EXHIBIT 3.1
DEERE & COMPANY
CERTIFICATE OF INCORPORATION
RESTATED CERTIFICATE OF INCORPORATION
As Adopted February 27, 1985
(As Amended February 25, 1987)
(As Amended November 17, 1995)
(The original certificate was filed with the Secretary of State of Delaware on
April 25, 1958, under the original name of John Deere & Company)
FIRST. The name of the corporation is Deere & Company.
SECOND. The registered office of the corporation in the State of
Delaware is located at 1209 Orange Street in the City of Wilmington, County
of New Castle. The name of the registered agent of the corporation is The
Corporation Trust Company.
THIRD. The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH. The stock that the corporation shall have authority to issue
is 609,000,000 shares, of which 600,000,000 shares shall be common stock, $1
par value (common stock), and 9,000,000 shares shall be preferred stock, $1
par value (preferred stock), issuable in series.
1. COMMON STOCK PROVISIONS
1.1 DIVIDEND RIGHTS. Subject to provisions of law and the
preferences of the preferred stock, the holders of the common stock shall be
entitled to receive dividends at such time and in such amounts as may be
determined by the board of directors.
1.2 VOTING RIGHTS. Except as provided in the final two paragraphs of
section 2.6, the holders of the common stock shall have one vote for each
share on each matter submitted to a vote of the stockholders of the
corporation. Except as otherwise provided by law, or by the provisions of the
certificate of incorporation or any amendment thereto, or by resolutions of
the board of directors providing for the issue of any series of preferred
stock, the holders of the common stock shall have sole voting power.
1.3 LIQUIDATION RIGHTS. In the event of any liquidation, dissolution
or winding up of the corporation, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
corporation and the preferential amounts to which the holders of the
preferred stock shall be entitled, the holders of the common stock shall be
entitled to share ratably in the remaining assets of the corporation.
2. PREFERRED STOCK PROVISIONS
2.1 AUTHORITY OF THE BOARD OF DIRECTORS TO ISSUE IN SERIES. The
preferred stock may be issued from time to time in one or more series.
Subject to the provisions of the certificate of incorporation or any
amendment thereto, authority is expressly granted to the board of directors
to authorize the issue of one or more series of preferred stock, and to fix
by resolutions providing for the issue of each such series the voting powers,
designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations and restrictions thereof
(sometimes referred to as powers, preferences and rights), to the full extent
now or hereafter permitted by law, including but not limited to the following:
2.11 The number of shares of such series (which may
subsequently be increased by resolutions of the board of directors) and the
distinctive designation thereof;
2.12 The dividend rate of such series and any limitations,
restrictions or conditions on the payment of such dividends;
2.13 The price or prices at which, and the terms and
conditions on which, the shares of such series may be redeemed;
2.14 The amounts which the holders of the shares of such
series are entitled to receive upon any liquidation, dissolution or winding
up of the corporation;
2.15 The terms of any purchase, retirement or sinking fund
to be provided for the shares of such series;
2.16 The terms, if any, upon which the shares of such series
shall be convertible into or exchangeable for shares of any other series,
class or classes, or other securities, and the terms and conditions of such
conversion or exchange;
2.17 The voting powers, if any, of such series in addition
to the voting powers provided in this article.
The preferred stock of each series shall rank on a parity
with the preferred stock of every other series in priority of payment of
dividends and in the distribution of assets in the event of any liquidation,
dissolution or winding up of the corporation, whether voluntary or
involuntary, to the extent of the preference to which the preferred stock of
the respective series shall be entitled under the provisions of the
certificate of incorporation or any amendment thereto or the resolutions of
the board of directors providing for the issue of such series. All shares of
any one series of preferred stock shall be identical except as to the dates
of issue and the dates from which dividends on shares of the series issued on
different dates shall accumulate (if cumulative).
2.2 DEFINITIONS
2.21 The term "arrearages," whenever used in connection with
dividends on any share of preferred stock, shall refer to the condition that
exists as to dividends, to the extent that they are cumulative (either
unconditionally, or conditionally to the extent that
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the conditions have been fulfilled), on such share which shall not have been
paid or declared and set apart for payment to the date or for the period
indicated; but the term shall not refer to the condition that exists as to
dividends, to the extent that they are non-cumulative, on such share which
shall not have been paid or declared and set apart for payment.
