FORD MOTOR COMPANY
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RESTATED
CERTIFICATE OF INCORPORATION
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April 9, 1998
TABLE OF CONTENTS
Article Page
FIRST Name of Corporation....................................... 1
SECOND Registered Office and Registered Agent.................... 1
THIRD Purposes.................................................. 1
FOURTH Capital Stock............................................. 3
1. Voting Powers and Rights............................. 3
1.1. Generally........................................ 3
1.2. Common Stock..................................... 3
1.3. Class B Stock.................................... 3
1.3a. 40% of Total Voting Power..................... 3
1.3b. 30% of Total Voting Power..................... 3
1.3c. One Vote per Share Voting Power............... 3
1.3d. Computations.................................. 4
1.4. No Cumulative Voting............................. 4
1.5. Quorum.......................................... 4
1.6. Manner of Voting................................ 4
1.7. Class Vote by Class B Stock..................... 4
1.8. Preferred Stock................................. 5
2. Ownership and Conversion of Class B Stock........... 5
2.1. Ownership of Class B Stock...................... 5
2.2. Transfers of Class B Stock on Corporate Books... 5
2.3. Conversion of Class B Stock for the Purpose of
Sale or Other Disposition....................... 7
2.4. Ultimate Convertibility of Class B Stock for
Any Purpose..................................... 8
2.5. Legend on Certificates for Class B Stock........ 8
2.6. Violations of Subsections 2.1 and 2.2........... 8
2.7. Definitions; Verification of Affidavits......... 8
3. General Provisions With Respect to Conversions...... 9
3.1. Manner of Effecting Conversions................. 9
3.2. Dividends....................................... 9
3.3. Prohibition against Reissue..................... 9
3.4. Reservation of Common Stock..................... 9
3.5. Investigation of Facts.......................... 9
4. Subscription Rights................................. 10
4.1. Special Right of Subscription -- Class B Stock.. 10
4.2. Other Subscription Rights Denied................ 10
4.3. Discretionary Offering of Common Stock.......... 10
5. Rights to Dividends................................. 10
6. Adjustments......................................... 10
6.1. Increase in Outstanding Stock................... 10
6.2. Consolidation or Combination of Shares.......... 11
7. All Shares Otherwise Equal.......................... 11
8. Preferred Stock..................................... 11
8.1. Preferred Stock................................. 11
8.2. Full Voting Preferred Stock..................... 13
9. Miscellaneous Provisions............................ 13
9.1. Original Stock Ledger Conclusive................ 13
9.2. Treasury Stock Not Outstanding.................. 13
9.3. Singular and Plural............................. 13
9.4. References...................................... 13
9.5. Captions or Headings............................ 13
10. Series B Cumulative Preferred Stock................ 13
FIFTH Original Capital......................................... 18
SIXTH Duration................................................. 18
SEVENTH Property of Stockholders Not Subject to Corporate Debts.. 18
EIGHTH Management of Business................................... 18
1. Powers of the Board of Directors.................... 18
1.1. General......................................... 18
1.2. Powers Conferred by By-Laws..................... 19
2. Meeting, Officers and Books......................... 19
3. Validity of Contract................................ 19
4. Ratification........................................ 19
5. Limitation on Liability of Directors; Indemnification
and Insurance....................................... 20
5.1. Limitation on Liability of Directors............ 20
5.2. Effect of Any Repeal or Modification of
Subsection 5.1.................................. 20
5.3. Indemnification and Insurance................... 20
5.3a. Right to Indemnification..................... 20
5.3b. Right of Claimant to Bring Suit.............. 21
5.3c. Miscellaneous................................ 21
5.3d. Non-Exclusivity of Rights.................... 21
5.3e. Insurance.................................... 21
5.3f. Indemnification of Agents of the Corporation. 21
6. Limitation of Actions............................... 21
NINTH Amendments............................................... 22
CERTIFICATION
The undersigned officer of Ford Motor Company, a Delaware corporation,
does hereby certify that the following is a true and correct copy of the
Restated Certificate of Incorporation of the Company in effect on the date
hereof.
Witness my hand and the seal of the Company this ________ day of
_______________, _________.
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Secretary
RESTATED
CERTIFICATE OF INCORPORATION
OF
FORD MOTOR COMPANY
(originally incorporated on July 9, 1919 under the name Eastern Holding Company)
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FIRST. The name of the corporation is Ford Motor Company.
SECOND. Its registered office in the State of Delaware is located at 1209 Orange
Street in the City of Wilmington, County of New Castle. The name and address of
its registered agent is THE CORPORATION TRUST COMPANY, 1209 Orange Street,
Wilmington, Delaware 19801.
THIRD. The nature of the business of the corporation, and the objects or
purposes proposed to be transacted, promoted or carried on by it, are:
1. To manufacture, buy, sell, deal in and with automobiles, trucks,
cars, tractors, farm machinery and implements, aircraft, landcraft and
watercraft, and vehicles and articles of every type and description, and
parts, accessories and equipment therefor and for use in connection
therewith, and generally to conduct a manufacturing business in all its
branches;
2. To manufacture, buy, sell, deal in, and to engage in, conduct and
carry on the business of manufacturing, buying, selling and dealing in
goods, commodities, wares, merchandise, services and real and personal
property of every type and description;
3. To engage in and carry on the business of mining, drilling for,
preparing for market, buying, selling, exchanging, producing and otherwise
dealing in coal, oil, gas, minerals, ores and metals, and in the products
and by-products thereof, of every type and description; to buy, sell,
exchange, lease, acquire and deal in lands, mines, coal, oil, gas and
mineral rights and claims, and to conduct all business appertaining thereto;
4. To buy, sell, exchange, lease, acquire, deal in and with, and operate
boats, vessels, railroads and means of transportation of every type and
description and to conduct all business appertaining thereto;
5. To render management, supervisory, accounting, styling, technical and
other services and advice for any person, firm, association or corporation,
domestic or foreign, by contract or otherwise, and to receive therefor fixed
or contingent compensation, or compensation in the form of commissions,
management fees, shares in gross or net receipts or profits, or in any other
manner, or upon any other terms whatsoever, or so to act without direct
compensation;
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6. To sow, cultivate and harvest agricultural products and products of
the soil; to breed, feed, raise, slaughter, store, pack, sell and deal in
and with livestock and products therefrom; to operate greenhouses, hotbeds
and cold frames for the raising of plants, shrubs and flowers; in general to
conduct in all their several departments and branches the businesses of
agriculturists, farmers, fruit growers, dairymen, stock raisers,
slaughterers, packers, gardeners, nurserymen and florists;
7. To improve, manage, develop, sell, assign, transfer, lease, mortgage,
pledge, or otherwise dispose of or turn to account or deal with all or any
part of the property of the corporation and from time to time to vary any
investment or employment of capital of the corporation;
8. To borrow money, and to make and issue notes, bonds, debentures,
obligations and evidences of indebtedness of every type and description,
whether secured by mortgage, pledge or otherwise, without limit as to
amount, and to secure the same by mortgage, pledge or otherwise; and
generally to make and perform agreements and contracts of every type and
description;
9. To the same extent as natural persons might or could do, to purchase
or otherwise acquire, and to hold, own, maintain, work, develop, sell,
lease, exchange, hire, convey, mortgage or otherwise dispose of and deal in,
lands and leaseholds, and interests, estates and rights of every type and
description in real, personal or mixed property, and franchises, rights,
licenses or privileges necessary, convenient or appropriate for any of the
purposes herein expressed;
10. To apply for, obtain, register, purchase, lease or otherwise acquire
and to hold, own, use, develop, operate and introduce, and to sell, assign,
grant licenses or territorial rights in respect to, or otherwise to turn to
account or dispose of, copyrights, trademarks, trade names, brands, labels,
and registrations of the foregoing whether issued by the United States or
any other country or government, patent rights, letters patent of the United
States or of any other country or government, and inventions, improvements
and processes, whether used in connection with or secured under letters
patent or otherwise;
11. To make donations for the public welfare or for charitable,
scientific or educational purposes; and to cooperate with other corporations
or with natural persons, or to act alone, in the creation and maintenance of
community funds or of charitable, scientific, or educational
instrumentalities;
12. To acquire by purchase, subscription or otherwise, and to hold for
investment or otherwise and to use, sell, assign, underwrite, transfer,
mortgage, pledge or otherwise deal with or dispose of stocks, bonds or any
other obligations or securities of any person, firm, association or
corporation, public, private or municipal, or of the Government of the
United States or of any state, territory, colony or dependency thereof, or
of any foreign state or country; to merge or consolidate with any
corporation in such manner as may be permitted by law; to acquire, and to
pay for in cash, stocks or bonds of this corporation, or otherwise, the good
will, rights, assets and property, and to undertake or assume the whole or
any part of the obligations or liabilities, of any person, firm, association
or corporation; to aid in any manner any corporation whose stocks, bonds or
other obligations are held or in any manner guaranteed by this corporation,
or in which this corporation is in any way interested; and to do any other
act or thing for the preservation, protection, improvement or enhancement of
the value of any such stocks, bonds or other obligations; and while the
owner of such stocks, bonds or other obligations to exercise all the rights,
powers and privileges of ownership thereof, and to exercise any and all
voting powers thereon; to guarantee the payment of dividends upon any stock,
or of the principal or interest, or both, of any bond or other obligation,
and the performance of any contract; and
13. To do everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object or the
furtherance of any power hereinbefore set forth, either alone or in
association with other corporations, firms or individuals, and to do every
other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers, or any
part or parts thereof, provided the same be not inconsistent with the laws
under which the corporation is organized.
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The business of the corporation is from time to time to do any one or more
of the acts and things hereinabove set forth, and it shall have power to conduct
and carry on its business, or any part thereof, and to have one or more offices,
and to exercise any or all of its corporate powers and rights in the State of
Delaware, and in the various other states, territories, colonies and
dependencies of the United States, in the District of Columbia, and in any or
all foreign countries.
The objects and purposes of the corporation amended herein shall be
construed as powers as well as objects and purposes and their enumeration herein
shall not be deemed to exclude, by inference or otherwise, any power, object or
purpose which the corporation is empowered to exercise, whether expressly or
impliedly, under the law of the State of Delaware now or hereafter in effect.
FOURTH. The total number of shares of all classes of stock which the corporation
shall have authority to issue is 3,295,058,688 shares, consisting of 30,000,000
shares of Preferred Stock of the par value of One Dollar ($1.00) each,
265,058,688 shares of Class B Stock of the par value of One Dollar ($1.00) each
and 3,000,000,000 shares of Common Stock of the par value of One Dollar ($1.00)
each.
The following is a statement of all of the designations and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, of the three classes of the stock of the corporation:
SECTION 1.
VOTING POWERS AND RIGHTS.
1.1. Generally. All rights to vote and all voting power (including, without
limitation thereto, the right to elect directors) shall be vested exclusively,
in accordance with the provisions of subsections 1.1 through 1.7, inclusive, in
the holders of Class B Stock and the holders of Common Stock, voting together
without regard to class, all except as otherwise expressly provided by
subsection 1.7 or by the Board of Directors pursuant to subsection 8.1 or as
otherwise expressly required by the law of the State of Delaware.
1.2. Common Stock. At every meeting of the stockholders each holder of
Common Stock shall be entitled to one vote for each share of such stock held by
him.
1.3. Class B Stock. At every meeting of the stockholders each holder of
Class B Stock shall be entitled, for each share of such stock held by him, to
such number of votes (which may be or include a fraction of a vote) as shall be
determined in accordance with the provisions of this subsection 1.3, which
number of votes, so determined from time to time, is hereinafter referred to as
the "Class B voting power per share."
1.3a. 40% of Total Voting Power. Until the total number of outstanding
shares of Class B Stock shall first fall below 60,749,880, the Class B
voting power per share shall be the quotient derived by dividing the total
number of outstanding shares of Class B Stock into a number equal to
two-thirds of the aggregate number of votes which could be cast by the
holders of all of the outstanding shares of (i) Common Stock and (ii) Full
Voting Preferred Stock (as defined in subsection 8.2), if any, if they were
present at the meeting.
1.3b. 30% of Total Voting Power. From and after the time when the total
number of outstanding shares of Class B Stock shall first fall below
60,749,880 and until such number shall first fall below 33,749,932, the
Class B voting power per share shall be the quotient derived by dividing the
total number of outstanding shares of Class B Stock into a number equal to
three-sevenths of the aggregate number of votes which could be cast by the
holders of all of the outstanding shares of (i) Common Stock and (ii) Full
Voting Preferred Stock, if any, if they were present at the meeting.
1.3c. One Vote per Share Voting Power. From and after the time when the
total number of outstanding shares of Class B Stock shall first fall below
33,749,932, the Class B voting power per share shall be one vote per share.
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1.3d. Computations. The quotients referred to in this subsection 1.3
shall be computed to the nearest one-thousandth of a vote (or, if there be
no nearest one-thousandth, shall be computed to a ten-thousandth of a vote).
1.4. No Cumulative Voting. No stockholder shall be entitled to exercise any
right of cumulative voting. If, however, any stockholder should at any time
become entitled to exercise a right of cumulative voting, whether by express
requirement of the law of the State of Delaware or otherwise, then at all
elections of directors each holder of Class B Stock shall be entitled to cast
for each share of Class B Stock held by him a number of votes equal to the Class
B voting power per share then exercisable (computed as provided in subsection
1.3), each holder of Common Stock shall be entitled to cast one vote for each
share of Common Stock held by him, and each holder of Full Voting Preferred
Stock, if any, of any series shall be entitled to cast the number of votes
(which may be one vote or more or less than one vote) for each share of Full
Voting Preferred Stock held by him which the Board of Directors shall have
determined pursuant to subsection 8.1 in establishing voting rights with respect
to such series, in each case multiplied by the number of directors to be
elected, and each such holder shall be entitled to cast all of his votes for a
single director or to distribute them among the number of directors to be voted
for, or to cast his votes for any two or more of them as he may see fit.
1.5. Quorum. At any meeting of stockholders, the presence in person or by
proxy of the holders of shares entitled to cast a majority of all of the votes
(computed, in the case of each share of Class B Stock, as provided in subsection
1.3) which could be cast at such meeting by the holders of all of the
outstanding shares of stock of the corporation entitled to vote on every matter
that is to be voted on without regard to class at such meeting shall constitute
a quorum.
1.6. Manner of Voting. At every meeting of stockholders, the holders of
Class B Stock, the holders of Common Stock and the holders of Full Voting
Preferred Stock, if any, shall vote together, without regard to class, and their
votes (computed, in the case of each share of Class B Stock, as provided in
subsection 1.3) shall be counted and totalled together; and at any meeting duly
called and held at which a quorum (determined in accordance with the provisions
of subsection 1.5) is present, a majority of the votes (computed, in the case of
each share of Class B Stock, as provided in subsection 1.3) which could be cast
at such meeting upon a given question by such holders who are present in person
or by proxy shall be necessary, in addition to any vote or other action that may
be expressly required by the provisions of this Certificate of Incorporation or
by the law of the State of Delaware, to decide such question, and shall decide
such question if no such additional vote or other action is so required.
1.7. Class Vote by Class B Stock. Notwithstanding any of the other
provisions of this Section 1, the corporation shall not, until the total number
of outstanding shares of Class B Stock shall first fall below 33,749,932, take
any of the following actions except with the affirmative vote of the holders of
a majority of the outstanding shares of Class B Stock, given separately as a
class, which vote shall be in addition to any vote or other action required by
the law of the State of Delaware:
(i) issue any additional shares of Class B Stock except pursuant to an
offer for subscription or purchase required by the provisions of subsection
4.3 or for the purpose of payment of a stock dividend; or
(ii) effect any reduction, by amendment of the Certificate of
Incorporation, retirement or exchange or otherwise, in the number of
outstanding shares of Class B Stock in any manner other than by conversion
into Common Stock as expressly provided in Section 2 or through voluntary
disposition thereof to the corporation by a holder of shares of Class B
Stock; or
(iii) effect any change or alteration in any provision of this Article
FOURTH, except as required by the provisions of subsection 3.3; or
(iv) merge or consolidate with or into any other corporation, or permit
any other corporation to merge or consolidate with or into it; or
(v) sell, lease or exchange all or substantially all of its property and
assets; or
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(vi) transfer any assets to another corporation and in connection
therewith distribute stock or other securities of such other corporation to
the holders of stock or other securities of this corporation; or
(vii) voluntarily dissolve or liquidate.
1.8. Preferred Stock. Each holder of Preferred Stock shall be entitled to
vote to the extent, if any, provided by the Board of Directors pursuant to
subsection 8.1.
SECTION 2.
OWNERSHIP AND CONVERSION OF CLASS B STOCK.
2.1. Ownership of Class B Stock. Until the time when the total number of
outstanding shares of Class B Stock shall first fall below 33,749,932, holders
of shares of such stock may (i) sell or otherwise dispose of or transfer any or
all of the shares of such stock held by them, respectively, only to persons who
at the time of transfer meet the qualifications set forth in clause (i), (ii),
(iii), (iv), (v), (vi) or (vii) of subsection 2.2, and to no other persons, or
(ii) convert any or all of such shares into shares of Common Stock for the
purpose of effecting the sale or disposition of such shares of Common Stock to
any person as provided in subsection 2.3. Until such time, no one other than
those persons in whose names shares of Class B Stock become registered on the
original stock ledger of the corporation by reason of their record ownership of
shares of Class A Common Stock or Class B Common Stock of the corporation which
are reclassified into shares of Class B Stock, or transferees or successive
transferees who at the time of transfer meet such qualifications set forth in
subsection 2.2, shall by virtue of the acquisition of a certificate for shares
of Class B Stock have the status of an owner or holder of shares of Class B
Stock or be recognized as such by the corporation or be otherwise entitled to
enjoy for his own benefit the special rights and powers of a holder of shares of
Class B Stock.
From and after the time when the total number of outstanding shares of Class
B Stock shall first fall below 33,749,932, holders of shares of such stock may
(i) sell or otherwise dispose of or transfer such shares to any person or (ii)
convert such shares into shares of Common Stock for any purpose as provided in
subsection 2.4, and any person may have the status of an owner or holder of
shares of Class B Stock.
Holders of shares of Class B Stock may at any and all times transfer to any
person the shares of Common Stock issuable upon conversion of such shares of
Class B Stock.
