state or federally chartered banking institutions in New York
are required or authorized to be closed.
(ii) "Extraordinary Distribution" shall mean any dividend or other
distribution (effected while any of the shares of Class A Preferred Stock are
outstanding) of (x) cash to the extent that such dividend or distribution
when added to the amount of all cash dividends and distributions paid during
the preceding period of twelve (12) calendar months exceeds fifteen percent
(15%) of the aggregate Fair Market Value of all shares of Common Stock
outstanding on the declaration date for such Extraordinary Distribution
and/or (y) any shares of capital stock of the Corporation (other than shares
of Common Stock), other securities of the Corporation, evidences of
indebtedness of the Corporation or any other person or any other property
(including shares of any subsidiary of the Corporation), or any combination
thereof, but excluding rights, options or warrants to which Section 9(B)
refers (without regard to the subscription or purchase price provided for
therein).
(iii) "Fair Market Value" shall mean, as to shares of Common Stock or any
other class of publicly traded capital stock or securities of the
Corporation or any other issuer which are publicly traded, the average of
the Current Market Prices of such shares or securities for each day of the
Adjustment Period. The "Fair Market Value" of any security which is not
publicly traded or of any other property shall mean the fair value thereof
as determined by an independent investment banking or appraisal firm
experienced in the valuation of such securities or property, which firm
shall be selected in good faith by the Board of Directors of the Corporation
or a committee thereof, or, if no such investment banking or appraisal firm
is in the good faith judgment of the Board
16
of Directors or such committee available to make such determination, as
determined in good faith by the Board of Directors of the Corporation or
such committee.
(iv) "Current Market Price" of publicly traded shares of Common Stock
or any other class of capital stock or other security of the Corporation or
any other issuer shall mean (I) the last reported sales price, regular way,
or, if no sale takes place on such day, the average of the reported closing
bid and asked prices, regular way, in either case as reported on the
Composite Tape for New York Stock Exchange transactions (the "Composite
Tape") or, (II) if such security is not listed or admitted to trading on the
New York Stock Exchange (the "NYSE"), on the principal national securities
exchange on which such security is listed or admitted to trading or, (III)
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, (IV) if such security is not quoted on the NASDAQ National Market
System, the average of the closing bid and asked prices on each such day in
the over-the-counter market as reported by NASDAQ or, (V) if bid and asked
prices for such security on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such day as
furnished by any NYSE member firm regularly making a market in such security
selected for such purpose by the Board of Directors of the Corporation or a
committee thereof, in each case, on each trading day during the Adjustment
Period; provided, however, in determining the Current Market Price, the
-------- -------
value (as reasonably determined by the Board of Directors of the Corporation
or a committee thereof) of any "due-bill" or similar instrument which is
then associated with a share of Common Stock or any other class of capital
stock or other security, shall be deducted.
(v) "Adjustment Period" shall mean the period of five (5) consecutive
trading days preceding, and including, the date as of which the Fair Market
Value of a security is to be determined.
(vi) "Valuation Date" with respect to an Extraordinary Distribution
shall mean the date that is five (5) business days prior to the record date
for such Extraordinary Distribution.
(vii) "Plan" shall mean collectively the Corporation's Thrift and ESOP
plans and its Thrift and ESOP Trust.
(G) Whenever an adjustment to the Conversion Ratio and the related voting
rights of the Class A Preferred Stock is required pursuant hereto, the
Corporation shall forthwith deliver to the transfer agent(s) for the Common
Stock, the Class A Preferred Stock and Class B Preferred Stock, as the case may
be, and file with the Secretary of the Corporation, a statement signed by an
officer of the Corporation stating the adjusted Conversion Ratio determined as
provided herein, and the voting rights (as appropriately adjusted), of the Class
A Preferred Stock. Such statement shall set forth in reasonable detail such
facts as shall be necessary to show the reason and the manner of computing such
adjustment, including any determination of Fair Market Value involved in such
computation. Promptly after each adjustment to the Conversion Ratio and the
related voting rights of the Class A Preferred Stock, the Corporation shall mail
a notice thereof and of the then prevailing Conversion Ratio to each holder of
Class A Preferred Stock.