2.22 The term "stock junior to the preferred stock,"
whenever used with reference to the preferred stock, shall mean the common
stock and other stock of the corporation over which the preferred stock has
preference or priority in the payment of dividends or in the distribution of
assets on any dissolution, liquidation or winding up of the corporation.
2.23 The term "subsidiary" shall mean any corporation,
association or business trust, the majority of whose outstanding shares (at
the time of determination) having voting power for the election of directors
or trustees, either at all times or only so long as no senior class of shares
has such voting power because of arrearages in dividends or because of the
existence of some default, is owned directly or indirectly by the corporation.
2.3 DIVIDEND RIGHTS
2.31 The holders of the preferred stock of each series shall
be entitled to receive, when and as declared by the board of directors,
preferential dividends in cash payable at such rate, from such date, and on
such quarterly dividend payment dates and, if cumulative, cumulative from
such date or dates, as may be fixed by the resolutions of the board of
directors providing for the issue of such series. The holders of the
preferred stock shall not be entitled to receive any dividends thereon other
than those specifically provided for by the certificate of incorporation or
any amendment thereto, or such resolutions of the board of directors, nor
shall any arrearages in dividends on the preferred stock bear any interest.
2.32 So long as any of the preferred stock is outstanding,
no dividends (other than dividends payable in stock junior to the preferred
stock or in options, rights or warrants to purchase or acquire such stock
junior to the preferred and cash in lieu of fractional shares in connection
with any such dividend) shall be paid or declared in cash or otherwise, nor
shall any other distribution be made, on any stock junior to the preferred
stock, unless
2.321 there shall be no arrearages in dividends on
preferred stock for any past quarterly dividend period, and dividends in full
for the current quarterly dividend period shall have been paid or declared on
all preferred stock (cumulative and non-cumulative); and
2.322 the corporation shall have paid or set aside
all amounts, if any, then or theretofore required to be paid or set aside for
all sinking funds, if any, for the preferred stock of any series; and
2.323 the corporation shall not be default on any of
its obligations to redeem any of the preferred stock.
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2.33 So long as any of the preferred stock is outstanding,
no shares of any stock junior to the preferred stock shall be purchased,
redeemed or otherwise acquired by the corporation or by any subsidiary except
in connection with a reclassification or exchange of any stock junior to the
preferred stock through the issuance of other stock junior to the preferred
stock (or of options, rights or warrants to purchase or acquire such stock
junior to the preferred), or the purchase, redemption or other acquisition of
any stock junior to the preferred stock with proceeds of a reasonably
contemporaneous sale of other stock junior to the preferred stock (or of
options, rights or warrants to purchase or acquire such stock junior to the
preferred), nor shall any funds be set aside or made available for any
sinking fund for the purchase or redemption of any stock junior to the
preferred stock, unless
2.331 there shall be no arrearages in dividends on
preferred stock for any past quarterly dividend period; and
2.332 the corporation shall have paid or set aside
all amounts, if any, then or theretofore required to be paid or set aside for
all sinking funds, if any, for the preferred stock of any series; and
2.333 the corporation shall not be in default on any
of its obligations to redeem any of the preferred stock.
2.34 Subject to the foregoing provisions and not otherwise,
such dividends (payable in cash, property or stock junior to the preferred
stock or in options, rights or warrants to purchase or acquire such stock
junior to the preferred) as may be determined by the board of directors may
be declared and paid on the shares of any stock junior to the preferred stock
from time to time, and in the event of the declaration and payment of any
such dividends, the holders of such stock junior to the preferred shall be
entitled, to the exclusion of holders of the preferred stock, to share
ratably therein according to their respective interests.
2.35 Dividends in full shall not be declared or paid or set
apart for payment on any series of preferred stock, unless there shall be no
arrearages in dividends on preferred stock for any past quarterly dividend
period and dividends in full for the current quarterly dividend period shall
have been paid or declared on all preferred stock to the extent that such
dividends are cumulative, and any dividends paid or declared when dividends
are not so paid or declared in full shall be shared ratably by the holders of
all series of preferred stock in proportion to such respective arrearages and
unpaid and undeclared current quarterly cumulative dividends.