2.2. Transfers of Class B Stock on Corporate Books. Shares of Class B Stock
shall be transferred on the books of the corporation and a new certificate
therefor issued, upon presentation at the office of the Secretary of the
corporation (or at such additional place or places as may from time to time be
designated by the Secretary or any Assistant Secretary of the corporation) of
the certificate for such shares, in proper form for transfer and accompanied by
all requisite stock transfer tax stamps, only if such certificate when so
presented shall also be accompanied by an affidavit of the record holder of such
shares stating that such certificate is being presented to effect a transfer of
such shares to any one or more of the following:
(i) a natural person who meets the qualification that he is either (A) a
natural person in whose name shares of Class B Stock became registered on
the original stock ledger of the corporation by reason of his record
ownership of shares of Class A Common Stock or Class B Common Stock of the
corporation which were reclassified into shares of Class B Stock, or (B) a
descendant (including any descendant by adoption and any descendant of an
adopted descendant) of a natural person in whose name shares of Class B
Stock were so registered by reason of such record ownership, or (C) a spouse
or surviving spouse of a natural person who is or was while living included
within the provisions of either of the foregoing subclauses (A) or (B); or
(ii) any two or more natural persons each of whom meets the
qualification set forth in clause (i) next above; or
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(iii) a transferee as trustee of a trust, created by deed or will, which
trust meets the following requirements: (1) the income thereof from the date
of transfer to such trustee shall be required to be paid to or applied for
the use and benefit of or accumulated for one or more natural persons,
concurrently or successively, all of whom meet or will meet the
qualification set forth in clause (i) above, and no other persons, except
for such portion of the income as is payable to or to be applied for the use
and benefit of or accumulated for one or more (A) other natural persons
during terms not to exceed their respective lives, who, though they do not
meet the qualification set forth in clause (i) above, are relatives of or
are or were employees or dependents of natural persons meeting such
qualification, or (B) exempt organizations (as defined in subsection 2.7)
for terms not exceeding 33 years from the date of the commencement of the
trust, and except for such accumulated income as may be required to be paid
over to others upon the death of the person for whom it was accumulated, and
(2) the principal thereof shall be required to be transferred, assigned and
paid over upon failure or termination of the interests in the income thereof
referred to in subclause (1) above; provided, however, that if the
provisions of such trust relating to the disposition of income or principal
are subject to amendment in such manner that the trust could be changed to a
trust not meeting the requirements of this clause (iii), the trustee
thereof, as such, shall have entered into a written agreement with the
corporation providing that if such trust shall be amended at any time prior
to the time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932 such trustee will promptly deliver to the
corporation a copy, duly certified by such trustee, of the instrument
effecting such amendment and will, unless such trust as so amended then
meets the requirements of this clause (iii), promptly surrender the
certificates for the shares of Class B Stock then held in such trust for
conversion of such shares into an equal number of shares of Common Stock in
the manner set forth in subsection 3.1; or
(iv) a stock corporation (hereinafter called a "corporate holder"), not
less than 75% of the number of outstanding shares of each class of the
capital stock (other than shares of non-voting preferred stock as defined in
subsection 2.7) of which shall, at the time at which the certificate for
shares of Class B Stock is presented for transfer, be owned beneficially and
of record by natural persons who meet the qualification set forth in clause
(i) above (provided that the same natural person need not be both the
beneficial and the record owner), or be owned of record by trustees (or
successor trustees) of trusts which meet the requirements set forth in
clause (iii) above, or be so owned in part by such natural persons and so
owned in part by such trustees (or successor trustees); which corporate
holder shall have entered into a written agreement with this corporation
providing that if, at any time prior to the time when the total number of
outstanding shares of Class B Stock shall first fall below 33,749,932, less
than 75% of the number of outstanding shares of each class of the capital
stock (other than shares of non-voting preferred stock as defined in
subsection 2.7) of such corporate holder shall be so owned, then such
corporate holder will either promptly (A) transfer the shares of Class B
Stock then held by it to one or more persons who at the time of transfer
meet the qualifications set forth in clause (i), (ii), (iii), (iv), (v),
(vi) or (vii) of subsection 2.2 and cause the certificates therefor to be
duly presented for transfer into the name of such person or persons, or (B)
surrender the certificates for such shares of Class B Stock for conversion
of such shares into an equal number of shares of Common Stock, in the manner
set forth in subsection 3.1, or (C) transfer some of such shares as provided
in the foregoing subclause (A) and surrender the certificates for the
remainder of such shares for conversion as provided in the foregoing
subclause (B); or
(v) a legatee under the will of any stockholder of the corporation
deceased prior to the effective date of the reclassification of the Class A
Common Stock and the Class B Common Stock of the corporation into Class A
Stock, Class B Stock and Common Stock, such transfer being made for the
purpose of satisfying, in any manner permitted by such will, all or any part
of the claim of the said legatee in respect to a legacy of any kind under
said will; provided, however, that the aggregate number of shares of Class B
Stock transferred pursuant to this clause (v) shall not exceed 8,437,480; or
(vi) a transferee as successor trustee or as co-trustee of a trust of
which his immediate transferor was or is a trustee registered as a record
holder of such shares of Class B Stock as permitted by the provisions of
subsection 2.1; provided, however, that if the proviso in clause (iii) above
is applicable such successor trustee or co-trustee shall have entered into a
written agreement with the corporation whereby he assumes the obligations of
the agreement required by said clause (iii); or
(vii) the corporation for the purpose of retirement pursuant to the
provisions of subsection 3.3;
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and if the certificate for such shares of Class B Stock when presented for
transfer shall also be accompanied
(a) in the case of a transfer to a transferee as trustee of a trust
which meets the requirements set forth in clause (iii) above, by copies,
duly certified by such trustee, of the instrument creating such trust and of
all amendments thereto, and by an original counterpart or certified copy of
any agreement required by said clause (iii), or
(b) in the case of a transfer to a corporate holder as defined in clause
(iv) above, by a copy, duly certified by the Secretary or an Assistant
Secretary of such corporate holder, of the list of its stockholders and
their respective holdings as shown on its stock books at the time at which
the certificate for shares of Class B Stock is presented for transfer, and
by an original counterpart or certified copy of the agreement referred to in
said clause (iv), or
(c) in the case of a transfer to a legatee described in clause (v)
above, by a copy of the will of the deceased stockholder, duly certified by
the clerk of the court in which the same shall have been probated, or
(d) in the case of a transfer to a transferee as successor trustee or
co-trustee as permitted by clause (vi) above, by an original counterpart or
certified copy of any agreement of such transferee required by said clause
(vi).
From and after the time when the total number of outstanding shares of Class
B Stock shall first fall below 33,749,932, shares of Class B Stock shall be
transferable to any person without regard to the foregoing provisions of this
subsection 2.2.
2.3. Conversion of Class B Stock for the Purpose of Sale or Other
Disposition. A record holder of shares of Class B Stock shall be entitled at any
time and from time to time to convert any or all of such shares held by him into
the same number of shares of Common Stock in the manner set forth in subsection
3.1, for the purpose of effecting the sale or other disposition of such shares
of Common Stock, by surrendering certificates representing the shares of Class B
Stock to be converted, in proper form for transfer of the shares of Common Stock
issuable upon such conversion and accompanied by all stock transfer tax stamps
requisite for such transfer, and also accompanied by a written notice by such
record holder to the corporation stating that such record holder desires to
convert such shares of Class B Stock into the same number of shares of Common
Stock for the purpose of the sale or other disposition of such shares of Common
Stock and requesting that the corporation issue all of such shares of Common
Stock to persons (other than such record holder) named therein, setting forth
the number of shares of Common Stock to be issued to each such person and the
denominations in which the certificates therefor are to be issued. Each such
notice shall be signed by the record holder (or in an appropriate case by his
guardian, committee, executor, administrator or other legal representative).
If a record holder of shares of Class B Stock shall deliver a certificate
for such shares, endorsed by him for transfer or accompanied by an instrument of
transfer signed by him, to a person who does not meet the qualifications set
forth in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of subsection 2.2,
then such person or any successive transferee of such certificate may treat such
endorsement or instrument as authorizing him on behalf of such record holder to
convert such shares in the manner above provided for the purpose of the transfer
to himself of the shares of Common Stock issuable upon such conversion, and to
give on behalf of such record holder the written notice of conversion above
required, and may convert such shares of Class B Stock accordingly.
If such shares of Class B Stock shall improperly have been registered in the
name of such a person (or in the name of any successive transferee of such
certificate) and a new certificate therefor issued, such person or transferee
may surrender such new certificate for cancellation, accompanied by the written
notice of conversion above required, in which case (A) such person or transferee
shall be deemed to have elected to treat the endorsement on (or instrument of
transfer accompanying) the certificate so delivered by such former record holder
as authorizing such person or transferee on behalf of such former record holder
so to convert such shares and so to give such notice, (B) the shares of Class B
Stock registered in the name of such former record holder shall be deemed to
have been surrendered for conversion for the purpose of the transfer to such
person or transferee of the shares of Common Stock issuable upon conversion, and
(C) the appropriate entries shall be made on the books of the corporation to
reflect such action.
7
2.4. Ultimate Convertibility of Class B Stock for Any Purpose. From and
after the time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932, (i) each record holder of shares of such
stock may convert such shares into an equal number of shares of Common Stock,
irrespective of the purpose of such conversion, by surrendering the certificates
for such shares in the manner set forth in subsection 3.1; and (ii) no
additional shares of Class B Stock shall be issued by the corporation, and the
corporation shall promptly after such time take such appropriate action as may
be necessary to reduce the authorized amount of Class B Stock to the number of
shares then outstanding.
2.5. Legend on Certificates for Class B Stock. Every certificate for shares
of Class B Stock shall bear a legend on the face thereof reading as follows:
"The shares of Class B Stock represented by this certificate may not be
transferred to any person who does not meet the qualifications set forth in
clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of subsection 2.2 of
Article FOURTH of the Certificate of Incorporation of this corporation as
amended (Sections 1 to 9 of said Article FOURTH being set forth in full on
the reverse hereof) and no person who does not meet the qualifications
prescribed by subsection 2.1 of said Article FOURTH is entitled to own or to
be registered as the record holder of such shares of Class B Stock, until
the time referred to in said subsection 2.1, but the record holder of this
certificate may at any time convert such shares of Class B Stock into the
same number of shares of Common Stock for the purpose of effecting the sale
or other disposition of such shares of Common Stock to any person. Each
holder of this certificate, by accepting the same, accepts and agrees to all
of the foregoing."
Any certificate for shares of Class B Stock which shall be issued after the
time when the total number of outstanding shares of Class B Stock shall first
fall below 33,749,932 shall not bear such legend.
2.6. Violations of Subsections 2.1 and 2.2. In the event that the Board of
Directors of the corporation (or any committee of the Board of Directors, or any
officer of the corporation, designated for the purpose by the Board of
Directors) shall determine, upon the basis of facts not disclosed in any
affidavit or other document accompanying the certificate for shares of Class B
Stock when presented for transfer, that such shares of Class B Stock have been
registered in violation of the provisions of subsection 2.1 or 2.2, or shall
determine that a person is enjoying for his own benefit the special rights and
powers of shares of Class B Stock in violation of such provisions, then the
corporation shall take such action at law or in equity as is appropriate under
the circumstances. An unforeclosed pledge made to secure a bona fide obligation
shall not be deemed to violate such provisions.
2.7. Definitions; Verification of Affidavits. For the purposes of this
Section 2, each reference to a "person" shall be deemed to include not only a
natural person, but also a corporation, partnership, association, unincorporated
organization or legal entity of any kind; each reference to a "natural person"
(or to a "record holder" of shares, if a natural person) shall be deemed to
include in his representative capacity a guardian, committee, executor,
administrator or other legal representative of such natural person or record
holder; the term "non-voting preferred stock" as applied to stock in a corporate
holder, shall mean stock which does not entitle the holder thereto to vote for
the election of directors under any circumstances and carries no right to
dividends or interest in earnings other than the right to dividends in a fixed
amount per annum, which right may be cumulative; and the term "exempt
organization" shall mean any corporation, community chest, fund or foundation
organized and operated exclusively for religious, charitable, scientific,
literary, or educational purposes which, at the date of verification of the
affidavit in which reference thereto is made, shall have been exempted or be
exempt, wholly or partially, from taxation on income under the provisions of
Section 501(c)(3) of the Internal Revenue Code of 1986, as then in effect, or
other provision of Federal law then in effect governing the exemption from
Federal taxation on income of institutions organized and operated exclusively
for any one or more of the foregoing purposes. Each affidavit of a record holder
furnished pursuant to subsection 2.2 shall be verified as of a date not earlier
than five days prior to the date of delivery thereof, and, where such record
holder is a corporation or partnership, shall be verified by an officer of the
corporation or by a general partner of the partnership, as the case may be.
8
SECTION 3.
GENERAL PROVISIONS WITH RESPECT TO CONVERSIONS.
3.1. Manner of Effecting Conversions. Each conversion of shares of Class B
Stock into shares of Common Stock made pursuant to the provisions of Section 2
shall be effected by the surrender of the certificate representing the shares to
be converted at the office of the Secretary of the corporation (or at such
additional place or places as may from time to time be designated by the
Secretary or any Assistant Secretary of the corporation) in such form and
accompanied by such notice, affidavits, other documents and stock transfer tax
stamps, if any, as may be prescribed by and shall comply with the applicable
provisions of Section 2, and upon such surrender the record holder of such
shares (or, in the case of a conversion made for the purpose of effecting the
sale, gift or other disposition of the shares of Common Stock issuable upon such
conversion, the person named in the prescribed notice) shall be entitled to
become, and shall be registered in the original stock ledger of the corporation
as, the record holder of the number of shares of Common Stock issuable upon such
conversion, and each such share of Class B Stock shall be converted into one
share of Common Stock, as the Common Stock shall then be constituted, and
thereupon there shall be issued and delivered to such record holder or other
named person, as the case may be, promptly at such office or other designated
place, a certificate or certificates for such number of shares of Common Stock.
3.2. Dividends. Upon any conversion of shares of Class B Stock into shares
of Common Stock pursuant to the provisions of Section 2, any dividend, for which
the record date shall be subsequent to such conversion, which may have been
declared on the shares of Class B Stock so converted shall be deemed to have
been declared, and shall be payable, with respect to the shares of Common Stock
into or for which such shares of Class B Stock shall have been so converted, and
any such dividend which shall have been declared on such shares payable in
shares of Class B Stock shall be deemed to have been declared, and shall be
payable, in shares of Common Stock.
3.3. Prohibition against Reissue. The corporation shall not reissue or
resell any shares of Class B Stock which shall have been converted into shares
of Common Stock pursuant to or as permitted by the provisions of Section 2, or
any shares of Class B Stock which shall have been acquired by the corporation in
any other manner. The corporation shall, from time to time, take such
appropriate action as may be necessary to retire such shares and to reduce the
authorized amount of Class B Stock accordingly.
3.4. Reservation of Common Stock. The corporation shall at all times reserve
and keep available, out of its authorized but unissued Common Stock, such number
of shares of Common Stock as would become issuable upon the conversion of all
shares of Class B Stock then outstanding.
3.5. Investigation of Facts. In connection with any transfer or conversion
of any stock of the corporation pursuant to or as permitted by the provisions of
Section 2 of this Article FOURTH, or in connection with the making of any
determination referred to in subsection 2.6,
(i) the corporation shall be under no obligation to make any
investigation of facts unless an officer, employee or agent of the
corporation responsible for making such transfer or determination or issuing
Common Stock pursuant to such conversion has substantial reason to believe,
or unless the Board of Directors (or a committee of the Board of Directors
designated for the purpose) determines that there is substantial reason to
believe, that any affidavit or other document is incomplete or incorrect in
a material respect or that an investigation would disclose facts upon which
any determination referred to in subsection 2.6 should be made, in either of
which events the corporation shall make or cause to be made such
investigation as it may deem necessary or desirable in the circumstances and
have a reasonable time to complete such investigation, and
(ii) neither the corporation nor any director, officer, employee or
agent of the corporation shall be liable in any manner for any action taken
or omitted in good faith.
9
SECTION 4.
SUBSCRIPTION RIGHTS.
4.1. Special Right of Subscription -- Class B Stock. No shares of Class B
Stock and no obligations or shares convertible into shares of Class B Stock,
whether now or hereafter authorized and whether unissued or in the treasury,
shall be issued, for money paid, property or any other consideration, unless the
holders of Class B Stock shall first have been given a special right to
subscribe thereto, on a ratable basis, at a price not less favorable than that
at which such shares or obligations are to be offered to others.
4.2. Other Subscription Rights Denied. Except for the special subscription
rights conferred on the holders of Class B Stock by the provisions of
subsections 4.1 and 4.3, no holder of stock of the corporation of any class
shall have any pre-emptive or preferential right to subscribe to or purchase any
shares of any class of stock of the corporation, whether now or hereafter
authorized and whether unissued or in the treasury, or any obligations
convertible into shares of any class of stock of the corporation, at any time
issued or sold, or any right to subscribe to or purchase any thereof.
4.3. Discretionary Offering of Common Stock. If the Board of Directors in
its discretion should at any time offer shares of Common Stock, or any shares or
obligations convertible into shares of Common Stock, for subscription or
purchase by the holders of Common Stock, then there shall be offered to all of
the holders of Class B Stock for subscription or purchase on a ratable basis,
and at the same price per share or unit, shares of stock of that class, or
shares or obligations convertible into shares of stock of that class, as the
case may be; provided, however, that from and after the time when the total
number of outstanding shares of Class B Stock shall first have fallen below
33,749,932, there shall be offered to the holders of the outstanding shares of
such stock for subscription or purchase shares of Common Stock or shares or
obligations convertible into shares of Common Stock, as the case may be, in lieu
of additional shares of Class B Stock or shares or obligations convertible into
shares of Class B Stock, as the case may be.
SECTION 5.
RIGHTS TO DIVIDENDS.
When and as dividends are declared (other than dividends declared with
respect to Preferred Stock), whether payable in cash, in property or in shares
of stock of the corporation (other than shares of Class B Stock or Common
Stock), the holders of Class B Stock and the holders of Common Stock shall be
entitled to share equally, share for share, in such dividends. No dividends
shall be declared or paid in shares of Class B Stock or Common Stock of the
corporation, except dividends, otherwise ratable, payable in shares of Class B
Stock to holders of that class of stock, and in shares of Common Stock to
holders of that class of stock; provided, however, that from and after the time
when the total number of outstanding shares of Class B Stock shall first have
fallen below 33,749,932, any such dividend shall be declared and paid to the
holders of shares of Class B Stock in shares of Common Stock.
SECTION 6.
ADJUSTMENTS.
6.1. Increase in Outstanding Stock. If the corporation shall in any manner
increase the number of outstanding shares of Class B Stock, then each of the
share numbers set forth in the Table below and appearing in the provision of
this Article FOURTH set forth in such Table opposite such share number shall be
deemed to be increased by a number bearing the same proportion to such share
number that such increase in the number of outstanding shares of Class B Stock
bears to the number of shares of Class B Stock outstanding immediately prior to
such increase; and in each such case all of such provisions and this subsection
6.1 shall be applied so as to give effect to such share numbers as so increased.
10
If any such increase shall be effected by amendment of the Certificate of
Incorporation, then such amendment shall itself increase each of the appropriate
share numbers in accordance with the foregoing.
TABLE
Provision Share Number
--------- ------------
1.3a.................................................. 60,749,880
1.3b.................................................. 60,749,880
1.3b.................................................. 33,749,932
1.3c.................................................. 33,749,932
1.7................................................... 33,749,932
2.1................................................... 33,749,932
2.2(iii).............................................. 33,749,932
2.2(iv)............................................... 33,749,932
2.2(v)................................................ 8,437,480
2.2 (last paragraph).................................. 33,749,932
2.4................................................... 33,749,932
2.5................................................... 33,749,932
4.3................................................... 33,749,932
5..................................................... 33,749,932
6.2. Consolidation or Combination of Shares. If the corporation shall effect
the consolidation or combination of all outstanding shares of Class B Stock by
amendment of the Certificate of Incorporation, so as to reduce the number of
outstanding shares thereof, then such amendment shall also decrease each of the
share numbers set forth in the Table in subsection 6.1 and appearing in the
provision of this Article FOURTH set forth in such Table opposite such share
number, by a number bearing the same proportion to such share number that the
decrease in the number of outstanding shares of stock of such class effected by
such consolidation or combination bears to the number of shares of stock of such
class outstanding immediately prior to the effective date of such consolidation
or combination.
SECTION 7.
ALL SHARES OTHERWISE EQUAL.
Except as herein otherwise expressly provided, shares of Class B Stock and
Common Stock shall all be of equal rank and shall all entitle the holders
thereof to the same rights and privileges.
SECTION 8.
PREFERRED STOCK.
