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8-K - FORM 8-K - InterDigital, Inc. | w83075e8vk.htm |
EX-3.2 - EX-3.2 - InterDigital, Inc. | w83075exv3w2.htm |
EXHIBIT 3.1
INTERDIGITAL, INC.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
In compliance with the requirements of the Pennsylvania Business Corporation Law of 1988, as
amended, the Articles of Incorporation of INTERDIGITAL, INC. are as follows:
ARTICLE FIRST
The name of the Corporation is InterDigital, Inc.
ARTICLE SECOND
The location and post office address of its registered office is 781 Third Avenue, King of
Prussia, Pennsylvania 19406-1409, County of Montgomery.
ARTICLE THIRD
The Corporation is incorporated under the Business Corporation Law of the Commonwealth of
Pennsylvania for the purpose or purposes of engaging in or doing any lawful act concerning any or
all lawful business for which corporations may be incorporated under the Pennsylvania Business
Corporation Law, including but not limited to manufacturing, owning, using, leasing and dealing in
personal property of every class and description, and acquiring, owning, using and disposing of
real property of any nature whatsoever.
ARTICLE FOURTH
The term for which the Corporation is to exist is perpetual.
ARTICLE FIFTH
The aggregate number of shares of all classes of stock which the Corporation shall have
authority to issue is:
(i) 100,000,000 shares of Common Stock, $0.01 par value per share (Common Stock), and
(ii) 14,398,600 shares of Preferred Stock, $0.10 par value per share (Preferred Stock).
Any or all shares of each class and series, or any part thereof, may be certificated or
uncertificated as determined by the Board of Directors, except as may be otherwise expressly
provided in the terms of a particular class or series and except that shares represented by a
certificate that are issued and outstanding shall continue to be represented thereby until the
certificate is surrendered to the Corporation. In accordance with Section 1528(f) of the
Pennsylvania Business Corporation Law, or any successor provision, the rights and obligations of
the holders of shares represented by certificates and the rights and obligations of holders of
uncertificated shares of the same class and series shall, except as otherwise expressly provided by
law, be identical.
The voting rights, designations, preferences, qualifications, privileges, limitations,
options, conversion rights and other special rights (the Rights and Preferences) of the shares of
the respective classes of stock of the Corporation are and will be determined as follows:
A. Preferred Stock
The Board of Directors of the Corporation shall have full and complete authority, by
resolution from time to time, to establish one or more series and to issue shares of Preferred
Stock and to fix, determine and vary the Rights and Preferences of each series of Preferred Stock,
including, but not limited to, dividend rates and manner of payment, preferential amounts payable
upon voluntary or involuntary liquidation, voting rights, conversion rights, redemption prices,
terms and conditions and sinking fund and stock purchase prices, terms and conditions.
B. Series B Junior Participating Preferred Stock.
The series of Preferred Stock, $.10 par value per share, of the Corporation known as Series B
Junior Participating Preferred Stock shall have the following Rights and Preferences:
Section 1. Designation and Amount.
The shares of such series shall be designated as Series B Junior Participating Preferred
Stock and the number of shares constituting such series shall be 90,000. In this Article Fifth,
the Series B Junior Participating Preferred Stock is sometimes referred to as the Series B
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares of any other series
of Preferred Stock or any other shares of preferred stock of the Corporation ranking prior and
superior to the shares of Series B Preferred Stock with respect to dividends, each holder of one
one-thousandth (1/1000) of a share (a Unit) of Series B Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally available for that
purpose, (i) dividends payable in cash when and if declared by the Board of Directors of the
Corporation in respect of the Common Stock (each such date being a Dividend Payment Date)
commencing on the first Dividend Payment Date after the first issuance of such Unit of Series B
Preferred Stock, in an amount per Unit (rounded to the nearest cent) equal to, subject to the
provision for adjustment hereinafter set forth, the aggregate per share amount of all cash
dividends declared on shares of the Common Stock since the immediately preceding Dividend Payment
Date, or, with respect to the first Dividend Payment Date, since the first issuance of a Unit of
Series B Preferred Stock, and (ii) subject to the provision for adjustment hereinafter set forth,
distributions (payable in kind) on each Dividend Payment Date in an amount per Unit equal to the
aggregate per share amount of all noncash dividends or other distributions (other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock, by
reclassification or otherwise) declared on shares of common stock since the immediately preceding
Dividend Payment Date, or with respect to the first Dividend Payment Date, since the first issuance
of a Unit of Series B Preferred Stock. In the event that the Corporation shall at any time after
December 13, 1996 (the Rights Declaration Date), (i) declare any dividend on outstanding shares
of Common Stock payable in shares of common stock, (ii) subdivide outstanding shares of Common
Stock or (iii) combine outstanding shares of Common Stock into a smaller number of shares, then in
each such case the amount to which the holder of a Unit of Series B Preferred Stock was entitled
immediately prior to such event pursuant to the next preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be the number of shares of
Common Stock that are outstanding immediately after such event and the denominator of which shall
be the number of shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on Units of Series B Preferred
Stock as provided in paragraph (A) above immediately after it declares a dividend or distribution
on the shares of Common Stock (other than a dividend payable in shares of Common Stock).