17
Section 10. Ranking; Cancellation of Shares.
---------- -------------------------------
(A) The Class A Preferred Stock shall rank senior to the Common Stock and the
Class B Preferred Stock as to the payment of dividends and senior to the Common
Stock as to the distribution of assets on liquidation, dissolution and winding-
up of the Corporation, and, unless otherwise provided in the Certificate of
Incorporation, as the same may be amended, the Class A Preferred Stock shall
rank on a parity with all other classes or series of the Corporation's preferred
stock, as to payment of dividends and the distribution of assets on liquidation,
dissolution or winding-up.
(B) Any shares of Class A Preferred Stock acquired by the Corporation by
reason of the conversion or redemption of such shares as provided hereby, or
otherwise so acquired, shall be cancelled as shares of Class A Preferred Stock
and restored to the status of authorized but unissued shares of preferred stock
of the Corporation, undesignated as to classes or series, and may thereafter be
reissued as part of a new class or series of such preferred stock as permitted
by law.
18
PART II
CLASS B PREFERRED STOCK
Section 1. Designation and Amount; Special Purpose Restricted Transfer
--------- -----------------------------------------------------------
Issue.
-----
(A) The shares of this class of preferred stock shall be designated as "Class
B Preferred Stock" and the aggregate number of shares constituting such class
which the Corporation shall have the authority to issue is 100,000,000.
(B) Shares of Class B Preferred Stock shall be issued only to a trustee
acting on behalf the Plan. In the event of any transfer of shares of Class B
Preferred Stock to any person other than the Corporation or the trustee of the
Plan, the shares of Class B Preferred Stock so transferred, upon such transfer
and without any further action by the Corporation or the holder, shall be
automatically converted into shares of the Corporation's Common Stock (the
"Common Stock") pursuant to Section 5 hereof and no such transferee shall have
any of the voting powers, preferences or relative, participating, optional or
special rights ascribed to shares of Class B Preferred Stock hereunder but,
rather, only the powers and rights pertaining to the Common Stock into which
such shares of Class B Preferred Stock shall be so converted. In the event of
such a conversion, the transferee of the shares of Class B Preferred Stock shall
be treated for all purposes as the record holder of the shares of Common Stock
into which such shares of Class B Preferred Stock have been automatically
converted as of the date of such transfer. Certificates representing shares of
Class B Preferred Stock shall be legended to reflect such restrictions on
transfer. Notwithstanding the foregoing provisions of this Section 1(B), shares
of Class B Preferred Stock may be converted into shares of Common Stock pursuant
to Section 5 hereof and the shares of Common Stock issued upon such conversion
may be transferred by the holder thereof as permitted by law.
Section 2. Dividends and Distributions.
--------- ---------------------------
(A) Class B Preferred Stock shall be entitled to receive such dividends and
other distributions in cash, stock or property of the Corporation as may be
declared thereon by the Board of Directors from time to time out of assets or
funds of the Corporation legally available therefor, but only to the extent
hereinafter provided and no more. If at any time a dividend or other
distribution is declared on the Common Stock (whether in cash, property or other
securities), including as a result of recapitalization or reclassification, a
dividend or distribution shall simultaneously be declared on each share of Class
B Preferred Stock in an amount per share equal to 115% of the dividend or
distribution declared on each share of Common Stock and shall be payable on the
same date as such Common Stock dividend or distribution is payable. The record
date for holders of shares of Class B Preferred Stock for any such dividend or
distribution shall be the same as the record date for holders of shares of
Common Stock for the related dividend or distribution. Notwithstanding the
foregoing, the Corporation shall not at any time after the first issuance of a
share of Class B Preferred Stock (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller number of such
shares, unless in each such case shares of Class B Preferred Stock shall become
entitled to a dividend in Class B Preferred Stock, be subdivided or be combined
in the same proportion as of the effective date of such event.