8.1. Preferred Stock. Shares of Preferred Stock may be issued from time to
time in one or more series. Subject to the limitations set forth in this Article
FOURTH and any limitations prescribed by the law of the State of Delaware, the
Board of Directors is expressly authorized, prior to issuance of any series of
Preferred Stock, to fix by resolution or resolutions providing for the issue of
any series the number of shares included in such series and the designation,
relative powers, preferences and rights, and the qualifications, limitations or
restrictions of such series. Pursuant to the foregoing general authority vested
in the Board of Directors, but (except as provided in the proviso to clause (v)
of this subsection 8.1) not in limitation of the powers conferred on the Board
of Directors thereby and by the law of the State of Delaware, the Board of
Directors is expressly authorized to determine with respect to each series of
Preferred Stock:
(i) the distinctive designation of such series and the number of shares
(which number from time to time may be decreased by the Board of Directors,
but not below the number of such shares then outstanding, or may be
increased by the Board of Directors unless otherwise provided in creating
such series) constituting such series;
11
(ii) the rate and time at which, and the preferences and conditions
under which, dividends shall be payable on shares of such series, the status
of such dividends as cumulative, or non-cumulative, the date or dates from
which dividends, if cumulative, shall accumulate, and the status of such
shares as participating or non-participating after the payment of dividends
as to which such shares are entitled to any preference;
(iii) the right, if any, of holders of shares of such series to convert
such shares into, or to exchange such shares for, shares of any other class
or classes (other than Class B) or of any other series of the same class,
the prices or rates of conversion or exchange, and adjustments thereto, and
any other terms and conditions applicable to such conversion or exchange;
(iv) the rights and preferences, if any, of the holders of shares of
such series upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the corporation, which amount
may vary depending upon whether such liquidation, dissolution, or winding up
is voluntary or involuntary, and, if voluntary, may vary at different dates,
and the status of the shares of such series as participating or
non-participating after the satisfaction of any such rights and preferences;
(v) the voting powers, if any, of the holders of shares of such series which
may, without limiting the generality of the foregoing, include (A) the
general right to one vote (or more or less than one vote) per share on every
matter (including, without limitation, the election of directors) voted on
by the stockholders without regard to class and (B) the limited right to
vote, as a series by itself or together with other series of Preferred Stock
or together with all series of Preferred Stock as a class, upon such
matters, under such circumstances and upon such conditions as the Board of
Directors may fix, including, without limitation, the right, voting as a
series by itself or together with other series of Preferred Stock or
together with all series of Preferred Stock as a class, to elect one or more
directors of the corporation in the event there shall have been a default in
the payment of dividends on any one or more series of Preferred Stock;
provided, however, that, notwithstanding the provisions of the preceding
subclause (B) or any other provisions of this subsection 8.1 to the
contrary, the holders of Preferred Stock, considered in the aggregate
(whether voting by individual series or together with other series of
Preferred Stock or together with all series of Preferred Stock as a class),
shall not have the right to a separate class vote for the election of one or
more directors of the corporation except in the event there shall have been
a default in the payment of dividends on any one or more series of Preferred
Stock and, in such event, shall not have the right to a separate class vote
for more than a total of two directors;
(vi) the times, terms and conditions, if any, upon which shares of such
series shall be subject to redemption, including the amount which the
holders of shares of such series shall be entitled to receive upon
redemption (which amount may vary under different conditions or at different
redemption dates) and the amount, terms, conditions and manner of operation
of any purchase, retirement or sinking fund to be provided for the shares of
such series;
(vii) the limitations, if any, applicable while such series is
outstanding on the payment of dividends or making of distributions on, or
the acquisition or redemption of, Common Stock or Class B Stock or any other
class of shares ranking junior, either as to dividends or upon liquidation,
to the shares of such series;
(viii) the conditions or restrictions, if any, upon the issue of any
additional shares (including additional shares of such series or any other
class) ranking on a parity with or prior to the shares of such series either
as to dividends or upon liquidation; and
(ix) any other relative powers, preferences and participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, of shares of such series;
in each case, so far as not inconsistent with the provisions of the
Certificate of Incorporation or the law of the State of Delaware. All shares
of Preferred Stock shall be identical and of equal rank except as to the
particulars that may be fixed by the Board of Directors as provided above,
and all shares of each series of Preferred Stock shall be identical and of
equal rank except as to the dates from which cumulative dividends, if any,
thereon shall be cumulative.
12
8.2. Full Voting Preferred Stock. As used in this Article FOURTH, the term
"Full Voting Preferred Stock" shall mean Preferred Stock of any one or more
series the holders of which shall be entitled to vote on every matter
(including, without limitation, the election of directors) voted on by the
stockholders without regard to class.
SECTION 9.
MISCELLANEOUS PROVISIONS.
9.1. Original Stock Ledger Conclusive. In determining the number or the
record holders of outstanding shares of any class of stock of the corporation
for the purpose of computing or determining the method of computing the vote or
determining the right to vote at any meeting of stockholders or of a class of
stockholders, the original stock ledger of the corporation as at the close of
business on the record date fixed for such meeting or, if the stock transfer
books of the corporation shall have been closed for a period immediately
preceding the date of such meeting, then as at the close of business on the date
as of which such stock transfer books were so closed, shall be conclusive for
all purposes, and in determining the number or the record holders of outstanding
shares of any class of stock of the corporation for any other purpose, the
original stock ledger of the corporation as at the close of business on the date
as of which the determination is being made, shall be conclusive for all
purposes; all notwithstanding any other provision of this Article FOURTH or any
entries made on the books of the corporation pursuant to the last paragraph of
subsection 2.3 subsequent to the close of business on such record or other date.
9.2. Treasury Stock Not Outstanding. The term "outstanding" as used in this
Article FOURTH with reference to shares of stock of the corporation shall not
include any stock held in the treasury of the corporation.
9.3. Singular and Plural. Wherever a term shall be used in the singular in
this Article FOURTH, it shall be deemed in all appropriate circumstances to
include also the plural, and wherever a term shall be so used in the plural, it
shall similarly be deemed to include also the singular.
9.4. References. Unless otherwise stated, all references contained in this
Article FOURTH to Sections, subsections, paragraphs, clauses or subclauses refer
to Sections, subsections, paragraphs, clauses or subclauses of this Article
FOURTH.
9.5. Captions or Headings. The captions or headings contained in this
Article FOURTH are for purposes of reference only and shall not limit or affect,
or have any bearing on the construction or interpretation of, any of the terms
or provisions of this Article FOURTH.
SECTION 10.
SERIES B CUMULATIVE PREFERRED STOCK.
The provisions of the corporation's Certificate of the Designations, Powers,
Preferences and Relative, Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of the Series B Cumulative Preferred Stock
are set forth below:
(1) Number of Shares and Designation. Twenty-three thousand (23,000) shares
of the preferred stock, $1.00 par value, of the corporation are hereby
constituted as a series of the preferred stock designated as Series B Cumulative
Preferred Stock (the "Series B Preferred Stock").
(2) Definitions. For purposes of the Series B Preferred Stock, the following
terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series B Preferred
Stock.
13
"Business Day" shall mean any day other than a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Class B Stock" shall mean the Class B Stock of the corporation, par
value $1.00 per share.
"Common Stock" shall mean the Common Stock of the corporation, par value
$1.00 per share.
"Dividend Payment Date" shall have the meaning specified in Section 3(a)
hereof.
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of March, June, September and December of each year and ending
on and including the day preceding the first day of the next succeeding
Dividend Period (other than the Initial Dividend Period).
"Initial Dividend Period" shall mean the period commencing on the Issue
Date and ending on (and including) February 28, 1993.
"Issue Date" shall mean the first date on which any shares of Series B
Preferred Stock are issued.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Transfer Agent" means Chemical Bank or such other agent or agents of
the corporation as may be designated by the Board of Directors of the
corporation as the transfer agent for the Series B Preferred Stock.
(3) Dividends. (a) The holders of shares of the Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends at the rate per annum of
$4,125 per share of Series B Preferred Stock. Such dividends shall be cumulative
from the Issue Date, whether or not in any Dividend Period or Periods there
shall be funds of the corporation legally available for the payment of such
dividends, and shall be payable quarterly, when, as and if declared by the Board
of Directors, on the first Business Day of March, June, September and December
of each year (each a "Dividend Payment Date"), commencing on the first Business
Day next succeeding the Initial Dividend Period, or at such additional times and
for such interim periods, if any, as determined by the Board of Directors. Each
such dividend shall be payable in arrears to the holders of record of shares of
the Series B Preferred Stock, as they appear on the stock records of the
corporation at the close of business on such record dates, not more than 60 days
preceding the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any regular Dividend Payment
Date, to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for the
Series B Preferred Stock shall be computed by dividing the annual dividend rate
by four. The amount of dividends payable for the Initial Dividend Period on the
Series B Preferred Stock, or any other period shorter or longer than a full
Dividend Period on the Series B Preferred Stock, shall be computed on the basis
of twelve 30-day months and a 360-day year. Holders of shares of Series B
Preferred Stock called for redemption on a redemption date between a dividend
payment record date and the respective Dividend Payment Date shall not be
entitled to receive the dividend payable on such Dividend Payment Date. Holders
of shares of Series B Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of cumulative dividends,
as herein provided, on the Series B Preferred Stock. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series B Preferred Stock which may be in arrears.
(c) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or series of stock of the
corporation ranking, as to dividends, on a parity with the Series B Preferred
Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series B Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full or a sum sufficient
14
for such payment is not set apart, as aforesaid, upon the shares of the Series B
Preferred Stock and any other class or series of stock ranking on a parity as to
dividends with the Series B Preferred Stock, all dividends declared upon shares
of the Series B Preferred Stock and all dividends declared upon such other stock
shall be declared pro rata so that the amounts of dividends per share declared
on the Series B Preferred Stock and such other stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of the
Series B Preferred Stock and such other stock bear to each other.
(d) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends (other than dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of Common Stock,
Class B Stock or other stock ranking junior to the Series B Preferred Stock, as
to dividends and upon liquidation) shall be declared or paid or set apart for
payment or other distribution declared or made upon the Common Stock, Class B
Stock or any other stock of the corporation ranking junior to the Series B
Preferred Stock, as to dividends or upon liquidation nor shall any Common Stock,
nor any Class B Stock nor any other such stock of the corporation ranking junior
to the Series B Preferred Stock, as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any shares
of any such stock) by the corporation (except by conversion into or exchange for
stock of the corporation ranking junior to the Series B Preferred Stock, as to
dividends and upon liquidation) unless, in each case (i) the full cumulative
dividends on all outstanding shares of the Series B Preferred Stock and any
other stock of the corporation ranking on a parity with the Series B Preferred
Stock, as to dividends or upon liquidation shall have been paid or set apart for
payment for all past Dividend Periods and dividend periods with respect to such
other stock and (ii) sufficient funds shall have been set apart for the payment
of the dividend for the current Dividend Period with respect to the Series B
Preferred Stock and the dividend period with respect to any other stock of the
corporation ranking on a parity with the Series B Preferred Stock, as to
dividends or upon liquidation.
(4) Liquidation Preference. (a) In the event of any liquidation, dissolution
or winding up of the corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the corporation (whether capital or
surplus) shall be made to or set apart for the holders of Common Stock, Class B
Stock or any other series or class or classes of stock of the corporation
ranking junior to the Series B Preferred Stock, upon liquidation, dissolution or
winding up, the holders of the shares of Series B Preferred Stock shall be
entitled to receive $50,000 per share plus an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated and unpaid thereon
to the date of final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the corporation, the assets of the corporation, or proceeds
thereof, distributable among the holders of the shares of Series B Preferred
Stock shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of stock ranking, as to liquidation,
dissolution or winding up, on a parity with the Series B Preferred Stock, then
such assets, or the proceeds thereof, shall be distributed among the holders of
shares of Series B Preferred Stock and any such other stock ratably in
accordance with the respective amounts which would be payable on such shares of
Series B Preferred Stock and any such other stock if all amounts payable thereon
were paid in full. For the purposes of this Section (4), (i) a consolidation or
merger of the corporation with one or more corporations, (ii) a sale or transfer
of all or substantially all of the corporation's assets or (iii) a statutory
share exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or class or
classes of stock ranking on a parity with or prior to Series B Preferred Stock,
upon liquidation, dissolution or winding up, upon any liquidation, dissolution
or winding up of the corporation, after payment shall have been made in full to
the holders of Series B Preferred Stock, as provided in this Section (4), any
other series or class or classes of stock ranking junior to Series B Preferred
Stock, upon liquidation, dissolution or winding up shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of Series B Preferred Stock shall not be entitled to share therein.
(5) Redemption at the Option of the Corporation. (a) Series B Preferred
Stock may not be redeemed by the corporation prior to December 1, 2002, on or
after which the corporation, at its option, may, subject to the next succeeding
paragraph, redeem the shares of Series B Preferred Stock, in whole or in part,
out of funds legally available therefor, at any time or from time to time,
subject to the notice provisions and provisions for partial redemption described
15
below, at a redemption price of $50,000 per share, plus an amount equal to
accrued and unpaid dividends, if any, to the date fixed for redemption, whether
or not earned or declared.
In addition to any other requirement for or condition to the redemption of
the Series B Preferred Stock set forth in this Section (5), the corporation
shall not redeem any shares of Series B Preferred Stock pursuant to this Section
(5)(a) unless within the two-year period ending on the date fixed for redemption
the corporation shall have issued sufficient shares of Common Stock to result in
receipt by the corporation of net proceeds from such issuances of an aggregate
amount at least equal to the aggregate liquidation preference of the shares of
Series B Preferred Stock proposed to be redeemed.
(b) In the event that full cumulative dividends on the Series B Preferred
Stock and any other class or series of stock of the corporation ranking, as to
dividends, on a parity with the Series B Preferred Stock have not been paid or
declared and set apart for payment, the Series B Preferred Stock may not be
redeemed in part and the corporation may not purchase or acquire shares of
Series B Preferred Stock or such other stock otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares of
Series B Preferred Stock and such other stock.
(c) In the event the corporation shall redeem shares of Series B Preferred
Stock, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 10 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock records of the corporation. Each such
notice shall state: (1) the redemption date; (2) the number of shares of Series
B Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price; and (5)
that dividends on the shares to be redeemed shall cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the corporation in providing
money for the payment of the redemption price), (i) dividends on the shares of
the Series B Preferred Stock so called for redemption shall cease to accrue,
(ii) said shares shall no longer be deemed to be outstanding, and (iii) all
rights of the holders thereof as stockholders of the corporation (except the
right to receive from the corporation the redemption price without interest
thereon) shall cease. The corporation's obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the redemption date, the corporation shall deposit with a bank or trust
company (which may be an affiliate of the corporation) having an office in the
Borough of Manhattan, City of New York, and having a capital and surplus of at
least $50,000,000, funds necessary for such redemption, in trust, with
irrevocable instructions that such funds be applied to the redemption of the
shares of Series B Preferred Stock so called for redemption. Any interest
accrued on such funds shall be paid to the corporation from time to time. Any
funds so deposited and unclaimed at the end of two years from such redemption
date shall be released or repaid to the corporation, after which, subject to any
applicable laws relating to escheat or unclaimed property, the holder or holders
of such shares of Series B Preferred Stock so called for redemption shall look
only to the corporation for payment of the redemption price.
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Series B Preferred Stock
are to be redeemed, shares to be redeemed shall be selected by the corporation
from outstanding shares of Series B Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the corporation in its sole discretion to be equitable. If fewer
than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(6) Shares to be Retired. All shares of Series B Preferred Stock purchased
or redeemed by the corporation shall be retired and canceled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series.
16
(ii) the rate and time at which, and the preferences and conditions
under which, dividends shall be payable on shares of such series, the status
of such dividends as cumulative, or non-cumulative, the date or dates from
which dividends, if cumulative, shall accumulate, and the status of such
shares as participating or non-participating after the payment of dividends
as to which such shares are entitled to any preference;
(iii) the right, if any, of holders of shares of such series to convert
such shares into, or to exchange such shares for, shares of any other class
or classes (other than Class B) or of any other series of the same class,
the prices or rates of conversion or exchange, and adjustments thereto, and
any other terms and conditions applicable to such conversion or exchange;
(iv) the rights and preferences, if any, of the holders of shares of
such series upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the corporation, which amount
may vary depending upon whether such liquidation, dissolution, or winding up
is voluntary or involuntary, and, if voluntary, may vary at different dates,
and the status of the shares of such series as participating or
non-participating after the satisfaction of any such rights and preferences;
(v) the voting powers, if any, of the holders of shares of such series which
may, without limiting the generality of the foregoing, include (A) the
general right to one vote (or more or less than one vote) per share on every
matter (including, without limitation, the election of directors) voted on
by the stockholders without regard to class and (B) the limited right to
vote, as a series by itself or together with other series of Preferred Stock
or together with all series of Preferred Stock as a class, upon such
matters, under such circumstances and upon such conditions as the Board of
Directors may fix, including, without limitation, the right, voting as a
series by itself or together with other series of Preferred Stock or
together with all series of Preferred Stock as a class, to elect one or more
directors of the corporation in the event there shall have been a default in
the payment of dividends on any one or more series of Preferred Stock;
provided, however, that, notwithstanding the provisions of the preceding
subclause (B) or any other provisions of this subsection 8.1 to the
contrary, the holders of Preferred Stock, considered in the aggregate
(whether voting by individual series or together with other series of
Preferred Stock or together with all series of Preferred Stock as a class),
shall not have the right to a separate class vote for the election of one or
more directors of the corporation except in the event there shall have been
a default in the payment of dividends on any one or more series of Preferred
Stock and, in such event, shall not have the right to a separate class vote
for more than a total of two directors;
(vi) the times, terms and conditions, if any, upon which shares of such
series shall be subject to redemption, including the amount which the
holders of shares of such series shall be entitled to receive upon
redemption (which amount may vary under different conditions or at different
redemption dates) and the amount, terms, conditions and manner of operation
of any purchase, retirement or sinking fund to be provided for the shares of
such series;
(vii) the limitations, if any, applicable while such series is
outstanding on the payment of dividends or making of distributions on, or
the acquisition or redemption of, Common Stock or Class B Stock or any other
class of shares ranking junior, either as to dividends or upon liquidation,
to the shares of such series;
(viii) the conditions or restrictions, if any, upon the issue of any
additional shares (including additional shares of such series or any other
class) ranking on a parity with or prior to the shares of such series either
as to dividends or upon liquidation; and
(ix) any other relative powers, preferences and participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, of shares of such series;
in each case, so far as not inconsistent with the provisions of the
Certificate of Incorporation or the law of the State of Delaware. All shares
of Preferred Stock shall be identical and of equal rank except as to the
particulars that may be fixed by the Board of Directors as provided above,
and all shares of each series of Preferred Stock shall be identical and of
equal rank except as to the dates from which cumulative dividends, if any,
thereon shall be cumulative.
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8.2. Full Voting Preferred Stock. As used in this Article FOURTH, the term
"Full Voting Preferred Stock" shall mean Preferred Stock of any one or more
series the holders of which shall be entitled to vote on every matter
(including, without limitation, the election of directors) voted on by the
stockholders without regard to class.
SECTION 9.
MISCELLANEOUS PROVISIONS.
9.1. Original Stock Ledger Conclusive. In determining the number or the
record holders of outstanding shares of any class of stock of the corporation
for the purpose of computing or determining the method of computing the vote or
determining the right to vote at any meeting of stockholders or of a class of
stockholders, the original stock ledger of the corporation as at the close of
business on the record date fixed for such meeting or, if the stock transfer
books of the corporation shall have been closed for a period immediately
preceding the date of such meeting, then as at the close of business on the date
as of which such stock transfer books were so closed, shall be conclusive for
all purposes, and in determining the number or the record holders of outstanding
shares of any class of stock of the corporation for any other purpose, the
original stock ledger of the corporation as at the close of business on the date
as of which the determination is being made, shall be conclusive for all
purposes; all notwithstanding any other provision of this Article FOURTH or any
entries made on the books of the corporation pursuant to the last paragraph of
subsection 2.3 subsequent to the close of business on such record or other date.
9.2. Treasury Stock Not Outstanding. The term "outstanding" as used in this
Article FOURTH with reference to shares of stock of the corporation shall not
include any stock held in the treasury of the corporation.
9.3. Singular and Plural. Wherever a term shall be used in the singular in
this Article FOURTH, it shall be deemed in all appropriate circumstances to
include also the plural, and wherever a term shall be so used in the plural, it
shall similarly be deemed to include also the singular.
9.4. References. Unless otherwise stated, all references contained in this
Article FOURTH to Sections, subsections, paragraphs, clauses or subclauses refer
to Sections, subsections, paragraphs, clauses or subclauses of this Article
FOURTH.
9.5. Captions or Headings. The captions or headings contained in this
Article FOURTH are for purposes of reference only and shall not limit or affect,
or have any bearing on the construction or interpretation of, any of the terms
or provisions of this Article FOURTH.
SECTION 10.
SERIES B CUMULATIVE PREFERRED STOCK.
The provisions of the corporation's Certificate of the Designations, Powers,
Preferences and Relative, Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of the Series B Cumulative Preferred Stock
are set forth below:
(1) Number of Shares and Designation. Twenty-three thousand (23,000) shares
of the preferred stock, $1.00 par value, of the corporation are hereby
constituted as a series of the preferred stock designated as Series B Cumulative
Preferred Stock (the "Series B Preferred Stock").
(2) Definitions. For purposes of the Series B Preferred Stock, the following
terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series B Preferred
Stock.
13
"Business Day" shall mean any day other than a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Class B Stock" shall mean the Class B Stock of the corporation, par
value $1.00 per share.
"Common Stock" shall mean the Common Stock of the corporation, par value
$1.00 per share.
"Dividend Payment Date" shall have the meaning specified in Section 3(a)
hereof.
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of March, June, September and December of each year and ending
on and including the day preceding the first day of the next succeeding
Dividend Period (other than the Initial Dividend Period).
