EXHIBIT 3.1
DEERE & COMPANY
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
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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
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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 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
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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.
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
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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 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.
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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 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
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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.
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
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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.
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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
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.
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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.
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.
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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.
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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