2.4 LIQUIDATION RIGHTS
2.41 In the event of any liquidation, dissolution or winding
up of the corporation, whether voluntary or involuntary, the holders of
preferred stock of each series shall be entitled to receive the full
preferential amount fixed by the certificate of incorporation or any
amendment thereto, or by the resolutions of the board of directors providing
for the issue of such series, including any arrearages in dividends thereon
to the date fixed for the payment in liquidation, before any distribution
shall be made to the
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holders of any stock junior to the preferred stock. After such payment in
full to the holders of the preferred stock, the remaining assets of the
corporation shall then be distributable exclusively among the holders of any
stock junior to the preferred stock outstanding, according to their
respective interests.
2.42 If the assets of the corporation are insufficient to
permit the payment of the full preferential amounts payable to the holders of
the preferred stock of the respective series in the event of a liquidation,
dissolution or winding up, then the assets available for distribution to
holders of the preferred stock shall be distributed ratably to such holders
in proportion to the full preferential amounts payable on the respective
shares.
2.43 A consolidation or merger of the corporation with or
into one or more other corporations or a sale of all or substantially all of
the assets of the corporation shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
2.5 REDEMPTION
2.51 The provisions of this section 2.5 shall apply only to
those series of preferred stock to which such provisions are expressly made
applicable by resolutions of the board of directors providing for the issue
of such series.
2.52 At the option of the board of directors, the
corporation may redeem the whole or any part of the preferred stock, or of
any series thereof, at any time or from time to time within the period during
which such stock is by its terms redeemable at the option of the board of
directors, by paying such redemption price thereof as shall have been fixed
by the resolutions of the board of directors providing for the issue of the
preferred stock to be redeemed, including an amount in the case of each share
so to be redeemed equal to any arrearages in dividends thereon to the date
fixed for redemption (the total amount so to be paid being hereinafter called
the "redemption price").
2.53 Unless expressly provided otherwise in the resolutions
of the board of directors providing for the issue of the preferred stock to
be redeemed, (i) notice of each such redemption shall be mailed not less than
thirty days nor more than ninety days prior to the date fixed for redemption
to each holder of record of shares of the preferred stock to be redeemed, at
his address as the same may appear on the books of the corporation, and (ii)
in case of a redemption of a part only of any series of the preferred stock,
the shares of such series to be redeemed shall be selected pro rata or by lot
or in such other manner as the board of directors may determine. The board of
directors shall have full power and authority, subject to the limitations and
provisions contained in the certificate of incorporation or any amendment
thereto or in the resolutions of the board of directors providing for the
issue of the preferred stock to be redeemed, to prescribe the manner in which
and the terms and conditions upon which the preferred stock may be redeemed
from time to time.
2.54 If any such notice of redemption shall have been duly
given, then on and after the date fixed in such notice of redemption (unless
default shall be made by the corporation in the payment or deposit of the
redemption price pursuant to such notice) all arrearages in dividends, if
any, on the shares of preferred stock so called for redemption shall cease to
accumulate, and on such date all rights of the holders of the preferred stock
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so called for redemption shall cease and terminate except the right to
receive the redemption price upon surrender of their certificates for
redemption and such rights, if any, of conversion or exchange as may exist
with respect to such preferred stock under the resolutions of the board of
directors providing for the issue of such preferred stock.
2.55 If, before the redemption date specified in any notice
of the redemption of any preferred stock, the corporation shall deposit the
redemption price with a bank or trust company in Chicago, Illinois or New
York, New York having a capital and surplus of at least $5,000,000 according
to its last published statement of condition, in trust for payment on the
redemption date to the holders of the preferred stock to be redeemed, from
and after the date of such deposit all rights of the holders of the preferred
stock so called for redemption shall cease and terminate except the right to
receive the redemption price upon surrender of their certificates for
redemption and such rights, if any, of conversion or exchange as may exist
with respect to such preferred stock under the resolutions of the board of
directors providing for the issue of such preferred stock. Any funds so
deposited which are not required for such redemption because of the exercise
of any such right of conversion or exchange subsequent to the date of such
deposit shall be returned to the corporation forthwith. The corporation shall
be entitled to receive from the depositary, from time to time, the interest,
if any allowed on such funds deposited with it, and the holders of the shares
so redeemed shall have no claim to any interest. Any funds so deposited and
remaining unclaimed at the end of six years from the redemption date shall,
if thereafter requested by the board of directors, be repaid to the
corporation.