"Initial Dividend Period" shall mean the period commencing on the Issue
Date and ending on (and including) February 28, 1993.
"Issue Date" shall mean the first date on which any shares of Series B
Preferred Stock are issued.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Transfer Agent" means Chemical Bank or such other agent or agents of
the corporation as may be designated by the Board of Directors of the
corporation as the transfer agent for the Series B Preferred Stock.
(3) Dividends. (a) The holders of shares of the Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends at the rate per annum of
$4,125 per share of Series B Preferred Stock. Such dividends shall be cumulative
from the Issue Date, whether or not in any Dividend Period or Periods there
shall be funds of the corporation legally available for the payment of such
dividends, and shall be payable quarterly, when, as and if declared by the Board
of Directors, on the first Business Day of March, June, September and December
of each year (each a "Dividend Payment Date"), commencing on the first Business
Day next succeeding the Initial Dividend Period, or at such additional times and
for such interim periods, if any, as determined by the Board of Directors. Each
such dividend shall be payable in arrears to the holders of record of shares of
the Series B Preferred Stock, as they appear on the stock records of the
corporation at the close of business on such record dates, not more than 60 days
preceding the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any regular Dividend Payment
Date, to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for the
Series B Preferred Stock shall be computed by dividing the annual dividend rate
by four. The amount of dividends payable for the Initial Dividend Period on the
Series B Preferred Stock, or any other period shorter or longer than a full
Dividend Period on the Series B Preferred Stock, shall be computed on the basis
of twelve 30-day months and a 360-day year. Holders of shares of Series B
Preferred Stock called for redemption on a redemption date between a dividend
payment record date and the respective Dividend Payment Date shall not be
entitled to receive the dividend payable on such Dividend Payment Date. Holders
of shares of Series B Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of cumulative dividends,
as herein provided, on the Series B Preferred Stock. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series B Preferred Stock which may be in arrears.
(c) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or series of stock of the
corporation ranking, as to dividends, on a parity with the Series B Preferred
Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series B Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full or a sum sufficient
14
for such payment is not set apart, as aforesaid, upon the shares of the Series B
Preferred Stock and any other class or series of stock ranking on a parity as to
dividends with the Series B Preferred Stock, all dividends declared upon shares
of the Series B Preferred Stock and all dividends declared upon such other stock
shall be declared pro rata so that the amounts of dividends per share declared
on the Series B Preferred Stock and such other stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of the
Series B Preferred Stock and such other stock bear to each other.
(d) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends (other than dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of Common Stock,
Class B Stock or other stock ranking junior to the Series B Preferred Stock, as
to dividends and upon liquidation) shall be declared or paid or set apart for
payment or other distribution declared or made upon the Common Stock, Class B
Stock or any other stock of the corporation ranking junior to the Series B
Preferred Stock, as to dividends or upon liquidation nor shall any Common Stock,
nor any Class B Stock nor any other such stock of the corporation ranking junior
to the Series B Preferred Stock, as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any shares
of any such stock) by the corporation (except by conversion into or exchange for
stock of the corporation ranking junior to the Series B Preferred Stock, as to
dividends and upon liquidation) unless, in each case (i) the full cumulative
dividends on all outstanding shares of the Series B Preferred Stock and any
other stock of the corporation ranking on a parity with the Series B Preferred
Stock, as to dividends or upon liquidation shall have been paid or set apart for
payment for all past Dividend Periods and dividend periods with respect to such
other stock and (ii) sufficient funds shall have been set apart for the payment
of the dividend for the current Dividend Period with respect to the Series B
Preferred Stock and the dividend period with respect to any other stock of the
corporation ranking on a parity with the Series B Preferred Stock, as to
dividends or upon liquidation.
(4) Liquidation Preference. (a) In the event of any liquidation, dissolution
or winding up of the corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the corporation (whether capital or
surplus) shall be made to or set apart for the holders of Common Stock, Class B
Stock or any other series or class or classes of stock of the corporation
ranking junior to the Series B Preferred Stock, upon liquidation, dissolution or
winding up, the holders of the shares of Series B Preferred Stock shall be
entitled to receive $50,000 per share plus an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated and unpaid thereon
to the date of final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the corporation, the assets of the corporation, or proceeds
thereof, distributable among the holders of the shares of Series B Preferred
Stock shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of stock ranking, as to liquidation,
dissolution or winding up, on a parity with the Series B Preferred Stock, then
such assets, or the proceeds thereof, shall be distributed among the holders of
shares of Series B Preferred Stock and any such other stock ratably in
accordance with the respective amounts which would be payable on such shares of
Series B Preferred Stock and any such other stock if all amounts payable thereon
were paid in full. For the purposes of this Section (4), (i) a consolidation or
merger of the corporation with one or more corporations, (ii) a sale or transfer
of all or substantially all of the corporation's assets or (iii) a statutory
share exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or class or
classes of stock ranking on a parity with or prior to Series B Preferred Stock,
upon liquidation, dissolution or winding up, upon any liquidation, dissolution
or winding up of the corporation, after payment shall have been made in full to
the holders of Series B Preferred Stock, as provided in this Section (4), any
other series or class or classes of stock ranking junior to Series B Preferred
Stock, upon liquidation, dissolution or winding up shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of Series B Preferred Stock shall not be entitled to share therein.
(5) Redemption at the Option of the Corporation. (a) Series B Preferred
Stock may not be redeemed by the corporation prior to December 1, 2002, on or
after which the corporation, at its option, may, subject to the next succeeding
paragraph, redeem the shares of Series B Preferred Stock, in whole or in part,
out of funds legally available therefor, at any time or from time to time,
subject to the notice provisions and provisions for partial redemption described
15
below, at a redemption price of $50,000 per share, plus an amount equal to
accrued and unpaid dividends, if any, to the date fixed for redemption, whether
or not earned or declared.
In addition to any other requirement for or condition to the redemption of
the Series B Preferred Stock set forth in this Section (5), the corporation
shall not redeem any shares of Series B Preferred Stock pursuant to this Section
(5)(a) unless within the two-year period ending on the date fixed for redemption
the corporation shall have issued sufficient shares of Common Stock to result in
receipt by the corporation of net proceeds from such issuances of an aggregate
amount at least equal to the aggregate liquidation preference of the shares of
Series B Preferred Stock proposed to be redeemed.
(b) In the event that full cumulative dividends on the Series B Preferred
Stock and any other class or series of stock of the corporation ranking, as to
dividends, on a parity with the Series B Preferred Stock have not been paid or
declared and set apart for payment, the Series B Preferred Stock may not be
redeemed in part and the corporation may not purchase or acquire shares of
Series B Preferred Stock or such other stock otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares of
Series B Preferred Stock and such other stock.
(c) In the event the corporation shall redeem shares of Series B Preferred
Stock, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 10 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock records of the corporation. Each such
notice shall state: (1) the redemption date; (2) the number of shares of Series
B Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price; and (5)
that dividends on the shares to be redeemed shall cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the corporation in providing
money for the payment of the redemption price), (i) dividends on the shares of
the Series B Preferred Stock so called for redemption shall cease to accrue,
(ii) said shares shall no longer be deemed to be outstanding, and (iii) all
rights of the holders thereof as stockholders of the corporation (except the
right to receive from the corporation the redemption price without interest
thereon) shall cease. The corporation's obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the redemption date, the corporation shall deposit with a bank or trust
company (which may be an affiliate of the corporation) having an office in the
Borough of Manhattan, City of New York, and having a capital and surplus of at
least $50,000,000, funds necessary for such redemption, in trust, with
irrevocable instructions that such funds be applied to the redemption of the
shares of Series B Preferred Stock so called for redemption. Any interest
accrued on such funds shall be paid to the corporation from time to time. Any
funds so deposited and unclaimed at the end of two years from such redemption
date shall be released or repaid to the corporation, after which, subject to any
applicable laws relating to escheat or unclaimed property, the holder or holders
of such shares of Series B Preferred Stock so called for redemption shall look
only to the corporation for payment of the redemption price.
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Series B Preferred Stock
are to be redeemed, shares to be redeemed shall be selected by the corporation
from outstanding shares of Series B Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the corporation in its sole discretion to be equitable. If fewer
than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(6) Shares to be Retired. All shares of Series B Preferred Stock purchased
or redeemed by the corporation shall be retired and canceled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series.
16
(7) Ranking. Any class or classes of stock of the corporation shall be
deemed to rank:
(i) prior to the Series B Preferred Stock, as to dividends or as to
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series B Preferred
Stock;
(ii) on a parity with the Series B Preferred Stock, as to dividends or
as to distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the Series B
Preferred Stock, if the holders of such class of stock and the Series B
Preferred Stock shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation prices, without preference or priority
one over the other; and
(iii) junior to the Series B Preferred Stock, as to dividends or as to
the distribution of assets upon liquidation, dissolution or winding up, if
such stock shall be Common Stock or Class B Stock or if the holders of
Series B Preferred Stock shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of shares of such
stock.
(8) Voting. Except as herein provided or as otherwise from time to time
required by law, holders of Series B Preferred Stock shall have no voting
rights. Whenever, at any time or times, dividends payable on the shares of
Series B Preferred Stock at the time outstanding shall be in arrears for such
number of Dividend Periods, which Dividend Periods need not be consecutive,
which shall in the aggregate contain not less than 540 days, the holders of
Series B Preferred Stock shall have the exclusive right, voting separately as a
class with holders of shares of any one or more other series of preferred stock
ranking on a parity with the Series B Preferred Stock as to dividends, or on the
distribution of assets upon liquidation, dissolution or winding up and upon
which like voting rights have been conferred and are exercisable, to elect two
directors of the corporation at the corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders. At elections
for such directors, each holder of Series B Preferred Stock shall be entitled to
one vote for each share held (the holders of shares of any other series of
preferred stock ranking on such a parity being entitled to such number of votes,
if any, for each share of stock held as may be granted to them). Upon the
vesting of such right of the holders of Series B Preferred Stock, the maximum
authorized number of members of the Board of Directors shall automatically be
increased by two and the two vacancies so created shall be filled by vote of the
holders of outstanding Series B Preferred Stock (either alone or together with
the holders of shares of any one or more other series of preferred stock ranking
on such a parity and having like voting rights) as hereinafter set forth. The
right of holders of Series B Preferred Stock, voting separately as a class, to
elect (either alone or together with the holders of shares of any one or more
other series of preferred stock ranking on such a parity and having like voting
rights) members of the Board of Directors as aforesaid shall continue until such
time as all dividends accumulated on Series B Preferred Stock shall have been
paid in full, at which time such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned.
If the office of any director elected by the holders of Series B Preferred
Stock, voting as a class, becomes vacant by reason of death, resignation,
retirement, disqualification or removal from office or otherwise, the remaining
director elected by the holders of Series B Preferred Stock, voting as a class,
may choose a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred. Upon any termination of the right of the holders
of Series B Preferred Stock to vote for directors as herein provided, the term
of office of all directors then in office elected by Series B Preferred Stock,
voting as a class, shall terminate immediately. Whenever the term of office of
the directors elected by the holders of Series B Preferred Stock, voting as a
class, shall so terminate and the special voting powers vested in the holders of
Series B Preferred Stock shall have expired, the number of directors shall be
such number as may be provided for in the By-Laws irrespective of any increase
made pursuant to the provisions of this Section (8).
So long as any shares of the Series B Preferred Stock remain outstanding,
the consent of the holders of at least two-thirds of the shares of Series B
Preferred Stock outstanding at the time given in person or by proxy, either in
17
writing or at any special or annual meeting, shall be necessary to permit,
effect or validate any one or more of the following:
(a) The authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior to
Series B Preferred Stock as to dividends or the distribution of assets upon
liquidation, dissolution or winding up, or
(b) The amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Certificate of Incorporation of the
corporation, as amended, which would materially and adversely affect any right,
preference or voting power of Series B Preferred Stock or of the holders
thereof; provided, however, that any increase in the amount of authorized
preferred stock or the creation and issuance of other series of preferred stock,
or any increase in the amount of authorized shares of such series or of any
other series of preferred stock, in each case ranking on a parity with or junior
to the Series B Preferred Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences or voting
powers.
The foregoing voting provisions shall not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of Series B Preferred Stock shall have been
redeemed or sufficient funds shall have been deposited in trust to effect such
redemption, scheduled to be consummated within three months after such time.
(9) Record Holders. The corporation and the Transfer Agent may deem and
treat the record holder of any shares of Series B Preferred Stock as the true
and lawful owner thereof for all purposes, and neither the corporation nor the
Transfer Agent shall be affected by any notice to the contrary.
FIFTH. The amount of capital with which the corporation will commence business
is One Thousand Dollars ($1,000).
SIXTH. The 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 whatever.
EIGHTH. The following provisions are inserted for the management of the business
and for the conduct of the affairs of the corporation:
SECTION 1.
POWERS OF THE BOARD OF DIRECTORS.
1.1. General. In furtherance, and not in limitation, of the powers conferred
by statute, the Board of Directors is expressly authorized:
(1) To make, alter or repeal the By-Laws of the corporation; to set
apart out of any funds of the corporation available for dividends a reserve
or reserves for any proper purpose and to abolish the same in the manner in
which it was created, and to fix and determine and to vary the amount of the
working capital of the corporation; to determine the use and disposition of
the working capital and of any surplus or net profits over and above the
capital of the corporation determined as provided by law, and to fix the
times for the declaration and payment of dividends; to authorize and cause
to be executed mortgages and liens, without limit as to amount, upon the
real and personal property of the corporation; and to fix and determine the
fees and other compensation to be paid by the corporation to its directors;
(2) To determine from time to time whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the corporation (other than the stock ledger), or any
18
of them, shall be open to inspection of the stockholders; and no stockholder
shall have any right to inspect any account, book or document of the
corporation except as conferred by statute, unless authorized by a
resolution of the stockholders or directors;
(3) To make donations for the public welfare or for charitable,
scientific or educational purposes; and to cause the corporation to
cooperate with other corporations or with natural persons, or to act alone,
in the creation and maintenance of community funds or charitable,
scientific, or educational instrumentalities, and to make donations for the
public welfare or for charitable, scientific, or educational purposes; and
(4) To designate, by resolution passed by a majority of the entire Board,
one or more committees, each committee to consist of two or more of the
directors of the corporation, which to the extent provided in the resolution
or in the By-Laws of the corporation, shall have and may exercise the powers
of the Board of Directors in the management of the business and affairs of
the corporation, and may authorize the seal of the corporation to be affixed
to all papers which may require it.
1.2. Powers Conferred by By-Laws. The corporation may in its By-Laws confer
powers upon its directors in addition to the foregoing, and in addition to the
powers and authorities expressly conferred upon them by the laws of the State of
Delaware.
SECTION 2.
MEETING, OFFICERS AND BOOKS.
If the By-Laws so provide, the stockholders and the directors may hold their
meetings, and the corporation may have one or more offices, outside the State of
Delaware. The books of the corporation (subject to the provisions of the laws of
the State of Delaware) may be kept outside of the State of Delaware at such
places as from time to time may be designated by the Board of Directors.
SECTION 3.
VALIDITY OF CONTRACT.
No contract, transaction or act of the corporation shall be affected or
invalidated by the fact that any of the directors of the corporation are in any
wise interested in or connected with any other party to such contract,
transaction or act or are themselves parties to such contract, transaction or
act, provided that such interest shall be fully disclosed or otherwise known to
the Board of Directors, or a majority thereof, at a meeting of the Board at
which such contract, transaction or act is authorized, ratified or confirmed;
and any such director may be counted in determining the existence of a quorum at
any such meeting and may vote thereat in connection with such authorization,
ratification or confirmation with like force and effect as if he were not so
interested or connected or was not a party to such contract, transaction or act.
SECTION 4.
RATIFICATION.
The Board of Directors in its discretion may submit for approval,
ratification or confirmation by the stockholders at any meeting thereof any
contract, transaction or act of the Board or of any officer, agent or employee
of the corporation, and any such contract, transaction or act which shall have
been so approved, ratified or confirmed by the holders of Common Stock and
holders of Class B Stock, voting as provided in subsection 1.6 of Article FOURTH
hereof shall be as valid and binding upon the corporation and upon the
stockholders thereof as though it had been approved and ratified by each and
every stockholder of the corporation.
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SECTION 5.
LIMITATION ON LIABILITY OF DIRECTORS; INDEMNIFICATION AND INSURANCE.
5.1. Limitation on Liability of Directors. A director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability
(i) for any breach of the director's duty of loyalty to the corporation
or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this subsection 5.1 of Article EIGHTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
5.2. Effect of Any Repeal or Modification of Subsection 5.1. Any repeal or
modification of subsection 5.1 of this Article EIGHTH by the stockholders of the
corporation shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
5.3. Indemnification and Insurance.
5.3a. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the corporation or is or was serving at the request of the
corporation as a director, officer or employee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including penalties, fines,
judgments, attorney's fees, amounts paid or to be paid in settlement and excise
taxes or penalties imposed on fiduciaries with respect to (i) employee benefit
plans, (ii) charitable organizations or (iii) similar matters) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that the corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person (other than pursuant to
subsection 5.3b of this Article EIGHTH) only if such proceeding (or part
thereof) was authorized by the Board of Directors of the corporation. The right
to indemnification conferred in this subsection 5.3a of Article EIGHTH shall be
a contract right and shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer, including
without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this subsection 5.3a of Article
EIGHTH or otherwise.
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5.3b. Right of Claimant to Bring Suit. If a claim which the corporation is
obligated to pay under subsection 5.3a of this Article EIGHTH is not paid in
full by the corporation within 60 days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
5.3c. Miscellaneous. The provisions of this Section 5.3 of Article EIGHTH
shall cover claims, actions, suits and proceedings, civil or criminal, whether
now pending or hereafter commenced, and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this Section 5.3 of Article EIGHTH should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
5.3d. Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 5.3 of Article EIGHTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
5.3e. Insurance. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
5.3f. Indemnification of Agents of the Corporation. The corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to be paid by the corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
agent of the corporation to the fullest extent of the provisions of this Section
5.3 of Article EIGHTH with respect to the indemnification and advancement of
expenses of directors, officers and employees of the corporation.
SECTION 6.
LIMITATION OF ACTIONS.
Every asserted right of action by or on behalf of the corporation or by or
on behalf of any stockholder against any past, present or future member of the
Board of Directors, or any committee thereof, or any officer or employee of the
corporation or any subsidiary thereof, arising out of or in connection with any
bonus, supplemental compensation, stock investment, stock option or other plan
or plans for the benefit of any employee, irrespective of the place where such
right of action may arise or be asserted and irrespective of the place of
residence of any such director, member, officer or employee, shall cease and be
barred upon the expiration of three years from the later of the following dates:
(a) the date of any alleged act or omission in respect of which such right of
action may be asserted to have arisen, or (b) the date upon which the
corporation shall have made generally available to its stockholders information
with respect to, as the case may be, the aggregate amount credited for a fiscal
21
year to a bonus or supplemental compensation reserve, or the aggregate amount of
awards in a fiscal year of bonuses or supplemental compensation, or the
aggregate amount of stock optioned or made available for purchase during a
fiscal year, or the aggregate amount expended by the corporation during a fiscal
year in connection with any other plan for the benefit of such employees, to all
or any part of which such asserted right of action may relate; and every
asserted right of action by or on behalf of any employee, past, present or
future, or any spouse, child, or legal representative thereof, against the
corporation or any subsidiary thereof arising out of or in connection with any
such plan, irrespective of the place where such asserted right of action may
arise or be asserted, shall cease and be barred by the expiration of three years
from the date of the alleged act or omission in respect of which such right of
action shall be asserted to have arisen.
NINTH. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware, and all rights of
the stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which only
restates and integrates and does not further amend the provisions of the
Restated Certificate of Incorporation of this corporation as heretofore amended
or supplemented, there being no discrepancies between those provisions and the
provisions of this Restated Certificate of Incorporation, and it having been
duly adopted by the corporation's Board of Directors in accordance with Section
245 of the Delaware General Corporation Law, has been signed by its duly
authorized officer this 9th day of April, 1998.