Section 3. Voting Rights.
The holders of Units of Series B Preferred Stock shall have the following voting rights:
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(A) Subject to the provision for adjustment hereinafter set forth, each Unit of Series B
Preferred Stock shall entitle the holder thereof to one vote on all matters submitted to a vote of
the holders of Common Stock of the Corporation. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares, then in each such
case the number of votes per Unit to which holders of Units of Series B Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction
the numerator of which shall be the number of shares of Common Stock outstanding immediately after
such event and the denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of Units of Series B Preferred
Stock and the holders of shares of Common Stock shall vote together as one class on all matters
submitted to a vote of holders of Common Stock of the Corporation.
(C) Except as set forth herein, holders of Units of Series B Preferred Stock shall have no
special voting rights and their consents shall not be required (except to the extent they are
entitled to vote with holders of shares of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever any dividends or distributions payable, on Units of Series B Preferred Stock as
provided in Section 2 have not been paid in full, thereafter and until all such accrued and unpaid
dividends and distributions, whether or not declared, on outstanding Units of Series B Preferred
Stock shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or repurchase or
otherwise acquire for consideration, any shares of junior stock;
(ii) declare or pay dividends on or make any other distributions on any shares of parity
stock, except dividends paid ratably on Units of Series B Preferred Stock and shares of all such
parity stock on which dividends are payable or in arrears in proportion to the total amounts to
which the holders of such Units and all such shares are then entitled;
(iii) redeem or repurchase or otherwise acquire for consideration shares of any parity stock;
provided, however, that the Corporation may at any time redeem, repurchase or otherwise acquire
shares of any such parity stock in exchange for shares of any junior stock;
(iv) repurchase or otherwise acquire for consideration (other than shares of junior stock) any
Units of Series B Preferred Stock, except in accordance with a repurchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of such Units on the same
terms.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, repurchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares.
Any Units of Series B Preferred Stock purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All
such Units shall, upon their cancellation, become authorized but unissued Units of Preferred Stock
and may be reissued as part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set
forth herein.
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Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares of junior stock unless the
holders of Units of Series B Preferred Stock shall have received, subject to adjustment as
hereinafter provided in paragraph (B), the amount, per Unit, equal to the aggregate per share
amount to be distributed to holders of shares of common stock, or (ii) to the holders of shares of
parity stock, unless simultaneously therewith distributions are made ratably on Units of Series B
Preferred Stock and all other shares of such parity stock in proportion to the total amounts to
which the holders of Units of Series B Preferred Stock are entitled under clause (i) of this
sentence and to which the holders of shares of such parity stock are entitled, in each case upon
such liquidation, dissolution or winding up.
(B) In the event the Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock, (ii)
subdivide outstanding shares of Common Stock, or (iii) combine outstanding shares of Common Stock
into a smaller number of shares, then in each such case the aggregate amount to which holders of
Units of Series B Preferred Stock were entitled immediately prior to such event pursuant to clause
(i) of paragraph (A) of this Section 6 shall be adjusted by multiplying such amount by a fraction
the numerator of which shall be the number of shares of Common Stock that are outstanding
immediately after such event and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or converted into other stock or
securities, cash and/or any other property, then in any such case Units of Series B Preferred Stock
shall at the same time be similarly exchanged for or converted into an amount per Unit (subject to
the provision for adjustment hereinafter set forth) equal to the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is converted or exchanged. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any dividend on outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock, or
(iii) combine outstanding Common Stock into a smaller number of shares, then in each such case the
amount set forth in the immediately preceding sentence with respect to the exchange or conversion
of Units of Series B Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 8. Redemption.
The Units of Series B Preferred Stock shall not be redeemable.
Section 9. Ranking.
The Units of Series B Preferred Stock shall rank junior to all other series of the Preferred
Stock and to any other class of preferred stock that hereafter may be issued by the Corporation as
to the payment of dividends and the distribution of assets, unless the terms of any such series or
class shall provide otherwise.