2.56 Shares of preferred stock of any series may also be
subject to redemption through operation of any sinking fund created therefor,
in the manner hereinabove prescribed under section 2.5, at the redemption
prices and under the terms and provisions contained in the resolutions of the
board of directors providing for the issue of such series.
2.57 The corporation shall not be required to register a
transfer of any share of preferred stock (i) within fifteen days preceding a
selection for redemption of shares of the series of preferred stock of which
such share is a part or (ii) which has been selected for redemption.
2.58 During the continuance of any arrearages in dividends
for any past quarterly dividend period or a failure in fulfillment of any
sinking fund or redemption obligation on any series of preferred stock, the
corporation shall not purchase or redeem any shares of preferred stock or of
any other stock ranking on a parity with the preferred stock as to dividends
or upon liquidation, nor permit any subsidiary to do so, without the consent
given in writing or affirmative vote given in person or by proxy at a meeting
called for the purpose, by the holders of at least 66-2/3 percent of all the
shares of preferred stock then outstanding; provided that (i) to meet the
requirements of any purchase, retirement or sinking fund provisions with
respect to any series, the corporation may use shares of such series acquired
by it prior to such arrearages in dividends or failure of payment and then
held by it as treasury stock, valued at redemption price, and (ii) the
corporation may complete the purchase or redemption of shares of preferred
stock for which a purchase contract was entered into for any purchase,
retirement or sinking fund purposes, or the notice of redemption of which was
initially mailed, prior to such arrearages in dividends or failure of payment.
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2.59 If any obligation to retire shares of preferred stock
is not paid in full on all series as to which such obligation exists, the
number of shares of each such series to be retired pursuant to any such
obligation shall be in proportion to the respective amounts which would be
payable if all amounts payable for the retirement of all such series were
discharged in full.
2.6 RESTRICTIONS ON CERTAIN ACTION AFFECTING PREFERRED STOCK. The
corporation will not, without the consent given in writing or affirmative
vote given in person or by proxy at a meeting called for the purpose,
2.61 by the holders of at least 66-2/3 percent of all the
shares of preferred stock then outstanding, (i) create any other class or
classes of stock ranking prior to the preferred stock, either as to dividends
or upon liquidation, or create any stock or other security convertible into
or exchangeable for or evidencing the right to purchase any such stock so
ranking prior to the preferred stock, or increase the authorized number of
shares of any such other class of stock or other security, (ii) amend, alter
or repeal any of the provisions of the certificate of incorporation or any
amendment thereto so as to affect adversely the powers, preferences or rights
of the holders of the preferred stock; or
2.62 by the holders of at least 66-2/3 percent of the shares
of any series of preferred stock then outstanding, amend, alter or repeal any
of the provisions of the certificate of incorporation or any amendment
thereto or of the resolutions of the board of directors providing for the
issue of such series so as to affect adversely the powers, preferences or
rights of the holders of the preferred stock of such series; or
2.63 by the holders of at least a majority of all the shares
of preferred stock then outstanding, (i) increase the authorized amount of
the preferred stock, or (ii) create any other class or classes of stock
ranking on a parity with the preferred stock, either as to dividends of upon
liquidation, or create any stock or other security convertible into or
exchangeable for or evidencing the right to purchase any such stock ranking
on a parity with the preferred stock, or increase the authorized number of
shares of any such other class of stock or other security.
If an amendment described in clause (ii) of subsection 2.61
would in no way affect adversely the powers, preferences or rights of the
holders of any stock of the corporation other than the preferred stock, such
amendment may be made effective by the adoption and filing of an appropriate
amendment to the certificate of incorporation of the corporation without
obtaining the consent or vote of the holders of any stock of the corporation
other than the preferred stock.
If an amendment described in subsection 2.62 would in no way
affect adversely the powers, preferences or rights of the holders of any
stock of the corporation other than the preferred stock of such series, such
amendment may be made effective by the adoption and filing of an appropriate
amendment to the certificate of incorporation of the corporation without
obtaining the consent or vote of the holders of any stock of the corporation
other than the preferred stock of such series.