FORD MOTOR COMPANY
By:/s/John M. Rintamaki
---------------------------
John M. Rintamaki
Secretary
---------------
RESTATED
CERTIFICATE OF INCORPORATION
---------------
April 9, 1998
TABLE OF CONTENTS
Article Page
FIRST Name of Corporation....................................... 1
SECOND Registered Office and Registered Agent.................... 1
THIRD Purposes.................................................. 1
FOURTH Capital Stock............................................. 3
1. Voting Powers and Rights............................. 3
1.1. Generally........................................ 3
1.2. Common Stock..................................... 3
1.3. Class B Stock.................................... 3
1.3a. 40% of Total Voting Power..................... 3
1.3b. 30% of Total Voting Power..................... 3
1.3c. One Vote per Share Voting Power............... 3
1.3d. Computations.................................. 4
1.4. No Cumulative Voting............................. 4
1.5. Quorum.......................................... 4
1.6. Manner of Voting................................ 4
1.7. Class Vote by Class B Stock..................... 4
1.8. Preferred Stock................................. 5
2. Ownership and Conversion of Class B Stock........... 5
2.1. Ownership of Class B Stock...................... 5
2.2. Transfers of Class B Stock on Corporate Books... 5
2.3. Conversion of Class B Stock for the Purpose of
Sale or Other Disposition....................... 7
2.4. Ultimate Convertibility of Class B Stock for
Any Purpose..................................... 8
2.5. Legend on Certificates for Class B Stock........ 8
2.6. Violations of Subsections 2.1 and 2.2........... 8
2.7. Definitions; Verification of Affidavits......... 8
3. General Provisions With Respect to Conversions...... 9
3.1. Manner of Effecting Conversions................. 9
3.2. Dividends....................................... 9
3.3. Prohibition against Reissue..................... 9
3.4. Reservation of Common Stock..................... 9
3.5. Investigation of Facts.......................... 9
4. Subscription Rights................................. 10
4.1. Special Right of Subscription -- Class B Stock.. 10
4.2. Other Subscription Rights Denied................ 10
4.3. Discretionary Offering of Common Stock.......... 10
5. Rights to Dividends................................. 10
6. Adjustments......................................... 10
6.1. Increase in Outstanding Stock................... 10
6.2. Consolidation or Combination of Shares.......... 11
7. All Shares Otherwise Equal.......................... 11
8. Preferred Stock..................................... 11
8.1. Preferred Stock................................. 11
8.2. Full Voting Preferred Stock..................... 13
9. Miscellaneous Provisions............................ 13
9.1. Original Stock Ledger Conclusive................ 13
9.2. Treasury Stock Not Outstanding.................. 13
9.3. Singular and Plural............................. 13
9.4. References...................................... 13
9.5. Captions or Headings............................ 13
10. Series B Cumulative Preferred Stock................ 13
FIFTH Original Capital......................................... 18
SIXTH Duration................................................. 18
SEVENTH Property of Stockholders Not Subject to Corporate Debts.. 18
EIGHTH Management of Business................................... 18
1. Powers of the Board of Directors.................... 18
1.1. General......................................... 18
1.2. Powers Conferred by By-Laws..................... 19
2. Meeting, Officers and Books......................... 19
3. Validity of Contract................................ 19
4. Ratification........................................ 19
5. Limitation on Liability of Directors; Indemnification
and Insurance....................................... 20
5.1. Limitation on Liability of Directors............ 20
5.2. Effect of Any Repeal or Modification of
Subsection 5.1.................................. 20
5.3. Indemnification and Insurance................... 20
5.3a. Right to Indemnification..................... 20
5.3b. Right of Claimant to Bring Suit.............. 21
5.3c. Miscellaneous................................ 21
5.3d. Non-Exclusivity of Rights.................... 21
5.3e. Insurance.................................... 21
5.3f. Indemnification of Agents of the Corporation. 21
6. Limitation of Actions............................... 21
NINTH Amendments............................................... 22
CERTIFICATION
The undersigned officer of Ford Motor Company, a Delaware corporation,
does hereby certify that the following is a true and correct copy of the
Restated Certificate of Incorporation of the Company in effect on the date
hereof.
Witness my hand and the seal of the Company this ________ day of
_______________, _________.
-------------------------
Secretary
RESTATED
CERTIFICATE OF INCORPORATION
OF
FORD MOTOR COMPANY
(originally incorporated on July 9, 1919 under the name Eastern Holding Company)
---------------
FIRST. The name of the corporation is Ford Motor Company.
SECOND. Its registered office in the State of Delaware is located at 1209 Orange
Street in the City of Wilmington, County of New Castle. The name and address of
its registered agent is THE CORPORATION TRUST COMPANY, 1209 Orange Street,
Wilmington, Delaware 19801.
THIRD. The nature of the business of the corporation, and the objects or
purposes proposed to be transacted, promoted or carried on by it, are:
1. To manufacture, buy, sell, deal in and with automobiles, trucks,
cars, tractors, farm machinery and implements, aircraft, landcraft and
watercraft, and vehicles and articles of every type and description, and
parts, accessories and equipment therefor and for use in connection
therewith, and generally to conduct a manufacturing business in all its
branches;
2. To manufacture, buy, sell, deal in, and to engage in, conduct and
carry on the business of manufacturing, buying, selling and dealing in
goods, commodities, wares, merchandise, services and real and personal
property of every type and description;
3. To engage in and carry on the business of mining, drilling for,
preparing for market, buying, selling, exchanging, producing and otherwise
dealing in coal, oil, gas, minerals, ores and metals, and in the products
and by-products thereof, of every type and description; to buy, sell,
exchange, lease, acquire and deal in lands, mines, coal, oil, gas and
mineral rights and claims, and to conduct all business appertaining thereto;
4. To buy, sell, exchange, lease, acquire, deal in and with, and operate
boats, vessels, railroads and means of transportation of every type and
description and to conduct all business appertaining thereto;
5. To render management, supervisory, accounting, styling, technical and
other services and advice for any person, firm, association or corporation,
domestic or foreign, by contract or otherwise, and to receive therefor fixed
or contingent compensation, or compensation in the form of commissions,
management fees, shares in gross or net receipts or profits, or in any other
manner, or upon any other terms whatsoever, or so to act without direct
compensation;
1
6. To sow, cultivate and harvest agricultural products and products of
the soil; to breed, feed, raise, slaughter, store, pack, sell and deal in
and with livestock and products therefrom; to operate greenhouses, hotbeds
and cold frames for the raising of plants, shrubs and flowers; in general to
conduct in all their several departments and branches the businesses of
agriculturists, farmers, fruit growers, dairymen, stock raisers,
slaughterers, packers, gardeners, nurserymen and florists;
7. To improve, manage, develop, sell, assign, transfer, lease, mortgage,
pledge, or otherwise dispose of or turn to account or deal with all or any
part of the property of the corporation and from time to time to vary any
investment or employment of capital of the corporation;
8. To borrow money, and to make and issue notes, bonds, debentures,
obligations and evidences of indebtedness of every type and description,
whether secured by mortgage, pledge or otherwise, without limit as to
amount, and to secure the same by mortgage, pledge or otherwise; and
generally to make and perform agreements and contracts of every type and
description;
9. To the same extent as natural persons might or could do, to purchase
or otherwise acquire, and to hold, own, maintain, work, develop, sell,
lease, exchange, hire, convey, mortgage or otherwise dispose of and deal in,
lands and leaseholds, and interests, estates and rights of every type and
description in real, personal or mixed property, and franchises, rights,
licenses or privileges necessary, convenient or appropriate for any of the
purposes herein expressed;
10. To apply for, obtain, register, purchase, lease or otherwise acquire
and to hold, own, use, develop, operate and introduce, and to sell, assign,
grant licenses or territorial rights in respect to, or otherwise to turn to
account or dispose of, copyrights, trademarks, trade names, brands, labels,
and registrations of the foregoing whether issued by the United States or
any other country or government, patent rights, letters patent of the United
States or of any other country or government, and inventions, improvements
and processes, whether used in connection with or secured under letters
patent or otherwise;
11. To make donations for the public welfare or for charitable,
scientific or educational purposes; and to cooperate with other corporations
or with natural persons, or to act alone, in the creation and maintenance of
community funds or of charitable, scientific, or educational
instrumentalities;
12. To acquire by purchase, subscription or otherwise, and to hold for
investment or otherwise and to use, sell, assign, underwrite, transfer,
mortgage, pledge or otherwise deal with or dispose of stocks, bonds or any
other obligations or securities of any person, firm, association or
corporation, public, private or municipal, or of the Government of the
United States or of any state, territory, colony or dependency thereof, or
of any foreign state or country; to merge or consolidate with any
corporation in such manner as may be permitted by law; to acquire, and to
pay for in cash, stocks or bonds of this corporation, or otherwise, the good
will, rights, assets and property, and to undertake or assume the whole or
any part of the obligations or liabilities, of any person, firm, association
or corporation; to aid in any manner any corporation whose stocks, bonds or
other obligations are held or in any manner guaranteed by this corporation,
or in which this corporation is in any way interested; and to do any other
act or thing for the preservation, protection, improvement or enhancement of
the value of any such stocks, bonds or other obligations; and while the
owner of such stocks, bonds or other obligations to exercise all the rights,
powers and privileges of ownership thereof, and to exercise any and all
voting powers thereon; to guarantee the payment of dividends upon any stock,
or of the principal or interest, or both, of any bond or other obligation,
and the performance of any contract; and
13. To do everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object or the
furtherance of any power hereinbefore set forth, either alone or in
association with other corporations, firms or individuals, and to do every
other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers, or any
part or parts thereof, provided the same be not inconsistent with the laws
under which the corporation is organized.
2
The business of the corporation is from time to time to do any one or more
of the acts and things hereinabove set forth, and it shall have power to conduct
and carry on its business, or any part thereof, and to have one or more offices,
and to exercise any or all of its corporate powers and rights in the State of
Delaware, and in the various other states, territories, colonies and
dependencies of the United States, in the District of Columbia, and in any or
all foreign countries.
The objects and purposes of the corporation amended herein shall be
construed as powers as well as objects and purposes and their enumeration herein
shall not be deemed to exclude, by inference or otherwise, any power, object or
purpose which the corporation is empowered to exercise, whether expressly or
impliedly, under the law of the State of Delaware now or hereafter in effect.
FOURTH. The total number of shares of all classes of stock which the corporation
shall have authority to issue is 3,295,058,688 shares, consisting of 30,000,000
shares of Preferred Stock of the par value of One Dollar ($1.00) each,
265,058,688 shares of Class B Stock of the par value of One Dollar ($1.00) each
and 3,000,000,000 shares of Common Stock of the par value of One Dollar ($1.00)
each.
The following is a statement of all of the designations and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, of the three classes of the stock of the corporation:
SECTION 1.
VOTING POWERS AND RIGHTS.
1.1. Generally. All rights to vote and all voting power (including, without
limitation thereto, the right to elect directors) shall be vested exclusively,
in accordance with the provisions of subsections 1.1 through 1.7, inclusive, in
the holders of Class B Stock and the holders of Common Stock, voting together
without regard to class, all except as otherwise expressly provided by
subsection 1.7 or by the Board of Directors pursuant to subsection 8.1 or as
otherwise expressly required by the law of the State of Delaware.
1.2. Common Stock. At every meeting of the stockholders each holder of
Common Stock shall be entitled to one vote for each share of such stock held by
him.
1.3. Class B Stock. At every meeting of the stockholders each holder of
Class B Stock shall be entitled, for each share of such stock held by him, to
such number of votes (which may be or include a fraction of a vote) as shall be
determined in accordance with the provisions of this subsection 1.3, which
number of votes, so determined from time to time, is hereinafter referred to as
the "Class B voting power per share."
1.3a. 40% of Total Voting Power. Until the total number of outstanding
shares of Class B Stock shall first fall below 60,749,880, the Class B
voting power per share shall be the quotient derived by dividing the total
number of outstanding shares of Class B Stock into a number equal to
two-thirds of the aggregate number of votes which could be cast by the
holders of all of the outstanding shares of (i) Common Stock and (ii) Full
Voting Preferred Stock (as defined in subsection 8.2), if any, if they were
present at the meeting.
1.3b. 30% of Total Voting Power. From and after the time when the total
number of outstanding shares of Class B Stock shall first fall below
60,749,880 and until such number shall first fall below 33,749,932, the
Class B voting power per share shall be the quotient derived by dividing the
total number of outstanding shares of Class B Stock into a number equal to
three-sevenths of the aggregate number of votes which could be cast by the
holders of all of the outstanding shares of (i) Common Stock and (ii) Full
Voting Preferred Stock, if any, if they were present at the meeting.
1.3c. One Vote per Share Voting Power. From and after the time when the
total number of outstanding shares of Class B Stock shall first fall below
33,749,932, the Class B voting power per share shall be one vote per share.
3
1.3d. Computations. The quotients referred to in this subsection 1.3
shall be computed to the nearest one-thousandth of a vote (or, if there be
no nearest one-thousandth, shall be computed to a ten-thousandth of a vote).
1.4. No Cumulative Voting. No stockholder shall be entitled to exercise any
right of cumulative voting. If, however, any stockholder should at any time
become entitled to exercise a right of cumulative voting, whether by express
requirement of the law of the State of Delaware or otherwise, then at all
elections of directors each holder of Class B Stock shall be entitled to cast
for each share of Class B Stock held by him a number of votes equal to the Class
B voting power per share then exercisable (computed as provided in subsection
1.3), each holder of Common Stock shall be entitled to cast one vote for each
share of Common Stock held by him, and each holder of Full Voting Preferred
Stock, if any, of any series shall be entitled to cast the number of votes
(which may be one vote or more or less than one vote) for each share of Full
Voting Preferred Stock held by him which the Board of Directors shall have
determined pursuant to subsection 8.1 in establishing voting rights with respect
to such series, in each case multiplied by the number of directors to be
elected, and each such holder shall be entitled to cast all of his votes for a
single director or to distribute them among the number of directors to be voted
for, or to cast his votes for any two or more of them as he may see fit.
1.5. Quorum. At any meeting of stockholders, the presence in person or by
proxy of the holders of shares entitled to cast a majority of all of the votes
(computed, in the case of each share of Class B Stock, as provided in subsection
1.3) which could be cast at such meeting by the holders of all of the
outstanding shares of stock of the corporation entitled to vote on every matter
that is to be voted on without regard to class at such meeting shall constitute
a quorum.
1.6. Manner of Voting. At every meeting of stockholders, the holders of
Class B Stock, the holders of Common Stock and the holders of Full Voting
Preferred Stock, if any, shall vote together, without regard to class, and their
votes (computed, in the case of each share of Class B Stock, as provided in
subsection 1.3) shall be counted and totalled together; and at any meeting duly
called and held at which a quorum (determined in accordance with the provisions
of subsection 1.5) is present, a majority of the votes (computed, in the case of
each share of Class B Stock, as provided in subsection 1.3) which could be cast
at such meeting upon a given question by such holders who are present in person
or by proxy shall be necessary, in addition to any vote or other action that may
be expressly required by the provisions of this Certificate of Incorporation or
by the law of the State of Delaware, to decide such question, and shall decide
such question if no such additional vote or other action is so required.
1.7. Class Vote by Class B Stock. Notwithstanding any of the other
provisions of this Section 1, the corporation shall not, until the total number
of outstanding shares of Class B Stock shall first fall below 33,749,932, take
any of the following actions except with the affirmative vote of the holders of
a majority of the outstanding shares of Class B Stock, given separately as a
class, which vote shall be in addition to any vote or other action required by
the law of the State of Delaware:
(i) issue any additional shares of Class B Stock except pursuant to an
offer for subscription or purchase required by the provisions of subsection
4.3 or for the purpose of payment of a stock dividend; or
(ii) effect any reduction, by amendment of the Certificate of
Incorporation, retirement or exchange or otherwise, in the number of
outstanding shares of Class B Stock in any manner other than by conversion
into Common Stock as expressly provided in Section 2 or through voluntary
disposition thereof to the corporation by a holder of shares of Class B
Stock; or
(iii) effect any change or alteration in any provision of this Article
FOURTH, except as required by the provisions of subsection 3.3; or
(iv) merge or consolidate with or into any other corporation, or permit
any other corporation to merge or consolidate with or into it; or
(v) sell, lease or exchange all or substantially all of its property and
assets; or
4
(vi) transfer any assets to another corporation and in connection
therewith distribute stock or other securities of such other corporation to
the holders of stock or other securities of this corporation; or
(vii) voluntarily dissolve or liquidate.
1.8. Preferred Stock. Each holder of Preferred Stock shall be entitled to
vote to the extent, if any, provided by the Board of Directors pursuant to
subsection 8.1.
SECTION 2.
OWNERSHIP AND CONVERSION OF CLASS B STOCK.
2.1. Ownership of Class B Stock. Until the time when the total number of
outstanding shares of Class B Stock shall first fall below 33,749,932, holders
of shares of such stock may (i) sell or otherwise dispose of or transfer any or
all of the shares of such stock held by them, respectively, only to persons who
at the time of transfer meet the qualifications set forth in clause (i), (ii),
(iii), (iv), (v), (vi) or (vii) of subsection 2.2, and to no other persons, or
(ii) convert any or all of such shares into shares of Common Stock for the
purpose of effecting the sale or disposition of such shares of Common Stock to
any person as provided in subsection 2.3. Until such time, no one other than
those persons in whose names shares of Class B Stock become registered on the
original stock ledger of the corporation by reason of their record ownership of
shares of Class A Common Stock or Class B Common Stock of the corporation which
are reclassified into shares of Class B Stock, or transferees or successive
transferees who at the time of transfer meet such qualifications set forth in
subsection 2.2, shall by virtue of the acquisition of a certificate for shares
of Class B Stock have the status of an owner or holder of shares of Class B
Stock or be recognized as such by the corporation or be otherwise entitled to
enjoy for his own benefit the special rights and powers of a holder of shares of
Class B Stock.
From and after the time when the total number of outstanding shares of Class
B Stock shall first fall below 33,749,932, holders of shares of such stock may
(i) sell or otherwise dispose of or transfer such shares to any person or (ii)
convert such shares into shares of Common Stock for any purpose as provided in
subsection 2.4, and any person may have the status of an owner or holder of
shares of Class B Stock.
Holders of shares of Class B Stock may at any and all times transfer to any
person the shares of Common Stock issuable upon conversion of such shares of
Class B Stock.