19
Section 3. Voting Rights. The holders of shares of Class B Preferred Stock
--------- -------------
shall have the following voting rights:
(A) The holders of Class B Preferred Stock shall be entitled to vote on all
matters submitted to a vote of the holders of Common Stock of the Corporation,
voting together as one class with the holders of Common Stock and any other
class or series of preferred stock so voting as one class. Each share of the
Class B Preferred Stock shall entitle the holder thereof to one vote.
(B) Except as otherwise required by law or set forth herein, holders of Class
B Preferred Stock shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with holders of
Common Stock and any other class or series of Preferred Stock as set forth
herein) for the taking of any corporate action.
Section 4. Liquidation, Dissolution or Winding-Up.
--------- --------------------------------------
(A) Upon any voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation, the holders of Class B Preferred Stock shall be entitled to
receive out of assets of the Corporation which remain after satisfaction in full
of all valid claims of creditors of the Corporation and which are available for
payment to shareholders, and subject to the rights of the holders of any stock
of the Corporation ranking senior to or on a parity with the Class B Preferred
Stock in respect of distributions upon liquidation, dissolution or winding-up of
the Corporation, before any amount shall be paid or distributed among the
holders of Common Stock or any other shares ranking junior to the Class B
Preferred Stock in respect of distributions upon liquidation, dissolution or
winding-up of the Corporation, liquidating distributions in an amount of $45 per
share (the "Liquidation Amount") of Class B Preferred Stock plus an amount equal
to all required and unpaid dividends thereon to the date fixed for distribution
and no more. In the event shares of Class B Preferred Stock are subdivided or
combined or any dividend is declared in such shares to holders thereof, then the
Liquidation Amount shall be proportionately adjusted as of the effective date of
such event. If upon any liquidation, dissolution or winding-up of the
Corporation, the amounts payable with respect to the Class B Preferred Stock and
any other stock ranking as to a distribution on such event on a parity with the
Class B Preferred Stock are not paid in full, the holders of the Class B
Preferred Stock and such other stock shall share ratably in any distribution of
assets in proportion to the full respective preferential amounts to which they
are entitled.
(B) Neither the merger, consolidation or combination of the Corporation with
or into any other corporation, nor the sale, lease, transfer or other exchange
of all or any portion of the assets of the Corporation (or any purchase or
redemption of some or all of the shares of any class or series of stock of the
Corporation), shall be deemed to be a dissolution, liquidation or winding-up of
the affairs of the Corporation for purposes of this Section 4, but the holders
of Class B Preferred Stock shall nevertheless be entitled in the event of any
such transaction to the rights provided by Section 6 hereof.
(C) Written notice of any voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, stating the payment date or dates when, and
the place or places where, the amounts distributable to holders of Class B
Preferred Stock and any other class or series of preferred stock in such
circumstances shall be payable, and stating that such payment will be made only
after the surrender (or submission for notation of any partial payment) of such
20
holder's certificates representing shares of Class B Preferred Stock, except in
the case of Class B Preferred Stock represented by uncertificated shares, shall
be given by first class mail, postage prepaid, mailed not less than twenty (20)
days prior to any payment date stated therein, to the holders of Class B
Preferred Stock, at the address shown on the books of the Corporation or any
transfer agent for the Class B Preferred Stock.
Section 5. Conversion into Common Stock.
---------- ----------------------------
(A) A holder of shares of Class B Preferred Stock shall be entitled at any
time to cause any or all of such shares to be converted into one share of Common
Stock for each share of Class B Preferred Stock.
(B) Any holder of shares of Class B Preferred Stock desiring to convert such
shares into shares of Common Stock shall surrender the certificate or
certificates representing the shares of Class B Preferred Stock being converted,
duly assigned or endorsed for transfer to the Corporation (or accompanied by
duly executed stock powers relating thereto) in case of a request for
registration in a name other than that of such holder, at the offices of the
transfer agent for the Common Stock, accompanied by written notice of
conversion. Such notice of conversion shall specify (i) the number of shares of
Class B Preferred Stock to be converted and the name or names in which such
holder wishes the certificate or certificates for Common Stock and for any
shares of Class B Preferred Stock not to be so converted to be issued (or the
name or names in which such shares are to be registered in the event that they
are to be uncertificated) and (ii) the address or addresses to which such holder
wishes delivery to be made of such new certificates to be issued upon such
conversion.