Section 10. Amendment.
The Articles of Incorporation shall not hereafter be amended, either directly or indirectly,
or through merger or consolidation with another corporation in any manner that would alter or
change the powers, preferences or special rights of the Series B Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority or more of the outstanding
Units of Series B Preferred Stock, voting separately as a class.
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Section 11. Fractional Shares.
The Series B Preferred Stock may be issued in Units or other fractions of a share, which Units
or fractions shall entitle the holder, in proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to have the benefit of
all other rights of holders of Series B Preferred Stock.
Section 12. Certain Definitions.
As used herein with respect to the Series B Preferred Stock, the following terms shall have
the following meanings:
(A) The term Common Stock means the class of common stock designated as the Common Stock,
par value $.01 per share, of the Corporation at the date hereof or any other class of stock
resulting from successive changes or reclassification of the common stock.
(B) The term junior stock (i) as used in Section 4 means the common stock and any other
class or series of capital stock of the Corporation hereafter authorized or issued over which the
Series B Preferred Stock has preference or priority as to the payment of dividends and (ii) as used
in Section 6, shall mean the common stock and any other class or series of capital stock of the
Corporation over which the Series B Preferred Stock has preference or priority in the distribution
of assets on any liquidation, dissolution or winding up of the Corporation.
(C) The term parity stock (i) as used in Section 4, means any class or series of stock of
the Corporation hereafter authorized or issued ranking pari passu with the Series B Preferred Stock
as to dividends and (ii) as used in Section 6, shall mean any class or series of capital stock
ranking pari passu with the Series B Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up.
ARTICLE SIXTH
Shareholders cumulative voting rights for the election of directors are eliminated and
denied.
ARTICLE SEVENTH
(a) Commencing with the annual meeting of shareholders in 2011, Directors, other than any who
may be elected by the holders of any class or series of stock entitled to elect Directors
separately pursuant to the terms of Article Fifth hereof or any resolution or resolutions providing
for the issuance of such stock adopted by the Board of Directors, shall be elected annually for
terms expiring at the next succeeding annual meeting; provided, however, that any Director elected
by the shareholders prior to the 2011 annual meeting shall complete the three-year term to which
such Director has been elected. Directors elected at the 2008 annual meeting of shareholders shall
hold office until the 2011 annual meeting, Directors elected at the 2009 annual meeting of
shareholders shall hold office until the 2012 annual meeting, and Directors elected at the 2010
annual meeting of shareholders shall hold office until the 2013 annual meeting, in each case
holding office until successors are elected and qualified.
(b) Except as otherwise provided for or fixed by or pursuant to the provisions of Article
Fifth hereof relating to the rights of the holders of any class or series of stock entitled to
elect Directors separately, newly created directorships resulting from any increase in the number
of Directors and any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the Directors in the manner provided in
the By-laws of the Corporation. Any person elected as a Director in accordance with the preceding
sentence to fill a newly created directorship resulting from an increase in the number of Directors
shall hold office until the next annual meeting and until such Directors successor shall have been
elected and qualified, and any person elected as a Director in accordance with the preceding
sentence to fill a vacancy on the Board of Directors shall hold office for the remainder of the
full term of office of the Director whom he replaced and until his successor shall have been
elected and qualified. No decrease in the number of Directors constituting the Board of Directors
shall shorten the term of any incumbent Director.
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(c) Except for the rights of any class or series of stock entitled to elect Directors
separately, any Director may be removed from office, without assigning any cause, but only by the
affirmative vote of the holders of 80 percent of the combined voting power of the then outstanding
shares of stock entitled to vote generally in the election of Directors, voting together as a
single class.
(d) Notwithstanding anything contained in the Articles of Incorporation or By-laws to the
contrary, and subject to the rights of any class or series of stock entitled to elect Directors
separately, the affirmative vote of the holders of at least 80 percent or more of the combined
voting power of the then outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend or repeal this
Article Seventh or to adopt any provision inconsistent herewith.
ARTICLE EIGHTH
(a) The holders of all the shares outstanding and entitled to vote may, by a majority vote, in
the manner set forth in the By-laws, alter, amend or repeal the By-laws of the Corporation,
provided, however, that the affirmative vote of the holders of 80 percent or more of the combined
voting power of the then outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend or repeal Sections
3.1, 3.4, 3.11 or 8.1 of the By-laws of the Corporation, or to adopt any provision inconsistent
therewith.