2.2. Transfers of Class B Stock on Corporate Books. Shares of Class B Stock
shall be transferred on the books of the corporation and a new certificate
therefor issued, upon presentation at the office of the Secretary of the
corporation (or at such additional place or places as may from time to time be
designated by the Secretary or any Assistant Secretary of the corporation) of
the certificate for such shares, in proper form for transfer and accompanied by
all requisite stock transfer tax stamps, only if such certificate when so
presented shall also be accompanied by an affidavit of the record holder of such
shares stating that such certificate is being presented to effect a transfer of
such shares to any one or more of the following:
(i) a natural person who meets the qualification that he is either (A) a
natural person in whose name shares of Class B Stock became registered on
the original stock ledger of the corporation by reason of his record
ownership of shares of Class A Common Stock or Class B Common Stock of the
corporation which were reclassified into shares of Class B Stock, or (B) a
descendant (including any descendant by adoption and any descendant of an
adopted descendant) of a natural person in whose name shares of Class B
Stock were so registered by reason of such record ownership, or (C) a spouse
or surviving spouse of a natural person who is or was while living included
within the provisions of either of the foregoing subclauses (A) or (B); or
(ii) any two or more natural persons each of whom meets the
qualification set forth in clause (i) next above; or
5
(iii) a transferee as trustee of a trust, created by deed or will, which
trust meets the following requirements: (1) the income thereof from the date
of transfer to such trustee shall be required to be paid to or applied for
the use and benefit of or accumulated for one or more natural persons,
concurrently or successively, all of whom meet or will meet the
qualification set forth in clause (i) above, and no other persons, except
for such portion of the income as is payable to or to be applied for the use
and benefit of or accumulated for one or more (A) other natural persons
during terms not to exceed their respective lives, who, though they do not
meet the qualification set forth in clause (i) above, are relatives of or
are or were employees or dependents of natural persons meeting such
qualification, or (B) exempt organizations (as defined in subsection 2.7)
for terms not exceeding 33 years from the date of the commencement of the
trust, and except for such accumulated income as may be required to be paid
over to others upon the death of the person for whom it was accumulated, and
(2) the principal thereof shall be required to be transferred, assigned and
paid over upon failure or termination of the interests in the income thereof
referred to in subclause (1) above; provided, however, that if the
provisions of such trust relating to the disposition of income or principal
are subject to amendment in such manner that the trust could be changed to a
trust not meeting the requirements of this clause (iii), the trustee
thereof, as such, shall have entered into a written agreement with the
corporation providing that if such trust shall be amended at any time prior
to the time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932 such trustee will promptly deliver to the
corporation a copy, duly certified by such trustee, of the instrument
effecting such amendment and will, unless such trust as so amended then
meets the requirements of this clause (iii), promptly surrender the
certificates for the shares of Class B Stock then held in such trust for
conversion of such shares into an equal number of shares of Common Stock in
the manner set forth in subsection 3.1; or
(iv) a stock corporation (hereinafter called a "corporate holder"), not
less than 75% of the number of outstanding shares of each class of the
capital stock (other than shares of non-voting preferred stock as defined in
subsection 2.7) of which shall, at the time at which the certificate for
shares of Class B Stock is presented for transfer, be owned beneficially and
of record by natural persons who meet the qualification set forth in clause
(i) above (provided that the same natural person need not be both the
beneficial and the record owner), or be owned of record by trustees (or
successor trustees) of trusts which meet the requirements set forth in
clause (iii) above, or be so owned in part by such natural persons and so
owned in part by such trustees (or successor trustees); which corporate
holder shall have entered into a written agreement with this corporation
providing that if, at any time prior to the time when the total number of
outstanding shares of Class B Stock shall first fall below 33,749,932, less
than 75% of the number of outstanding shares of each class of the capital
stock (other than shares of non-voting preferred stock as defined in
subsection 2.7) of such corporate holder shall be so owned, then such
corporate holder will either promptly (A) transfer the shares of Class B
Stock then held by it to one or more persons who at the time of transfer
meet the qualifications set forth in clause (i), (ii), (iii), (iv), (v),
(vi) or (vii) of subsection 2.2 and cause the certificates therefor to be
duly presented for transfer into the name of such person or persons, or (B)
surrender the certificates for such shares of Class B Stock for conversion
of such shares into an equal number of shares of Common Stock, in the manner
set forth in subsection 3.1, or (C) transfer some of such shares as provided
in the foregoing subclause (A) and surrender the certificates for the
remainder of such shares for conversion as provided in the foregoing
subclause (B); or
(v) a legatee under the will of any stockholder of the corporation
deceased prior to the effective date of the reclassification of the Class A
Common Stock and the Class B Common Stock of the corporation into Class A
Stock, Class B Stock and Common Stock, such transfer being made for the
purpose of satisfying, in any manner permitted by such will, all or any part
of the claim of the said legatee in respect to a legacy of any kind under
said will; provided, however, that the aggregate number of shares of Class B
Stock transferred pursuant to this clause (v) shall not exceed 8,437,480; or
(vi) a transferee as successor trustee or as co-trustee of a trust of
which his immediate transferor was or is a trustee registered as a record
holder of such shares of Class B Stock as permitted by the provisions of
subsection 2.1; provided, however, that if the proviso in clause (iii) above
is applicable such successor trustee or co-trustee shall have entered into a
written agreement with the corporation whereby he assumes the obligations of
the agreement required by said clause (iii); or
(vii) the corporation for the purpose of retirement pursuant to the
provisions of subsection 3.3;
6
and if the certificate for such shares of Class B Stock when presented for
transfer shall also be accompanied
(a) in the case of a transfer to a transferee as trustee of a trust
which meets the requirements set forth in clause (iii) above, by copies,
duly certified by such trustee, of the instrument creating such trust and of
all amendments thereto, and by an original counterpart or certified copy of
any agreement required by said clause (iii), or
(b) in the case of a transfer to a corporate holder as defined in clause
(iv) above, by a copy, duly certified by the Secretary or an Assistant
Secretary of such corporate holder, of the list of its stockholders and
their respective holdings as shown on its stock books at the time at which
the certificate for shares of Class B Stock is presented for transfer, and
by an original counterpart or certified copy of the agreement referred to in
said clause (iv), or
(c) in the case of a transfer to a legatee described in clause (v)
above, by a copy of the will of the deceased stockholder, duly certified by
the clerk of the court in which the same shall have been probated, or
(d) in the case of a transfer to a transferee as successor trustee or
co-trustee as permitted by clause (vi) above, by an original counterpart or
certified copy of any agreement of such transferee required by said clause
(vi).
From and after the time when the total number of outstanding shares of Class
B Stock shall first fall below 33,749,932, shares of Class B Stock shall be
transferable to any person without regard to the foregoing provisions of this
subsection 2.2.
2.3. Conversion of Class B Stock for the Purpose of Sale or Other
Disposition. A record holder of shares of Class B Stock shall be entitled at any
time and from time to time to convert any or all of such shares held by him into
the same number of shares of Common Stock in the manner set forth in subsection
3.1, for the purpose of effecting the sale or other disposition of such shares
of Common Stock, by surrendering certificates representing the shares of Class B
Stock to be converted, in proper form for transfer of the shares of Common Stock
issuable upon such conversion and accompanied by all stock transfer tax stamps
requisite for such transfer, and also accompanied by a written notice by such
record holder to the corporation stating that such record holder desires to
convert such shares of Class B Stock into the same number of shares of Common
Stock for the purpose of the sale or other disposition of such shares of Common
Stock and requesting that the corporation issue all of such shares of Common
Stock to persons (other than such record holder) named therein, setting forth
the number of shares of Common Stock to be issued to each such person and the
denominations in which the certificates therefor are to be issued. Each such
notice shall be signed by the record holder (or in an appropriate case by his
guardian, committee, executor, administrator or other legal representative).
If a record holder of shares of Class B Stock shall deliver a certificate
for such shares, endorsed by him for transfer or accompanied by an instrument of
transfer signed by him, to a person who does not meet the qualifications set
forth in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of subsection 2.2,
then such person or any successive transferee of such certificate may treat such
endorsement or instrument as authorizing him on behalf of such record holder to
convert such shares in the manner above provided for the purpose of the transfer
to himself of the shares of Common Stock issuable upon such conversion, and to
give on behalf of such record holder the written notice of conversion above
required, and may convert such shares of Class B Stock accordingly.
If such shares of Class B Stock shall improperly have been registered in the
name of such a person (or in the name of any successive transferee of such
certificate) and a new certificate therefor issued, such person or transferee
may surrender such new certificate for cancellation, accompanied by the written
notice of conversion above required, in which case (A) such person or transferee
shall be deemed to have elected to treat the endorsement on (or instrument of
transfer accompanying) the certificate so delivered by such former record holder
as authorizing such person or transferee on behalf of such former record holder
so to convert such shares and so to give such notice, (B) the shares of Class B
Stock registered in the name of such former record holder shall be deemed to
have been surrendered for conversion for the purpose of the transfer to such
person or transferee of the shares of Common Stock issuable upon conversion, and
(C) the appropriate entries shall be made on the books of the corporation to
reflect such action.
7
2.4. Ultimate Convertibility of Class B Stock for Any Purpose. From and
after the time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932, (i) each record holder of shares of such
stock may convert such shares into an equal number of shares of Common Stock,
irrespective of the purpose of such conversion, by surrendering the certificates
for such shares in the manner set forth in subsection 3.1; and (ii) no
additional shares of Class B Stock shall be issued by the corporation, and the
corporation shall promptly after such time take such appropriate action as may
be necessary to reduce the authorized amount of Class B Stock to the number of
shares then outstanding.
2.5. Legend on Certificates for Class B Stock. Every certificate for shares
of Class B Stock shall bear a legend on the face thereof reading as follows:
"The shares of Class B Stock represented by this certificate may not be
transferred to any person who does not meet the qualifications set forth in
clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of subsection 2.2 of
Article FOURTH of the Certificate of Incorporation of this corporation as
amended (Sections 1 to 9 of said Article FOURTH being set forth in full on
the reverse hereof) and no person who does not meet the qualifications
prescribed by subsection 2.1 of said Article FOURTH is entitled to own or to
be registered as the record holder of such shares of Class B Stock, until
the time referred to in said subsection 2.1, but the record holder of this
certificate may at any time convert such shares of Class B Stock into the
same number of shares of Common Stock for the purpose of effecting the sale
or other disposition of such shares of Common Stock to any person. Each
holder of this certificate, by accepting the same, accepts and agrees to all
of the foregoing."
Any certificate for shares of Class B Stock which shall be issued after the
time when the total number of outstanding shares of Class B Stock shall first
fall below 33,749,932 shall not bear such legend.
2.6. Violations of Subsections 2.1 and 2.2. In the event that the Board of
Directors of the corporation (or any committee of the Board of Directors, or any
officer of the corporation, designated for the purpose by the Board of
Directors) shall determine, upon the basis of facts not disclosed in any
affidavit or other document accompanying the certificate for shares of Class B
Stock when presented for transfer, that such shares of Class B Stock have been
registered in violation of the provisions of subsection 2.1 or 2.2, or shall
determine that a person is enjoying for his own benefit the special rights and
powers of shares of Class B Stock in violation of such provisions, then the
corporation shall take such action at law or in equity as is appropriate under
the circumstances. An unforeclosed pledge made to secure a bona fide obligation
shall not be deemed to violate such provisions.
2.7. Definitions; Verification of Affidavits. For the purposes of this
Section 2, each reference to a "person" shall be deemed to include not only a
natural person, but also a corporation, partnership, association, unincorporated
organization or legal entity of any kind; each reference to a "natural person"
(or to a "record holder" of shares, if a natural person) shall be deemed to
include in his representative capacity a guardian, committee, executor,
administrator or other legal representative of such natural person or record
holder; the term "non-voting preferred stock" as applied to stock in a corporate
holder, shall mean stock which does not entitle the holder thereto to vote for
the election of directors under any circumstances and carries no right to
dividends or interest in earnings other than the right to dividends in a fixed
amount per annum, which right may be cumulative; and the term "exempt
organization" shall mean any corporation, community chest, fund or foundation
organized and operated exclusively for religious, charitable, scientific,
literary, or educational purposes which, at the date of verification of the
affidavit in which reference thereto is made, shall have been exempted or be
exempt, wholly or partially, from taxation on income under the provisions of
Section 501(c)(3) of the Internal Revenue Code of 1986, as then in effect, or
other provision of Federal law then in effect governing the exemption from
Federal taxation on income of institutions organized and operated exclusively
for any one or more of the foregoing purposes. Each affidavit of a record holder
furnished pursuant to subsection 2.2 shall be verified as of a date not earlier
than five days prior to the date of delivery thereof, and, where such record
holder is a corporation or partnership, shall be verified by an officer of the
corporation or by a general partner of the partnership, as the case may be.
8
SECTION 3.
GENERAL PROVISIONS WITH RESPECT TO CONVERSIONS.
3.1. Manner of Effecting Conversions. Each conversion of shares of Class B
Stock into shares of Common Stock made pursuant to the provisions of Section 2
shall be effected by the surrender of the certificate representing the shares to
be converted at the office of the Secretary of the corporation (or at such
additional place or places as may from time to time be designated by the
Secretary or any Assistant Secretary of the corporation) in such form and
accompanied by such notice, affidavits, other documents and stock transfer tax
stamps, if any, as may be prescribed by and shall comply with the applicable
provisions of Section 2, and upon such surrender the record holder of such
shares (or, in the case of a conversion made for the purpose of effecting the
sale, gift or other disposition of the shares of Common Stock issuable upon such
conversion, the person named in the prescribed notice) shall be entitled to
become, and shall be registered in the original stock ledger of the corporation
as, the record holder of the number of shares of Common Stock issuable upon such
conversion, and each such share of Class B Stock shall be converted into one
share of Common Stock, as the Common Stock shall then be constituted, and
thereupon there shall be issued and delivered to such record holder or other
named person, as the case may be, promptly at such office or other designated
place, a certificate or certificates for such number of shares of Common Stock.
3.2. Dividends. Upon any conversion of shares of Class B Stock into shares
of Common Stock pursuant to the provisions of Section 2, any dividend, for which
the record date shall be subsequent to such conversion, which may have been
declared on the shares of Class B Stock so converted shall be deemed to have
been declared, and shall be payable, with respect to the shares of Common Stock
into or for which such shares of Class B Stock shall have been so converted, and
any such dividend which shall have been declared on such shares payable in
shares of Class B Stock shall be deemed to have been declared, and shall be
payable, in shares of Common Stock.
3.3. Prohibition against Reissue. The corporation shall not reissue or
resell any shares of Class B Stock which shall have been converted into shares
of Common Stock pursuant to or as permitted by the provisions of Section 2, or
any shares of Class B Stock which shall have been acquired by the corporation in
any other manner. The corporation shall, from time to time, take such
appropriate action as may be necessary to retire such shares and to reduce the
authorized amount of Class B Stock accordingly.
3.4. Reservation of Common Stock. The corporation shall at all times reserve
and keep available, out of its authorized but unissued Common Stock, such number
of shares of Common Stock as would become issuable upon the conversion of all
shares of Class B Stock then outstanding.
3.5. Investigation of Facts. In connection with any transfer or conversion
of any stock of the corporation pursuant to or as permitted by the provisions of
Section 2 of this Article FOURTH, or in connection with the making of any
determination referred to in subsection 2.6,
(i) the corporation shall be under no obligation to make any
investigation of facts unless an officer, employee or agent of the
corporation responsible for making such transfer or determination or issuing
Common Stock pursuant to such conversion has substantial reason to believe,
or unless the Board of Directors (or a committee of the Board of Directors
designated for the purpose) determines that there is substantial reason to
believe, that any affidavit or other document is incomplete or incorrect in
a material respect or that an investigation would disclose facts upon which
any determination referred to in subsection 2.6 should be made, in either of
which events the corporation shall make or cause to be made such
investigation as it may deem necessary or desirable in the circumstances and
have a reasonable time to complete such investigation, and
(ii) neither the corporation nor any director, officer, employee or
agent of the corporation shall be liable in any manner for any action taken
or omitted in good faith.
9
SECTION 4.
SUBSCRIPTION RIGHTS.
4.1. Special Right of Subscription -- Class B Stock. No shares of Class B
Stock and no obligations or shares convertible into shares of Class B Stock,
whether now or hereafter authorized and whether unissued or in the treasury,
shall be issued, for money paid, property or any other consideration, unless the
holders of Class B Stock shall first have been given a special right to
subscribe thereto, on a ratable basis, at a price not less favorable than that
at which such shares or obligations are to be offered to others.
4.2. Other Subscription Rights Denied. Except for the special subscription
rights conferred on the holders of Class B Stock by the provisions of
subsections 4.1 and 4.3, no holder of stock of the corporation of any class
shall have any pre-emptive or preferential right to subscribe to or purchase any
shares of any class of stock of the corporation, whether now or hereafter
authorized and whether unissued or in the treasury, or any obligations
convertible into shares of any class of stock of the corporation, at any time
issued or sold, or any right to subscribe to or purchase any thereof.
4.3. Discretionary Offering of Common Stock. If the Board of Directors in
its discretion should at any time offer shares of Common Stock, or any shares or
obligations convertible into shares of Common Stock, for subscription or
purchase by the holders of Common Stock, then there shall be offered to all of
the holders of Class B Stock for subscription or purchase on a ratable basis,
and at the same price per share or unit, shares of stock of that class, or
shares or obligations convertible into shares of stock of that class, as the
case may be; provided, however, that from and after the time when the total
number of outstanding shares of Class B Stock shall first have fallen below
33,749,932, there shall be offered to the holders of the outstanding shares of
such stock for subscription or purchase shares of Common Stock or shares or
obligations convertible into shares of Common Stock, as the case may be, in lieu
of additional shares of Class B Stock or shares or obligations convertible into
shares of Class B Stock, as the case may be.
SECTION 5.
RIGHTS TO DIVIDENDS.
When and as dividends are declared (other than dividends declared with
respect to Preferred Stock), whether payable in cash, in property or in shares
of stock of the corporation (other than shares of Class B Stock or Common
Stock), the holders of Class B Stock and the holders of Common Stock shall be
entitled to share equally, share for share, in such dividends. No dividends
shall be declared or paid in shares of Class B Stock or Common Stock of the
corporation, except dividends, otherwise ratable, payable in shares of Class B
Stock to holders of that class of stock, and in shares of Common Stock to
holders of that class of stock; provided, however, that from and after the time
when the total number of outstanding shares of Class B Stock shall first have
fallen below 33,749,932, any such dividend shall be declared and paid to the
holders of shares of Class B Stock in shares of Common Stock.
SECTION 6.
ADJUSTMENTS.
6.1. Increase in Outstanding Stock. If the corporation shall in any manner
increase the number of outstanding shares of Class B Stock, then each of the
share numbers set forth in the Table below and appearing in the provision of
this Article FOURTH set forth in such Table opposite such share number shall be
deemed to be increased by a number bearing the same proportion to such share
number that such increase in the number of outstanding shares of Class B Stock
bears to the number of shares of Class B Stock outstanding immediately prior to
such increase; and in each such case all of such provisions and this subsection
6.1 shall be applied so as to give effect to such share numbers as so increased.
10
If any such increase shall be effected by amendment of the Certificate of
Incorporation, then such amendment shall itself increase each of the appropriate
share numbers in accordance with the foregoing.
TABLE
Provision Share Number
--------- ------------
1.3a.................................................. 60,749,880
1.3b.................................................. 60,749,880
1.3b.................................................. 33,749,932
1.3c.................................................. 33,749,932
1.7................................................... 33,749,932
2.1................................................... 33,749,932
2.2(iii).............................................. 33,749,932
2.2(iv)............................................... 33,749,932
2.2(v)................................................ 8,437,480
2.2 (last paragraph).................................. 33,749,932
2.4................................................... 33,749,932
2.5................................................... 33,749,932
4.3................................................... 33,749,932
5..................................................... 33,749,932
6.2. Consolidation or Combination of Shares. If the corporation shall effect
the consolidation or combination of all outstanding shares of Class B Stock by
amendment of the Certificate of Incorporation, so as to reduce the number of
outstanding shares thereof, then such amendment shall also decrease each of the
share numbers set forth in the Table in subsection 6.1 and appearing in the
provision of this Article FOURTH set forth in such Table opposite such share
number, by a number bearing the same proportion to such share number that the
decrease in the number of outstanding shares of stock of such class effected by
such consolidation or combination bears to the number of shares of stock of such
class outstanding immediately prior to the effective date of such consolidation
or combination.
SECTION 7.
ALL SHARES OTHERWISE EQUAL.
Except as herein otherwise expressly provided, shares of Class B Stock and
Common Stock shall all be of equal rank and shall all entitle the holders
thereof to the same rights and privileges.
SECTION 8.
PREFERRED STOCK.