(C) A conversion of shares of Class B Preferred Stock into shares of Common
Stock made at the option of the holder thereof shall be effective immediately
before the close of business on the day of the later of (i) the surrender to the
Corporation of the certificate or certificates for the shares of Series B
Preferred Stock to be converted, duly assigned or endorsed for transfer to the
Corporation (or accompanied by duly executed stock powers relating thereto) in
case of a request for registration in a name other than that of such holder and
(ii) the giving of the notice of conversion as provided herein (the "Conversion
Date"). On and after the Conversion Date, the person or persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock.
(D) Promptly after the Conversion Date for shares of Class B Preferred Stock
to be converted, the Corporation or the transfer agent for the Common Stock
shall issue and send by hand delivery (with receipt to be acknowledged) or by
first class mail, postage prepaid, to the holder of such shares or to such
holder's designee, at the address designated by such holder, a certificate or
certificates for the number of shares of Common Stock to which such holder shall
be entitled upon conversion. In the event that there shall have been
surrendered a certificate or certificates representing shares of Class B
Preferred Stock, only part of which are to be converted, the Corporation or the
transfer agent for the Common Stock shall issue and deliver to such holder or
such holder's designee a new certificate or certificates representing the number
of shares of Class B Preferred Stock which shall not have been converted.
(E) The Corporation shall at all times reserve and keep available out of its
authorized and unissued and/or treasury Common Stock solely for issuance upon
the conversion of shares of Class B Preferred Stock as herein provided, free
from any preemptive rights, the
21
maximum number of shares of Common Stock as shall from time to time be issuable
upon the conversion of all the shares of Class B Preferred Stock then
outstanding.
(F) At the option of the Corporation, all shares of the Class B Preferred
Stock may be converted at any time into Common Stock as provided in this Section
5. Unless otherwise required by law, notice of conversion pursuant to this
paragraph will be sent to the holders of Class B Preferred Stock at the address
shown on the books of the Corporation or any transfer agent for the Class B
Preferred Stock by first class mail, postage prepaid, mailed not less than one
(1) day prior to the conversion date. Each such notice shall state: (i) the
date when such conversion shall be effective; and (ii) the place or places where
certificates for such shares are to be surrendered in exchange for certificates
for Common Stock. As of the commencement of business on the conversion date, a
holder shall be treated for all purposes as the holder of the number of shares
of Common Stock issuable upon conversion, without any of the powers, preferences
or rights of a holder of Class B Preferred Stock. Upon surrender of the
certificate for shares so converted, the Corporation shall issue a certificate
representing the shares of Common Stock into which such shares of Class B
Preferred Stock have been converted.
Section 6. Consolidation, Combination, Merger, etc.