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2.7 ELECTION OF DIRECTORS BY HOLDERS OF CERTAIN PREFERRED STOCK IN
EVENT OF NON-DECLARATION OF DIVIDENDS.
2.71 The provisions under section 2.7 shall apply only to
those series of preferred stock (applicable preferred stock) to which such
provisions are expressly made applicable by resolutions of the board of
directors providing for the issue of such series.
2.72 Whenever declarations of dividends (including
non-cumulative dividends) on any share of any series of applicable preferred
stock shall be omitted in an aggregate amount equal to six quarterly
dividends on such share the holders of the applicable preferred stock shall
have the exclusive and special right (in addition to any other voting
rights), voting separately as a class and without regard to series, to elect
at an annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the applicable preferred
stock called as hereinafter provided, two members of the board of directors,
until four consecutive quarterly dividends shall have been paid on or
declared and set apart for payment on such share, if the share is
non-cumulative, or until all arrearages in dividends and dividends in full
for the current quarterly period shall have been paid or declared and set
apart for payment on the share, if the share is cumulative, whereupon all
voting rights as a class provided for under section 2.7 shall be divested
from the applicable preferred stock (subject, however, to being at any time
or from time to time similarly revived if declarations of dividends for
subsequent quarterly periods shall be omitted).
2.73 At any time after the holders of the applicable
preferred stock shall have thus become entitled to elect two members of the
board of directors, the secretary of the corporation may, and upon written
request of holders of record of at least 10 percent of the shares of the
applicable preferred stock then outstanding addressed to him at the principal
office of the corporation shall, call a special meeting of the holders of the
applicable preferred stock for the purpose of electing such directors, to be
held at the place of annual meetings of shareholders of the corporation as
soon as practicable after the receipt of such request upon the notice
provided by law and the bylaws of the corporation for the holding of special
meetings of shareholders; provided, however, that the secretary need not call
any such special meeting if the next annual meeting of stockholders is to
convene within ninety days after the receipt of such request. If such special
meeting shall not be called by the secretary within thirty days after receipt
of such request (not including, however, a request falling within the proviso
to the foregoing sentence), then the holders of record of at least 10 percent
of the shares of the applicable preferred stock then outstanding may
designate in writing one of their number to call such a meeting at the place
and upon the notice above provided, and any person so designated for that
purpose shall have access to the stock records of the corporation for such
purpose.
2.74 At any meeting at which the holders of the applicable
preferred stock shall be entitled to vote for the election of such two
directors as above provided, the holders of 33-1/3 percent of the applicable
preferred stock then outstanding present in person or by proxy shall
constitute a quorum for the election of such two directors and for no other
purpose, and the vote of the holders of a majority of the applicable
preferred stock so present at any such meeting at which there shall be such a
quorum shall be sufficient to elect two directors. The election of such
directors or one such director shall
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automatically increase the number of members of the board of directors by the
number of directors so elected. The classes in which such directors serve, as
provided by article sixth, may be designated by the holders of the applicable
preferred stock, unless such classes have been previously designated by the
board of directors. The persons so elected as directors by the holders of the
applicable preferred stock shall hold office until their successors shall
have been elected by such holders or until the right of the holders of the
applicable preferred stock to vote as a class in the election of directors
shall be divested as provided in subsection 2.72. Upon divestment of the
right to elect directors as above provided, any directors so elected by the
holders of the applicable preferred stock shall forthwith cease to be
directors of the corporation, and the number of directorships shall
automatically be reduced accordingly. If a vacancy occurs in a directorship
elected by the holders of the applicable preferred stock voting as a class, a
successor may be appointed by the remaining director so elected by the
holders of the applicable preferred stock.