8.1. Preferred Stock. Shares of Preferred Stock may be issued from time to
time in one or more series. Subject to the limitations set forth in this Article
FOURTH and any limitations prescribed by the law of the State of Delaware, the
Board of Directors is expressly authorized, prior to issuance of any series of
Preferred Stock, to fix by resolution or resolutions providing for the issue of
any series the number of shares included in such series and the designation,
relative powers, preferences and rights, and the qualifications, limitations or
restrictions of such series. Pursuant to the foregoing general authority vested
in the Board of Directors, but (except as provided in the proviso to clause (v)
of this subsection 8.1) not in limitation of the powers conferred on the Board
of Directors thereby and by the law of the State of Delaware, the Board of
Directors is expressly authorized to determine with respect to each series of
Preferred Stock:
(i) the distinctive designation of such series and the number of shares
(which number from time to time may be decreased by the Board of Directors,
but not below the number of such shares then outstanding, or may be
increased by the Board of Directors unless otherwise provided in creating
such series) constituting such series;
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(ii) the rate and time at which, and the preferences and conditions
under which, dividends shall be payable on shares of such series, the status
of such dividends as cumulative, or non-cumulative, the date or dates from
which dividends, if cumulative, shall accumulate, and the status of such
shares as participating or non-participating after the payment of dividends
as to which such shares are entitled to any preference;
(iii) the right, if any, of holders of shares of such series to convert
such shares into, or to exchange such shares for, shares of any other class
or classes (other than Class B) or of any other series of the same class,
the prices or rates of conversion or exchange, and adjustments thereto, and
any other terms and conditions applicable to such conversion or exchange;
(iv) the rights and preferences, if any, of the holders of shares of
such series upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the corporation, which amount
may vary depending upon whether such liquidation, dissolution, or winding up
is voluntary or involuntary, and, if voluntary, may vary at different dates,
and the status of the shares of such series as participating or
non-participating after the satisfaction of any such rights and preferences;
(v) the voting powers, if any, of the holders of shares of such series which
may, without limiting the generality of the foregoing, include (A) the
general right to one vote (or more or less than one vote) per share on every
matter (including, without limitation, the election of directors) voted on
by the stockholders without regard to class and (B) the limited right to
vote, as a series by itself or together with other series of Preferred Stock
or together with all series of Preferred Stock as a class, upon such
matters, under such circumstances and upon such conditions as the Board of
Directors may fix, including, without limitation, the right, voting as a
series by itself or together with other series of Preferred Stock or
together with all series of Preferred Stock as a class, to elect one or more
directors of the corporation in the event there shall have been a default in
the payment of dividends on any one or more series of Preferred Stock;
provided, however, that, notwithstanding the provisions of the preceding
subclause (B) or any other provisions of this subsection 8.1 to the
contrary, the holders of Preferred Stock, considered in the aggregate
(whether voting by individual series or together with other series of
Preferred Stock or together with all series of Preferred Stock as a class),
shall not have the right to a separate class vote for the election of one or
more directors of the corporation except in the event there shall have been
a default in the payment of dividends on any one or more series of Preferred
Stock and, in such event, shall not have the right to a separate class vote
for more than a total of two directors;
(vi) the times, terms and conditions, if any, upon which shares of such
series shall be subject to redemption, including the amount which the
holders of shares of such series shall be entitled to receive upon
redemption (which amount may vary under different conditions or at different
redemption dates) and the amount, terms, conditions and manner of operation
of any purchase, retirement or sinking fund to be provided for the shares of
such series;
(vii) the limitations, if any, applicable while such series is
outstanding on the payment of dividends or making of distributions on, or
the acquisition or redemption of, Common Stock or Class B Stock or any other
class of shares ranking junior, either as to dividends or upon liquidation,
to the shares of such series;
(viii) the conditions or restrictions, if any, upon the issue of any
additional shares (including additional shares of such series or any other
class) ranking on a parity with or prior to the shares of such series either
as to dividends or upon liquidation; and
(ix) any other relative powers, preferences and participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, of shares of such series;
in each case, so far as not inconsistent with the provisions of the
Certificate of Incorporation or the law of the State of Delaware. All shares
of Preferred Stock shall be identical and of equal rank except as to the
particulars that may be fixed by the Board of Directors as provided above,
and all shares of each series of Preferred Stock shall be identical and of
equal rank except as to the dates from which cumulative dividends, if any,
thereon shall be cumulative.
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8.2. Full Voting Preferred Stock. As used in this Article FOURTH, the term
"Full Voting Preferred Stock" shall mean Preferred Stock of any one or more
series the holders of which shall be entitled to vote on every matter
(including, without limitation, the election of directors) voted on by the
stockholders without regard to class.
SECTION 9.
MISCELLANEOUS PROVISIONS.
9.1. Original Stock Ledger Conclusive. In determining the number or the
record holders of outstanding shares of any class of stock of the corporation
for the purpose of computing or determining the method of computing the vote or
determining the right to vote at any meeting of stockholders or of a class of
stockholders, the original stock ledger of the corporation as at the close of
business on the record date fixed for such meeting or, if the stock transfer
books of the corporation shall have been closed for a period immediately
preceding the date of such meeting, then as at the close of business on the date
as of which such stock transfer books were so closed, shall be conclusive for
all purposes, and in determining the number or the record holders of outstanding
shares of any class of stock of the corporation for any other purpose, the
original stock ledger of the corporation as at the close of business on the date
as of which the determination is being made, shall be conclusive for all
purposes; all notwithstanding any other provision of this Article FOURTH or any
entries made on the books of the corporation pursuant to the last paragraph of
subsection 2.3 subsequent to the close of business on such record or other date.
9.2. Treasury Stock Not Outstanding. The term "outstanding" as used in this
Article FOURTH with reference to shares of stock of the corporation shall not
include any stock held in the treasury of the corporation.
9.3. Singular and Plural. Wherever a term shall be used in the singular in
this Article FOURTH, it shall be deemed in all appropriate circumstances to
include also the plural, and wherever a term shall be so used in the plural, it
shall similarly be deemed to include also the singular.
9.4. References. Unless otherwise stated, all references contained in this
Article FOURTH to Sections, subsections, paragraphs, clauses or subclauses refer
to Sections, subsections, paragraphs, clauses or subclauses of this Article
FOURTH.
9.5. Captions or Headings. The captions or headings contained in this
Article FOURTH are for purposes of reference only and shall not limit or affect,
or have any bearing on the construction or interpretation of, any of the terms
or provisions of this Article FOURTH.
SECTION 10.
SERIES B CUMULATIVE PREFERRED STOCK.
The provisions of the corporation's Certificate of the Designations, Powers,
Preferences and Relative, Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of the Series B Cumulative Preferred Stock
are set forth below:
(1) Number of Shares and Designation. Twenty-three thousand (23,000) shares
of the preferred stock, $1.00 par value, of the corporation are hereby
constituted as a series of the preferred stock designated as Series B Cumulative
Preferred Stock (the "Series B Preferred Stock").
(2) Definitions. For purposes of the Series B Preferred Stock, the following
terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series B Preferred
Stock.
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"Business Day" shall mean any day other than a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Class B Stock" shall mean the Class B Stock of the corporation, par
value $1.00 per share.
"Common Stock" shall mean the Common Stock of the corporation, par value
$1.00 per share.
"Dividend Payment Date" shall have the meaning specified in Section 3(a)
hereof.
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of March, June, September and December of each year and ending
on and including the day preceding the first day of the next succeeding
Dividend Period (other than the Initial Dividend Period).
"Initial Dividend Period" shall mean the period commencing on the Issue
Date and ending on (and including) February 28, 1993.
"Issue Date" shall mean the first date on which any shares of Series B
Preferred Stock are issued.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Transfer Agent" means Chemical Bank or such other agent or agents of
the corporation as may be designated by the Board of Directors of the
corporation as the transfer agent for the Series B Preferred Stock.
(3) Dividends. (a) The holders of shares of the Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends at the rate per annum of
$4,125 per share of Series B Preferred Stock. Such dividends shall be cumulative
from the Issue Date, whether or not in any Dividend Period or Periods there
shall be funds of the corporation legally available for the payment of such
dividends, and shall be payable quarterly, when, as and if declared by the Board
of Directors, on the first Business Day of March, June, September and December
of each year (each a "Dividend Payment Date"), commencing on the first Business
Day next succeeding the Initial Dividend Period, or at such additional times and
for such interim periods, if any, as determined by the Board of Directors. Each
such dividend shall be payable in arrears to the holders of record of shares of
the Series B Preferred Stock, as they appear on the stock records of the
corporation at the close of business on such record dates, not more than 60 days
preceding the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any regular Dividend Payment
Date, to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for the
Series B Preferred Stock shall be computed by dividing the annual dividend rate
by four. The amount of dividends payable for the Initial Dividend Period on the
Series B Preferred Stock, or any other period shorter or longer than a full
Dividend Period on the Series B Preferred Stock, shall be computed on the basis
of twelve 30-day months and a 360-day year. Holders of shares of Series B
Preferred Stock called for redemption on a redemption date between a dividend
payment record date and the respective Dividend Payment Date shall not be
entitled to receive the dividend payable on such Dividend Payment Date. Holders
of shares of Series B Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of cumulative dividends,
as herein provided, on the Series B Preferred Stock. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series B Preferred Stock which may be in arrears.
(c) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or series of stock of the
corporation ranking, as to dividends, on a parity with the Series B Preferred
Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series B Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full or a sum sufficient
14
for such payment is not set apart, as aforesaid, upon the shares of the Series B
Preferred Stock and any other class or series of stock ranking on a parity as to
dividends with the Series B Preferred Stock, all dividends declared upon shares
of the Series B Preferred Stock and all dividends declared upon such other stock
shall be declared pro rata so that the amounts of dividends per share declared
on the Series B Preferred Stock and such other stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of the
Series B Preferred Stock and such other stock bear to each other.
(d) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends (other than dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of Common Stock,
Class B Stock or other stock ranking junior to the Series B Preferred Stock, as
to dividends and upon liquidation) shall be declared or paid or set apart for
payment or other distribution declared or made upon the Common Stock, Class B
Stock or any other stock of the corporation ranking junior to the Series B
Preferred Stock, as to dividends or upon liquidation nor shall any Common Stock,
nor any Class B Stock nor any other such stock of the corporation ranking junior
to the Series B Preferred Stock, as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any shares
of any such stock) by the corporation (except by conversion into or exchange for
stock of the corporation ranking junior to the Series B Preferred Stock, as to
dividends and upon liquidation) unless, in each case (i) the full cumulative
dividends on all outstanding shares of the Series B Preferred Stock and any
other stock of the corporation ranking on a parity with the Series B Preferred
Stock, as to dividends or upon liquidation shall have been paid or set apart for
payment for all past Dividend Periods and dividend periods with respect to such
other stock and (ii) sufficient funds shall have been set apart for the payment
of the dividend for the current Dividend Period with respect to the Series B
Preferred Stock and the dividend period with respect to any other stock of the
corporation ranking on a parity with the Series B Preferred Stock, as to
dividends or upon liquidation.
(4) Liquidation Preference. (a) In the event of any liquidation, dissolution
or winding up of the corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the corporation (whether capital or
surplus) shall be made to or set apart for the holders of Common Stock, Class B
Stock or any other series or class or classes of stock of the corporation
ranking junior to the Series B Preferred Stock, upon liquidation, dissolution or
winding up, the holders of the shares of Series B Preferred Stock shall be
entitled to receive $50,000 per share plus an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated and unpaid thereon
to the date of final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the corporation, the assets of the corporation, or proceeds
thereof, distributable among the holders of the shares of Series B Preferred
Stock shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of stock ranking, as to liquidation,
dissolution or winding up, on a parity with the Series B Preferred Stock, then
such assets, or the proceeds thereof, shall be distributed among the holders of
shares of Series B Preferred Stock and any such other stock ratably in
accordance with the respective amounts which would be payable on such shares of
Series B Preferred Stock and any such other stock if all amounts payable thereon
were paid in full. For the purposes of this Section (4), (i) a consolidation or
merger of the corporation with one or more corporations, (ii) a sale or transfer
of all or substantially all of the corporation's assets or (iii) a statutory
share exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or class or
classes of stock ranking on a parity with or prior to Series B Preferred Stock,
upon liquidation, dissolution or winding up, upon any liquidation, dissolution
or winding up of the corporation, after payment shall have been made in full to
the holders of Series B Preferred Stock, as provided in this Section (4), any
other series or class or classes of stock ranking junior to Series B Preferred
Stock, upon liquidation, dissolution or winding up shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of Series B Preferred Stock shall not be entitled to share therein.
(5) Redemption at the Option of the Corporation. (a) Series B Preferred
Stock may not be redeemed by the corporation prior to December 1, 2002, on or
after which the corporation, at its option, may, subject to the next succeeding
paragraph, redeem the shares of Series B Preferred Stock, in whole or in part,
out of funds legally available therefor, at any time or from time to time,
subject to the notice provisions and provisions for partial redemption described
15
below, at a redemption price of $50,000 per share, plus an amount equal to
accrued and unpaid dividends, if any, to the date fixed for redemption, whether
or not earned or declared.
In addition to any other requirement for or condition to the redemption of
the Series B Preferred Stock set forth in this Section (5), the corporation
shall not redeem any shares of Series B Preferred Stock pursuant to this Section
(5)(a) unless within the two-year period ending on the date fixed for redemption
the corporation shall have issued sufficient shares of Common Stock to result in
receipt by the corporation of net proceeds from such issuances of an aggregate
amount at least equal to the aggregate liquidation preference of the shares of
Series B Preferred Stock proposed to be redeemed.
(b) In the event that full cumulative dividends on the Series B Preferred
Stock and any other class or series of stock of the corporation ranking, as to
dividends, on a parity with the Series B Preferred Stock have not been paid or
declared and set apart for payment, the Series B Preferred Stock may not be
redeemed in part and the corporation may not purchase or acquire shares of
Series B Preferred Stock or such other stock otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares of
Series B Preferred Stock and such other stock.
(c) In the event the corporation shall redeem shares of Series B Preferred
Stock, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 10 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock records of the corporation. Each such
notice shall state: (1) the redemption date; (2) the number of shares of Series
B Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price; and (5)
that dividends on the shares to be redeemed shall cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the corporation in providing
money for the payment of the redemption price), (i) dividends on the shares of
the Series B Preferred Stock so called for redemption shall cease to accrue,
(ii) said shares shall no longer be deemed to be outstanding, and (iii) all
rights of the holders thereof as stockholders of the corporation (except the
right to receive from the corporation the redemption price without interest
thereon) shall cease. The corporation's obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the redemption date, the corporation shall deposit with a bank or trust
company (which may be an affiliate of the corporation) having an office in the
Borough of Manhattan, City of New York, and having a capital and surplus of at
least $50,000,000, funds necessary for such redemption, in trust, with
irrevocable instructions that such funds be applied to the redemption of the
shares of Series B Preferred Stock so called for redemption. Any interest
accrued on such funds shall be paid to the corporation from time to time. Any
funds so deposited and unclaimed at the end of two years from such redemption
date shall be released or repaid to the corporation, after which, subject to any
applicable laws relating to escheat or unclaimed property, the holder or holders
of such shares of Series B Preferred Stock so called for redemption shall look
only to the corporation for payment of the redemption price.
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Series B Preferred Stock
are to be redeemed, shares to be redeemed shall be selected by the corporation
from outstanding shares of Series B Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the corporation in its sole discretion to be equitable. If fewer
than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(6) Shares to be Retired. All shares of Series B Preferred Stock purchased
or redeemed by the corporation shall be retired and canceled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series.
16
(ii) the rate and time at which, and the preferences and conditions
under which, dividends shall be payable on shares of such series, the status
of such dividends as cumulative, or non-cumulative, the date or dates from
which dividends, if cumulative, shall accumulate, and the status of such
shares as participating or non-participating after the payment of dividends
as to which such shares are entitled to any preference;
(iii) the right, if any, of holders of shares of such series to convert
such shares into, or to exchange such shares for, shares of any other class
or classes (other than Class B) or of any other series of the same class,
the prices or rates of conversion or exchange, and adjustments thereto, and
any other terms and conditions applicable to such conversion or exchange;
(iv) the rights and preferences, if any, of the holders of shares of
such series upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the corporation, which amount
may vary depending upon whether such liquidation, dissolution, or winding up
is voluntary or involuntary, and, if voluntary, may vary at different dates,
and the status of the shares of such series as participating or
non-participating after the satisfaction of any such rights and preferences;
(v) the voting powers, if any, of the holders of shares of such series which
may, without limiting the generality of the foregoing, include (A) the
general right to one vote (or more or less than one vote) per share on every
matter (including, without limitation, the election of directors) voted on
by the stockholders without regard to class and (B) the limited right to
vote, as a series by itself or together with other series of Preferred Stock
or together with all series of Preferred Stock as a class, upon such
matters, under such circumstances and upon such conditions as the Board of
Directors may fix, including, without limitation, the right, voting as a
series by itself or together with other series of Preferred Stock or
together with all series of Preferred Stock as a class, to elect one or more
directors of the corporation in the event there shall have been a default in
the payment of dividends on any one or more series of Preferred Stock;
provided, however, that, notwithstanding the provisions of the preceding
subclause (B) or any other provisions of this subsection 8.1 to the
contrary, the holders of Preferred Stock, considered in the aggregate
(whether voting by individual series or together with other series of
Preferred Stock or together with all series of Preferred Stock as a class),
shall not have the right to a separate class vote for the election of one or
more directors of the corporation except in the event there shall have been
a default in the payment of dividends on any one or more series of Preferred
Stock and, in such event, shall not have the right to a separate class vote
for more than a total of two directors;
(vi) the times, terms and conditions, if any, upon which shares of such
series shall be subject to redemption, including the amount which the
holders of shares of such series shall be entitled to receive upon
redemption (which amount may vary under different conditions or at different
redemption dates) and the amount, terms, conditions and manner of operation
of any purchase, retirement or sinking fund to be provided for the shares of
such series;
(vii) the limitations, if any, applicable while such series is
outstanding on the payment of dividends or making of distributions on, or
the acquisition or redemption of, Common Stock or Class B Stock or any other
class of shares ranking junior, either as to dividends or upon liquidation,
to the shares of such series;
(viii) the conditions or restrictions, if any, upon the issue of any
additional shares (including additional shares of such series or any other
class) ranking on a parity with or prior to the shares of such series either
as to dividends or upon liquidation; and
(ix) any other relative powers, preferences and participating, optional
or other special rights, and the qualifications, limitations or restrictions
thereof, of shares of such series;
in each case, so far as not inconsistent with the provisions of the
Certificate of Incorporation or the law of the State of Delaware. All shares
of Preferred Stock shall be identical and of equal rank except as to the
particulars that may be fixed by the Board of Directors as provided above,
and all shares of each series of Preferred Stock shall be identical and of
equal rank except as to the dates from which cumulative dividends, if any,
thereon shall be cumulative.
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8.2. Full Voting Preferred Stock. As used in this Article FOURTH, the term
"Full Voting Preferred Stock" shall mean Preferred Stock of any one or more
series the holders of which shall be entitled to vote on every matter
(including, without limitation, the election of directors) voted on by the
stockholders without regard to class.
SECTION 9.
MISCELLANEOUS PROVISIONS.
9.1. Original Stock Ledger Conclusive. In determining the number or the
record holders of outstanding shares of any class of stock of the corporation
for the purpose of computing or determining the method of computing the vote or
determining the right to vote at any meeting of stockholders or of a class of
stockholders, the original stock ledger of the corporation as at the close of
business on the record date fixed for such meeting or, if the stock transfer
books of the corporation shall have been closed for a period immediately
preceding the date of such meeting, then as at the close of business on the date
as of which such stock transfer books were so closed, shall be conclusive for
all purposes, and in determining the number or the record holders of outstanding
shares of any class of stock of the corporation for any other purpose, the
original stock ledger of the corporation as at the close of business on the date
as of which the determination is being made, shall be conclusive for all
purposes; all notwithstanding any other provision of this Article FOURTH or any
entries made on the books of the corporation pursuant to the last paragraph of
subsection 2.3 subsequent to the close of business on such record or other date.
9.2. Treasury Stock Not Outstanding. The term "outstanding" as used in this
Article FOURTH with reference to shares of stock of the corporation shall not
include any stock held in the treasury of the corporation.
9.3. Singular and Plural. Wherever a term shall be used in the singular in
this Article FOURTH, it shall be deemed in all appropriate circumstances to
include also the plural, and wherever a term shall be so used in the plural, it
shall similarly be deemed to include also the singular.
9.4. References. Unless otherwise stated, all references contained in this
Article FOURTH to Sections, subsections, paragraphs, clauses or subclauses refer
to Sections, subsections, paragraphs, clauses or subclauses of this Article
FOURTH.
9.5. Captions or Headings. The captions or headings contained in this
Article FOURTH are for purposes of reference only and shall not limit or affect,
or have any bearing on the construction or interpretation of, any of the terms
or provisions of this Article FOURTH.
SECTION 10.
SERIES B CUMULATIVE PREFERRED STOCK.
The provisions of the corporation's Certificate of the Designations, Powers,
Preferences and Relative, Participating or Other Rights, and the Qualifications,
Limitations or Restrictions Thereof, of the Series B Cumulative Preferred Stock
are set forth below:
(1) Number of Shares and Designation. Twenty-three thousand (23,000) shares
of the preferred stock, $1.00 par value, of the corporation are hereby
constituted as a series of the preferred stock designated as Series B Cumulative
Preferred Stock (the "Series B Preferred Stock").
(2) Definitions. For purposes of the Series B Preferred Stock, the following
terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series B Preferred
Stock.
13
"Business Day" shall mean any day other than a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Class B Stock" shall mean the Class B Stock of the corporation, par
value $1.00 per share.
"Common Stock" shall mean the Common Stock of the corporation, par value
$1.00 per share.
"Dividend Payment Date" shall have the meaning specified in Section 3(a)
hereof.