--------- ----------------------------------------
(A) In the event that the Corporation shall consummate any consolidation,
combination, merger or substantially similar transaction, pursuant to which the
outstanding shares of Common Stock are by operation of law exchanged solely for
or changed, reclassified or converted solely into stock of any successor or
resulting corporation (including the Corporation) that constitutes "qualifying
employer securities" with respect to a holder of Class B Preferred Stock within
the meaning of Section 409(1) of the Code and Section 407(d)(5) of the Employee
Retirement Income Security Act of 1974, as amended, or any successor provisions
of law, and, if applicable, for a cash payment in lieu of fractional shares, if
any, the shares of Class B Preferred Stock of such holder shall in connection
therewith be exchanged for or converted into preferred stock of such successor
or resulting corporation, having in respect of such corporation insofar as
possible the same powers, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereon, that the Class B Preferred Stock had immediately prior to such
transaction, except that after such transaction each share of the Class B
Preferred Stock shall be convertible, otherwise on the terms and conditions
provided by Section 5 hereof, into the number and kind of qualifying employee
securities so receivable by a holder of one share of Common Stock; provided,
--------
however, that if by virtue of the structure of such transaction, a holder of
-------
Common Stock is required to make an election with respect to the nature and kind
of consideration to be received in such transaction, such holder of shares of
Class B Preferred Stock shall be entitled to make an equivalent election as to
the nature and kind of consideration it shall receive, and if such election
cannot practicably be made by the holders of the Class B Preferred Stock, then
the shares of Class B Preferred Stock shall, by virtue of such transaction and
on the same terms as apply to the holders of Common Stock, be convertible into
or exchangeable for the aggregate amount of qualifying employer securities
(payable in like kind and proportion) receivable by a holder of one share of
Common Stock if such holder of Common Stock failed to exercise any rights of
election to receive any kind or amount of qualifying employer securities
receivable upon such transaction (provided that if the kind or amount of
--------
qualifying employer securities receivable upon such transaction is not the same
for each non-electing share, then the kind and amount of qualifying employer
securities receivable upon such transaction for each non-electing share shall be
the kind and amount so receivable per share by a plurality of the non-electing
shares). The Corporation shall not consummate any such merger, consolidation or
similar transaction unless the successor or resulting corporation shall
22
have agreed to recognize and honor the rights of the holders of Class B
Preferred Stock set forth in this Section 6(A).
(B) In the event that the Corporation shall consummate any consolidation,
combination, merger or substantially similar transaction, pursuant to which the
outstanding shares of Common Stock are by operation of law exchanged for or
changed, reclassified or converted into other stock or securities or cash or any
other property, or any combination thereof, other than solely qualifying
employer securities (as referred to in Section 6(A)) and cash payments, if
applicable, in lieu of fractional shares, each outstanding share of Class B
Preferred Stock shall, without any action on the part of the Corporation or any
holder thereof, be deemed to have been converted immediately prior to the
consummation of such merger, consolidation, combination or similar transaction
into one share of Common Stock so that each share of Class B Preferred Stock
shall, by virtue of such transaction and on the same terms as apply to the
holders of Common Stock, be converted into or exchanged for the aggregate amount
of stock, securities, cash or other property (payable in like kind and
proportion) receivable by a holder of one share of Common Stock; provided,
--------
however, that if by virtue of the structure of such transaction, a holder of
-------
Common Stock is required to make an election with respect to the nature and kind
of consideration to be received in such transaction, such holder of shares of
Class B Preferred Stock shall be entitled to make an equivalent election as to
the nature and kind of consideration it shall receive, and if such election
cannot practicably be made by the holders of the Class B Preferred Stock, then
each share of Class B Preferred Stock shall, by virtue of such transaction and
on the same terms as apply to the holders of Common Stock, be converted into or
exchanged for the aggregate amount of stock, securities, cash or other property
(payable in like kind and proportion) receivable by a holder of one share of
Common Stock if such holder of Common Stock failed to exercise any rights of
election as to the kind or amount of stock, securities, cash or other property
receivable upon such transaction (provided that if the kind or amount of stock,
--------
securities, cash or other property receivable upon such transaction is not the
same for each non-electing share, then the kind and amount of stock, securities,
cash or other property receivable upon such transaction for such non-electing
share shall be the kind and amount so receivable per share by a plurality of the
non-electing shares).
Section 7. Ranking; Cancellation of Shares.
--------- -------------------------------
(A) The Class B Preferred Stock shall rank on a parity with the Common Stock
as to the payment of dividends and senior to the Common Stock as to the
distribution of assets on liquidation, dissolution and winding-up of the
Corporation, and, unless otherwise provided in the Certificate of Incorporation,
as the same may be amended, the Class B Preferred Stock shall rank junior to all
other classes or series of the Corporation's preferred stock as to payment of
dividends and on a parity with all other such classes or shares of preferred
stock as to the distribution of assets on liquidation, dissolution or winding-
up.