2.75 At any such meeting or any adjournment thereof, (i) the
absence of a quorum of the holders of the applicable preferred stock shall
not prevent the election of the directors other than those to be elected by
the holders of the applicable preferred stock voting as a class, and the
absence of a quorum of holders of the shares entitled to vote for directors
other than those to be elected by the holders of the applicable preferred
stock voting as a class, shall not prevent the election of the directors to
be elected by the holders of the applicable preferred stock voting as a
class, and (ii) in the absence of a quorum of the holders of the applicable
preferred stock, the holders of a majority of the applicable preferred stock
present in person or by proxy shall have power to adjourn from time to time
the meeting for the election of the directors which they are entitled to
elect voting as a class, without notice other than announcement at the
meeting, until a quorum shall be present, and in the absence of a quorum of
the holders of the shares entitled to vote for directors other than those
elected by the holders of the applicable preferred stock voting as a class,
the holders of a majority of such stock present in person or by proxy shall
have power to adjourn from time to time the meeting for the election of the
directors which they are entitled to elect, without notice other than
announcement at the meeting, until a quorum shall be present.
3. OTHER PROVISIONS
3.1 AUTHORITY FOR ISSUANCE OF SHARES. The board of directors shall
have authority to authorize the issuance, from time to time without any vote
or other action by the stockholders, of any or all shares of stock of the
corporation of any class at any time authorized, and any securities
convertible into or exchangeable for any such shares, and any options, rights
or warrants to purchase or acquire any such shares, in each case to such
persons and on such terms (including as a dividend or distribution on or with
respect to, or in connection with a split or combination of, the outstanding
shares of stock of the same or any other class) as the board of directors
from time to time in its discretion lawfully may determine; provided,
however, that the consideration for the issuance of shares of stock of the
corporation having par value (unless issued as such a dividend or
distribution or in connection with such a split or combination) shall not be
less than such par value. Shares so issued, shall be full paid stock, and the
holders of such stock shall not be liable to any further call or assessments
thereon.
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3.2 ABANDONMENT OF DIVIDENDS AND DISTRIBUTIONS. Anything herein
contained to the contrary notwithstanding, any and all right, title,
interest, and claim in or to any dividends declared, or other distributions
made, by the corporation, whether in cash, stock or otherwise, which are
unclaimed by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and be deemed to be
extinguished and abandoned; and such unclaimed dividends or other
distributions in the possession of the corporation, its transfer agents or
other agents or depositaries, shall at such time become the absolute property
of the corporation, free and clear of any and all claims of any persons
whatsoever.
FIFTH. The board of directors shall have authority to adopt, make,
alter and repeal the bylaws of the corporation.
SIXTH. The business and affairs of the corporation shall be managed
by or under the direction of a board of directors consisting of not less than
three nor more than eighteen directors. The exact number shall be determined
from time to time by resolution adopted by the affirmative vote of a majority
of the directors in office at the time of adoption of such resolution.
The directors shall be divided into three classes, each class
consisting, as nearly as may be possible, of one-third of the total number of
directors constituting the entire board of directors. At each annual meeting
of stockholders, successors to the class of directors whose term expires at
that annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes by the board of directors so as to maintain the number of directors
in each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of
that class. In no case will a decrease in the number of directors shorten the
term of any incumbent director even though such decrease may result in an
inequality of the classes until the expiration of such term. A director shall
hold office until the annual meeting for the year in which his term expires
and until his successor shall be elected and shall qualify, subject, however,
to prior death, resignation, retirement or removal from office. No director
may be removed except for cause. Any vacancy on the board of directors that
results from an increase in the number of directors may be filled by a
majority of the board of directors then in office, and any other vacancy
occurring on the board of directors may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same remaining term as
that of his predecessor.
Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of preferred stock issued by the corporation
shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term
of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this certificate of incorporation
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this article sixth unless expressly provided by such
terms.
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SEVENTH. Each person who is or was a director or officer of the
corporation, and each person who serves or served at the request of the
corporation as a director or officer (or equivalent) of another enterprise,
shall be indemnified by the corporation to the fullest extent authorized by
the General Corporation Law of Delaware as it may be in effect from time to
time, except as to any action, suit or proceeding brought by or on behalf of
a director or officer without prior approval of the board of directors.
EIGHTH. No stockholder action required to be taken or which may be
taken at any annual or special meeting of stockholders of the corporation may
be taken without a meeting, and the power of stockholders to consent in
writing without a meeting to the taking of any action is specifically denied.
NINTH. No director shall be personally liable to the corporation or
its stockholders for monetary damages for any breach of fiduciary duty by
such director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for
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) pursuant to
Section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article NINTH shall apply to or have any
effect on the liability or alleged liability of any director of the
corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
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