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of March, June, September and December of each year and ending
on and including the day preceding the first day of the next succeeding
Dividend Period (other than the Initial Dividend Period).
"Initial Dividend Period" shall mean the period commencing on the Issue
Date and ending on (and including) February 28, 1993.
"Issue Date" shall mean the first date on which any shares of Series B
Preferred Stock are issued.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Transfer Agent" means Chemical Bank or such other agent or agents of
the corporation as may be designated by the Board of Directors of the
corporation as the transfer agent for the Series B Preferred Stock.
(3) Dividends. (a) The holders of shares of the Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends at the rate per annum of
$4,125 per share of Series B Preferred Stock. Such dividends shall be cumulative
from the Issue Date, whether or not in any Dividend Period or Periods there
shall be funds of the corporation legally available for the payment of such
dividends, and shall be payable quarterly, when, as and if declared by the Board
of Directors, on the first Business Day of March, June, September and December
of each year (each a "Dividend Payment Date"), commencing on the first Business
Day next succeeding the Initial Dividend Period, or at such additional times and
for such interim periods, if any, as determined by the Board of Directors. Each
such dividend shall be payable in arrears to the holders of record of shares of
the Series B Preferred Stock, as they appear on the stock records of the
corporation at the close of business on such record dates, not more than 60 days
preceding the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any regular Dividend Payment
Date, to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for the
Series B Preferred Stock shall be computed by dividing the annual dividend rate
by four. The amount of dividends payable for the Initial Dividend Period on the
Series B Preferred Stock, or any other period shorter or longer than a full
Dividend Period on the Series B Preferred Stock, shall be computed on the basis
of twelve 30-day months and a 360-day year. Holders of shares of Series B
Preferred Stock called for redemption on a redemption date between a dividend
payment record date and the respective Dividend Payment Date shall not be
entitled to receive the dividend payable on such Dividend Payment Date. Holders
of shares of Series B Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of cumulative dividends,
as herein provided, on the Series B Preferred Stock. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series B Preferred Stock which may be in arrears.
(c) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or series of stock of the
corporation ranking, as to dividends, on a parity with the Series B Preferred
Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series B Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full or a sum sufficient
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for such payment is not set apart, as aforesaid, upon the shares of the Series B
Preferred Stock and any other class or series of stock ranking on a parity as to
dividends with the Series B Preferred Stock, all dividends declared upon shares
of the Series B Preferred Stock and all dividends declared upon such other stock
shall be declared pro rata so that the amounts of dividends per share declared
on the Series B Preferred Stock and such other stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of the
Series B Preferred Stock and such other stock bear to each other.
(d) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends (other than dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of Common Stock,
Class B Stock or other stock ranking junior to the Series B Preferred Stock, as
to dividends and upon liquidation) shall be declared or paid or set apart for
payment or other distribution declared or made upon the Common Stock, Class B
Stock or any other stock of the corporation ranking junior to the Series B
Preferred Stock, as to dividends or upon liquidation nor shall any Common Stock,
nor any Class B Stock nor any other such stock of the corporation ranking junior
to the Series B Preferred Stock, as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any shares
of any such stock) by the corporation (except by conversion into or exchange for
stock of the corporation ranking junior to the Series B Preferred Stock, as to
dividends and upon liquidation) unless, in each case (i) the full cumulative
dividends on all outstanding shares of the Series B Preferred Stock and any
other stock of the corporation ranking on a parity with the Series B Preferred
Stock, as to dividends or upon liquidation shall have been paid or set apart for
payment for all past Dividend Periods and dividend periods with respect to such
other stock and (ii) sufficient funds shall have been set apart for the payment
of the dividend for the current Dividend Period with respect to the Series B
Preferred Stock and the dividend period with respect to any other stock of the
corporation ranking on a parity with the Series B Preferred Stock, as to
dividends or upon liquidation.
(4) Liquidation Preference. (a) In the event of any liquidation, dissolution
or winding up of the corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the corporation (whether capital or
surplus) shall be made to or set apart for the holders of Common Stock, Class B
Stock or any other series or class or classes of stock of the corporation
ranking junior to the Series B Preferred Stock, upon liquidation, dissolution or
winding up, the holders of the shares of Series B Preferred Stock shall be
entitled to receive $50,000 per share plus an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated and unpaid thereon
to the date of final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the corporation, the assets of the corporation, or proceeds
thereof, distributable among the holders of the shares of Series B Preferred
Stock shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of stock ranking, as to liquidation,
dissolution or winding up, on a parity with the Series B Preferred Stock, then
such assets, or the proceeds thereof, shall be distributed among the holders of
shares of Series B Preferred Stock and any such other stock ratably in
accordance with the respective amounts which would be payable on such shares of
Series B Preferred Stock and any such other stock if all amounts payable thereon
were paid in full. For the purposes of this Section (4), (i) a consolidation or
merger of the corporation with one or more corporations, (ii) a sale or transfer
of all or substantially all of the corporation's assets or (iii) a statutory
share exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or class or
classes of stock ranking on a parity with or prior to Series B Preferred Stock,
upon liquidation, dissolution or winding up, upon any liquidation, dissolution
or winding up of the corporation, after payment shall have been made in full to
the holders of Series B Preferred Stock, as provided in this Section (4), any
other series or class or classes of stock ranking junior to Series B Preferred
Stock, upon liquidation, dissolution or winding up shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of Series B Preferred Stock shall not be entitled to share therein.
(5) Redemption at the Option of the Corporation. (a) Series B Preferred
Stock may not be redeemed by the corporation prior to December 1, 2002, on or
after which the corporation, at its option, may, subject to the next succeeding
paragraph, redeem the shares of Series B Preferred Stock, in whole or in part,
out of funds legally available therefor, at any time or from time to time,
subject to the notice provisions and provisions for partial redemption described
15
below, at a redemption price of $50,000 per share, plus an amount equal to
accrued and unpaid dividends, if any, to the date fixed for redemption, whether
or not earned or declared.
In addition to any other requirement for or condition to the redemption of
the Series B Preferred Stock set forth in this Section (5), the corporation
shall not redeem any shares of Series B Preferred Stock pursuant to this Section
(5)(a) unless within the two-year period ending on the date fixed for redemption
the corporation shall have issued sufficient shares of Common Stock to result in
receipt by the corporation of net proceeds from such issuances of an aggregate
amount at least equal to the aggregate liquidation preference of the shares of
Series B Preferred Stock proposed to be redeemed.
(b) In the event that full cumulative dividends on the Series B Preferred
Stock and any other class or series of stock of the corporation ranking, as to
dividends, on a parity with the Series B Preferred Stock have not been paid or
declared and set apart for payment, the Series B Preferred Stock may not be
redeemed in part and the corporation may not purchase or acquire shares of
Series B Preferred Stock or such other stock otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares of
Series B Preferred Stock and such other stock.
(c) In the event the corporation shall redeem shares of Series B Preferred
Stock, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 10 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock records of the corporation. Each such
notice shall state: (1) the redemption date; (2) the number of shares of Series
B Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price; and (5)
that dividends on the shares to be redeemed shall cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the corporation in providing
money for the payment of the redemption price), (i) dividends on the shares of
the Series B Preferred Stock so called for redemption shall cease to accrue,
(ii) said shares shall no longer be deemed to be outstanding, and (iii) all
rights of the holders thereof as stockholders of the corporation (except the
right to receive from the corporation the redemption price without interest
thereon) shall cease. The corporation's obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the redemption date, the corporation shall deposit with a bank or trust
company (which may be an affiliate of the corporation) having an office in the
Borough of Manhattan, City of New York, and having a capital and surplus of at
least $50,000,000, funds necessary for such redemption, in trust, with
irrevocable instructions that such funds be applied to the redemption of the
shares of Series B Preferred Stock so called for redemption. Any interest
accrued on such funds shall be paid to the corporation from time to time. Any
funds so deposited and unclaimed at the end of two years from such redemption
date shall be released or repaid to the corporation, after which, subject to any
applicable laws relating to escheat or unclaimed property, the holder or holders
of such shares of Series B Preferred Stock so called for redemption shall look
only to the corporation for payment of the redemption price.
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Series B Preferred Stock
are to be redeemed, shares to be redeemed shall be selected by the corporation
from outstanding shares of Series B Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the corporation in its sole discretion to be equitable. If fewer
than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(6) Shares to be Retired. All shares of Series B Preferred Stock purchased
or redeemed by the corporation shall be retired and canceled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series.
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(7) Ranking. Any class or classes of stock of the corporation shall be
deemed to rank:
(i) prior to the Series B Preferred Stock, as to dividends or as to
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series B Preferred
Stock;
(ii) on a parity with the Series B Preferred Stock, as to dividends or
as to distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the Series B
Preferred Stock, if the holders of such class of stock and the Series B
Preferred Stock shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation prices, without preference or priority
one over the other; and
(iii) junior to the Series B Preferred Stock, as to dividends or as to
the distribution of assets upon liquidation, dissolution or winding up, if
such stock shall be Common Stock or Class B Stock or if the holders of
Series B Preferred Stock shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of shares of such
stock.
(8) Voting. Except as herein provided or as otherwise from time to time
required by law, holders of Series B Preferred Stock shall have no voting
rights. Whenever, at any time or times, dividends payable on the shares of
Series B Preferred Stock at the time outstanding shall be in arrears for such
number of Dividend Periods, which Dividend Periods need not be consecutive,
which shall in the aggregate contain not less than 540 days, the holders of
Series B Preferred Stock shall have the exclusive right, voting separately as a
class with holders of shares of any one or more other series of preferred stock
ranking on a parity with the Series B Preferred Stock as to dividends, or on the
distribution of assets upon liquidation, dissolution or winding up and upon
which like voting rights have been conferred and are exercisable, to elect two
directors of the corporation at the corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders. At elections
for such directors, each holder of Series B Preferred Stock shall be entitled to
one vote for each share held (the holders of shares of any other series of
preferred stock ranking on such a parity being entitled to such number of votes,
if any, for each share of stock held as may be granted to them). Upon the
vesting of such right of the holders of Series B Preferred Stock, the maximum
authorized number of members of the Board of Directors shall automatically be
increased by two and the two vacancies so created shall be filled by vote of the
holders of outstanding Series B Preferred Stock (either alone or together with
the holders of shares of any one or more other series of preferred stock ranking
on such a parity and having like voting rights) as hereinafter set forth. The
right of holders of Series B Preferred Stock, voting separately as a class, to
elect (either alone or together with the holders of shares of any one or more
other series of preferred stock ranking on such a parity and having like voting
rights) members of the Board of Directors as aforesaid shall continue until such
time as all dividends accumulated on Series B Preferred Stock shall have been
paid in full, at which time such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned.
If the office of any director elected by the holders of Series B Preferred
Stock, voting as a class, becomes vacant by reason of death, resignation,
retirement, disqualification or removal from office or otherwise, the remaining
director elected by the holders of Series B Preferred Stock, voting as a class,
may choose a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred. Upon any termination of the right of the holders
of Series B Preferred Stock to vote for directors as herein provided, the term
of office of all directors then in office elected by Series B Preferred Stock,
voting as a class, shall terminate immediately. Whenever the term of office of
the directors elected by the holders of Series B Preferred Stock, voting as a
class, shall so terminate and the special voting powers vested in the holders of
Series B Preferred Stock shall have expired, the number of directors shall be
such number as may be provided for in the By-Laws irrespective of any increase
made pursuant to the provisions of this Section (8).
So long as any shares of the Series B Preferred Stock remain outstanding,
the consent of the holders of at least two-thirds of the shares of Series B
Preferred Stock outstanding at the time given in person or by proxy, either in
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writing or at any special or annual meeting, shall be necessary to permit,
effect or validate any one or more of the following:
(a) The authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior to
Series B Preferred Stock as to dividends or the distribution of assets upon
liquidation, dissolution or winding up, or
(b) The amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the Certificate of Incorporation of the
corporation, as amended, which would materially and adversely affect any right,
preference or voting power of Series B Preferred Stock or of the holders
thereof; provided, however, that any increase in the amount of authorized
preferred stock or the creation and issuance of other series of preferred stock,
or any increase in the amount of authorized shares of such series or of any
other series of preferred stock, in each case ranking on a parity with or junior
to the Series B Preferred Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences or voting
powers.
The foregoing voting provisions shall not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of Series B Preferred Stock shall have been
redeemed or sufficient funds shall have been deposited in trust to effect such
redemption, scheduled to be consummated within three months after such time.
(9) Record Holders. The corporation and the Transfer Agent may deem and
treat the record holder of any shares of Series B Preferred Stock as the true
and lawful owner thereof for all purposes, and neither the corporation nor the
Transfer Agent shall be affected by any notice to the contrary.
FIFTH. The amount of capital with which the corporation will commence business
is One Thousand Dollars ($1,000).
SIXTH. The 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 whatever.
EIGHTH. The following provisions are inserted for the management of the business
and for the conduct of the affairs of the corporation:
SECTION 1.
POWERS OF THE BOARD OF DIRECTORS.
1.1. General. In furtherance, and not in limitation, of the powers conferred
by statute, the Board of Directors is expressly authorized:
(1) To make, alter or repeal the By-Laws of the corporation; to set
apart out of any funds of the corporation available for dividends a reserve
or reserves for any proper purpose and to abolish the same in the manner in
which it was created, and to fix and determine and to vary the amount of the
working capital of the corporation; to determine the use and disposition of
the working capital and of any surplus or net profits over and above the
capital of the corporation determined as provided by law, and to fix the
times for the declaration and payment of dividends; to authorize and cause
to be executed mortgages and liens, without limit as to amount, upon the
real and personal property of the corporation; and to fix and determine the
fees and other compensation to be paid by the corporation to its directors;
(2) To determine from time to time whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the corporation (other than the stock ledger), or any
18
of them, shall be open to inspection of the stockholders; and no stockholder
shall have any right to inspect any account, book or document of the
corporation except as conferred by statute, unless authorized by a
resolution of the stockholders or directors;
(3) To make donations for the public welfare or for charitable,
scientific or educational purposes; and to cause the corporation to
cooperate with other corporations or with natural persons, or to act alone,
in the creation and maintenance of community funds or charitable,
scientific, or educational instrumentalities, and to make donations for the
public welfare or for charitable, scientific, or educational purposes; and
(4) To designate, by resolution passed by a majority of the entire Board,
one or more committees, each committee to consist of two or more of the
directors of the corporation, which to the extent provided in the resolution
or in the By-Laws of the corporation, shall have and may exercise the powers
of the Board of Directors in the management of the business and affairs of
the corporation, and may authorize the seal of the corporation to be affixed
to all papers which may require it.
1.2. Powers Conferred by By-Laws. The corporation may in its By-Laws confer
powers upon its directors in addition to the foregoing, and in addition to the
powers and authorities expressly conferred upon them by the laws of the State of
Delaware.
SECTION 2.
MEETING, OFFICERS AND BOOKS.
If the By-Laws so provide, the stockholders and the directors may hold their
meetings, and the corporation may have one or more offices, outside the State of
Delaware. The books of the corporation (subject to the provisions of the laws of
the State of Delaware) may be kept outside of the State of Delaware at such
places as from time to time may be designated by the Board of Directors.
SECTION 3.
VALIDITY OF CONTRACT.
No contract, transaction or act of the corporation shall be affected or
invalidated by the fact that any of the directors of the corporation are in any
wise interested in or connected with any other party to such contract,
transaction or act or are themselves parties to such contract, transaction or
act, provided that such interest shall be fully disclosed or otherwise known to
the Board of Directors, or a majority thereof, at a meeting of the Board at
which such contract, transaction or act is authorized, ratified or confirmed;
and any such director may be counted in determining the existence of a quorum at
any such meeting and may vote thereat in connection with such authorization,
ratification or confirmation with like force and effect as if he were not so
interested or connected or was not a party to such contract, transaction or act.
SECTION 4.
RATIFICATION.
The Board of Directors in its discretion may submit for approval,
ratification or confirmation by the stockholders at any meeting thereof any
contract, transaction or act of the Board or of any officer, agent or employee
of the corporation, and any such contract, transaction or act which shall have
been so approved, ratified or confirmed by the holders of Common Stock and
holders of Class B Stock, voting as provided in subsection 1.6 of Article FOURTH
hereof shall be as valid and binding upon the corporation and upon the
stockholders thereof as though it had been approved and ratified by each and
every stockholder of the corporation.
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SECTION 5.
LIMITATION ON LIABILITY OF DIRECTORS; INDEMNIFICATION AND INSURANCE.
5.1. Limitation on Liability of Directors. A director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability
(i) for any breach of the director's duty of loyalty to the corporation
or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this subsection 5.1 of Article EIGHTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
5.2. Effect of Any Repeal or Modification of Subsection 5.1. Any repeal or
modification of subsection 5.1 of this Article EIGHTH by the stockholders of the
corporation shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
5.3. Indemnification and Insurance.
5.3a. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the corporation or is or was serving at the request of the
corporation as a director, officer or employee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including penalties, fines,
judgments, attorney's fees, amounts paid or to be paid in settlement and excise
taxes or penalties imposed on fiduciaries with respect to (i) employee benefit
plans, (ii) charitable organizations or (iii) similar matters) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that the corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person (other than pursuant to
subsection 5.3b of this Article EIGHTH) only if such proceeding (or part
thereof) was authorized by the Board of Directors of the corporation. The right
to indemnification conferred in this subsection 5.3a of Article EIGHTH shall be
a contract right and shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer, including
without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this subsection 5.3a of Article
EIGHTH or otherwise.
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5.3b. Right of Claimant to Bring Suit. If a claim which the corporation is
obligated to pay under subsection 5.3a of this Article EIGHTH is not paid in
full by the corporation within 60 days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
5.3c. Miscellaneous. The provisions of this Section 5.3 of Article EIGHTH
shall cover claims, actions, suits and proceedings, civil or criminal, whether
now pending or hereafter commenced, and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this Section 5.3 of Article EIGHTH should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
5.3d. Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 5.3 of Article EIGHTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
5.3e. Insurance. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
5.3f. Indemnification of Agents of the Corporation. The corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to be paid by the corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
agent of the corporation to the fullest extent of the provisions of this Section
5.3 of Article EIGHTH with respect to the indemnification and advancement of
expenses of directors, officers and employees of the corporation.
SECTION 6.
LIMITATION OF ACTIONS.
Every asserted right of action by or on behalf of the corporation or by or
on behalf of any stockholder against any past, present or future member of the
Board of Directors, or any committee thereof, or any officer or employee of the
corporation or any subsidiary thereof, arising out of or in connection with any
bonus, supplemental compensation, stock investment, stock option or other plan
or plans for the benefit of any employee, irrespective of the place where such
right of action may arise or be asserted and irrespective of the place of
residence of any such director, member, officer or employee, shall cease and be
barred upon the expiration of three years from the later of the following dates:
(a) the date of any alleged act or omission in respect of which such right of
action may be asserted to have arisen, or (b) the date upon which the
corporation shall have made generally available to its stockholders information
with respect to, as the case may be, the aggregate amount credited for a fiscal
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year to a bonus or supplemental compensation reserve, or the aggregate amount of
awards in a fiscal year of bonuses or supplemental compensation, or the
aggregate amount of stock optioned or made available for purchase during a
fiscal year, or the aggregate amount expended by the corporation during a fiscal
year in connection with any other plan for the benefit of such employees, to all
or any part of which such asserted right of action may relate; and every
asserted right of action by or on behalf of any employee, past, present or
future, or any spouse, child, or legal representative thereof, against the
corporation or any subsidiary thereof arising out of or in connection with any
such plan, irrespective of the place where such asserted right of action may
arise or be asserted, shall cease and be barred by the expiration of three years
from the date of the alleged act or omission in respect of which such right of
action shall be asserted to have arisen.
NINTH. The corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by the law of the State of Delaware, and all rights of
the stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which only
restates and integrates and does not further amend the provisions of the
Restated Certificate of Incorporation of this corporation as heretofore amended
or supplemented, there being no discrepancies between those provisions and the
provisions of this Restated Certificate of Incorporation, and it having been
duly adopted by the corporation's Board of Directors in accordance with Section
245 of the Delaware General Corporation Law, has been signed by its duly
authorized officer this 9th day of April, 1998.
FORD MOTOR COMPANY
By:/s/John M. Rintamaki
---------------------------
John M. Rintamaki
Secretary