(B) Any shares of Class B Preferred Stock acquired by the Corporation by
reason of the conversion of such shares as provided hereby, or otherwise so
acquired, shall be cancelled as shares of Class B Preferred Stock and restored
to the status of authorized but unissued shares of preferred stock, without par
value, of the Corporation, undesignated as to classes or series, and may
thereafter be reissued as part of a new class or series of such preferred stock
as permitted by law.
23
PART III
MISCELLANEOUS
Section 1. Miscellaneous.
--------- -------------
(A) All notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of receipt thereof
or three (3) Business Days after the mailing thereof if sent by registered mail
(unless first class mail shall be specifically permitted for such notice under
the terms of this Exhibit A) with postage prepaid, addressed: (i) if to the
Corporation, to its office at 1251 Avenue of the Americas, New York, NY 10020
(Attention: Treasurer) or to the transfer agent (if any) for the Class A
Preferred Stock or Class B Preferred Stock, as the case may be or (ii) if to any
holder of the Class A Preferred Stock, the Class B Preferred Stock or the Common
Stock, as the case may be, to such holder at the address of such holder as
listed in the stock record books of the Corporation (which may include the
records of any transfer agent for the Class A Preferred Stock, the Class B
Preferred Stock or the Common Stock, as the case may be) or (iii) to such other
address as the Corporation shall have designated by notice similarly given.
(B) In the event that, at any time as a result of an adjustment made pursuant
to Section 8 or 9 of Part I, the holder of any share of the Class A Preferred
Stock upon thereafter surrendering such shares for conversion shall become
entitled to receive any shares or other securities of the Corporation other than
shares of Common Stock, the Conversion Ratio in respect of such other shares or
securities so receivable upon conversion of shares of Class A Preferred Stock
shall thereafter be adjusted, and shall be subject to further adjustment from
time to time, in a manner and on terms as nearly equivalent as practicable to
the provisions with respect to Common Stock contained in Sections 8 or 9 of Part
I, and the provisions of each of the other Sections hereof with respect to the
Common Stock shall apply on like or similar terms to any such other shares or
securities. Any determination in good faith by the Corporation as to any
adjustment of the Conversion Ratio pursuant to this Section 1(B) shall be
conclusive.
(C) The Corporation shall pay any and all issuance, stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery of shares of Class A Preferred Stock, Class B Preferred Stock or Common
Stock or other securities issued upon conversion of Class A Preferred Stock or
Class B Preferred Stock, as the case may be, pursuant hereto or certificates
representing such shares or securities. The Corporation shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issuance or delivery of shares of Class B Preferred Stock or
Common Stock or other securities in a name other than that in which the shares
of Class A Preferred Stock or Class B Preferred Stock with respect to which such
shares or other securities are issued or delivered were registered, or in
respect of any payment to any person with respect to any such shares or
securities other than a payment to the registered holder thereof, and shall not
be required to make any such issuance, delivery or payment unless and until the
person otherwise entitled to such issuance, delivery or payment has paid to the
Corporation the amount of any such tax for issuance, transfer or documentary
stamp taxes or has established, to the satisfaction of the Corporation, that
such tax has been paid or is not payable.
24
(D) In the event that a holder of shares of Class A Preferred Stock or Class
B Preferred Stock, as the case may be, shall not by written notice designate the
name in which (i) shares of Common Stock or Class B Preferred Stock in the case
of Class A Preferred Stock, (ii) shares of Common Stock in the case of Class B
Preferred Stock and (iii) any other securities in accordance with this Exhibit
A, to be issued upon conversion of such shares should be registered or to whom
payment upon redemption of shares of Class A Preferred Stock should be made or
the address to which the certificate or certificates representing such shares,
or such payment, should be sent, the Corporation shall be entitled to register
such shares, and make such payment, in the name of the holder of such Class A
Preferred Stock or Class B Preferred Stock, as the case may be, as shown on the
records of the Corporation and to send the certificate or certificates
representing such shares, or such payment, to the address of such holder shown
on the records of the Corporation.
(E) Unless otherwise provided in the Certificate of Incorporation, as the
same may be amended, all payments of (x) dividends upon the shares of any class
of stock and upon any other class of stock ranking on a parity with such first
class of stock with respect to such dividends shall be made pro rata, so that
amounts paid per share on such first class of stock and such other class of
stock shall in all cases bear to each other the same ratio that the required
dividends then payable per share on the shares of such first class of stock and
such other class of stock bear to each other and (y) distributions on voluntary
or involuntary dissolution, liquidation or winding-up or otherwise made upon the
shares of any class of stock and upon any other class of stock ranking on a
parity with such first class of stock with respect to such distributions shall
be made pro rata, so that amounts paid per share on such first class of stock
and such other class of stock shall in all cases bear to each other the same
ratio that the required distributions then payable per share on the shares of
such first class of stock and such other class of stock bear to each other.
(F) The Corporation may appoint, and from time to time discharge and change,
a transfer agent for the Class A Preferred Stock or Class B Preferred Stock, as
the case may be. Upon any such appointment or discharge of a transfer agent, the
Corporation shall send notice thereof by first class mail, postage prepaid, to
each holder of record of Class A Preferred Stock or Class B Preferred Stock, as
the case may be. So long as there is a transfer agent for a class of stock, a
holder thereof shall give any notices to the Corporation required hereunder to
the transfer agent at the address of the transfer agent last given by the
Corporation.
(G) All references to Section numbers in any Part in this Exhibit A shall
refer only to that Part unless otherwise indicated. All terms defined within a
Part of this Exhibit A shall have the same meanings when used in any other Part
hereof, unless otherwise indicated.
(H) If the Corporation and the holder so agree, any shares of Class A
Preferred Stock or Class B Preferred Stock or any shares of Common Stock into
which the shares of Class A Preferred Stock or Class B Preferred Stock shall be
converted, may be uncertificated shares, provided that the names of the holders
--------
of all uncertificated shares and the number of such shares held by each holder
shall be registered at the offices of the Corporation or the transfer agent for
such shares. In the event that any shares shall be uncertificated, all
references herein to the surrender or issuance of stock certificates shall have
no application to such uncertificated shares.
25
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
EXXON CORPORATION
Pursuant to N.J.S. 14A:7-15.1(3)
Effective Date: March 14, 1997
Exxon Corporation, a New Jersey corporation, to amend its Restated
Certificate of Incorporation to effect a share division, hereby certifies:
1. The name of the corporation is Exxon Corporation.
2. The date of adoption by the Board of Directors of the corporation of
the resolutions approving the share division was February 26, 1997.
3. This amendment to the Restated Certificate of Incorporation will not
adversely affect the rights or preferences of the holders of outstanding shares
of any class or series of the corporation and will not result in the percentage
of authorized shares that remains unissued after the share division exceeding
the percentage of authorized shares that was unissued before the share division.
4. The class of shares of the corporation subject to the division is the
common stock without par value. The number of shares of common stock of the
corporation subject to the division is 1,491,818,048. All the issued shares of
common stock without par value shall be divided into two shares of common stock
without par value.
5. To effect an amendment of the corporation's Restated Certificate of
Incorporation to increase the number of authorized shares of the corporation's
common stock without par value from two billion (2,000,000,000) to three billion
(3,000,000,000), the first sentence of Article Fourth of the corporation's
Restated Certificate of Incorporation is hereby to read, in its entirety, as
follows:
"The aggregate number of shares which the corporation shall have
authority to issue is three billion two hundred million (3,200,000,000)
shares, divided into two hundred million (200,000,000) shares of
preferred stock without par value and three billion (3,000,000,000)
shares of common stock without par value."
6. This amendment and the share division shall become effective at 5:00
p.m. New Jersey time on March 14, 1997.
IN WITNESS WHEREOF, Exxon Corporation has caused this certificate to be
executed on its behalf by its duly authorized officer as of the 26th day of
February, 1997.
EXXON CORPORATION
By: /s/ Lee R. Raymond
----------------------------
L.R. Raymond, Chairman