(b) The Board of Directors, by a majority vote of the members thereof, may make, alter, amend
or repeal any provisions of the By-laws, in the manner set forth in the By-laws. The shareholders
shall have the right to change such action by a majority vote of the shareholders entitled to vote
thereon at any Annual Meeting duly convened after notice to the shareholders of such purpose,
provided, however, that the vote of the holders of at least 80 percent of the combined voting power
of all of the then outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class, shall be required to change such action with respect
to Sections 3.1, 3.4, 3.11 or 8.1.
(c) Notwithstanding anything contained in the Articles of Incorporation to the contrary, and
subject to the rights of any class or series of stock entitled to elect Directors separately, the
affirmative vote of the holders of at least 80 percent of the combined voting power of the then
outstanding shares of stock entitled to vote generally in the election of directors, voting
together as a single class, shall be required to alter, amend or repeal this Article Eighth or to
adopt any provision inconsistent herewith.
ARTICLE NINTH
The vote of shareholders of the Corporation required to approve any Business Combination shall
be as set forth in this Article Ninth. The term Business Combination shall have the meaning
ascribed to it in (a)(B) of this Article; each other capitalized term used in this Article shall
have the meaning ascribed to it in (c) of this Article.
(a) (A) In addition to any affirmative vote required by law or the Articles of Incorporation
or any resolution adopted pursuant to Article Fifth of the Articles of Incorporation, and except as
otherwise expressly provided in (b) of this Article Ninth, a Business Combination shall not be
consummated without the affirmative vote of the holders of at least 80 percent of the combined
voting power of the then outstanding shares of stock of all classes and series of the Corporation
entitled to vote generally in the election of Directors (Voting Stock), in each case voting
together as a single class (it being understood that for purposes of this Article Ninth, each share
of the Voting Stock shall have the number of votes granted to it pursuant to Article Fifth of the
Article of Incorporation). Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be specified, by law or by the Articles of
Incorporation or any resolution or resolutions adopted pursuant to Article Fifth of the Articles of
Incorporation or in any agreement with any national securities exchange or otherwise.
(B) The term Business Combination as used in this Article Ninth shall mean:
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(1) any merger or consolidation of the Corporation or any Subsidiary with (i) any
Interested Shareholder or (ii) any other corporation or entity (whether or not itself an
Interested Shareholder) which is, or after each merger or consolidation would be, an
Affiliate of an Interested Shareholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in
one transaction or a series of transactions) to or with any Interested Shareholder or
any Affiliate of any Interested Shareholder of all or a Substantial Part of the assets
of the Corporation or any Subsidiary; or
(3) the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the Corporation or any
Subsidiary to any Interested Shareholder or any Affiliate of any Interested Shareholder
in exchange for cash, securities or other property (or a combination thereof), other
than the issuance of securities upon the conversion of convertible securities of the
Corporation or any Subsidiary which were not acquired by such interested Shareholder (or
such Affiliate) from the Corporation or a Subsidiary; or
(4) the adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of an Interested Shareholder or any Affiliate of
any Interested Shareholder; or
(5) any reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the Corporation
with any of its Subsidiaries or any other transaction (whether or not with or into or
otherwise involving an interested Shareholder) which in any such case has the effect,
directly or indirectly, of increasing the proportionate share of the outstanding shares
of any class or series of stock or securities convertible into stock of the Corporation
or any Subsidiary which is directly or indirectly beneficially owned by any Interested
Shareholder or any Affiliate of any Interested Shareholder;
(b) The provisions of (a) of this Article Ninth shall not be applicable to any Business
Combination in respect of which all of the conditions specified in either of the following
paragraphs A and B are met, and such Business Combination shall require only such affirmative vote
as is required by law and any other provision of the Articles of Incorporation and any resolution
or resolutions of the Board of Directors adopted pursuant to Article Fifth of the Articles of
Incorporation.
(A) Such Business Combination shall have been approved by a majority of the Disinterested
Directors, or
(B) Each of the six conditions specified in the following clauses (1) through (6) shall have
been met:
(1) the aggregate amount of the cash and the Fair Market Value as of the date of
the consummation of the Business Combination (the Consummation Date) of any
consideration other than cash to be received by holders of Common Stock in such Business
Combination shall be at least equal to the higher of the following:
(i) (if applicable) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers fees) paid in order to acquire
any shares of Common Stock beneficially owned by the Interested Shareholder which
were acquired beneficially by such Interested Shareholder (x) within the two-year
period immediately prior to the Announcement Date or (y) in the transaction in
which it became an Interested Shareholder, whichever is higher; or
(ii) the Fair Market Value per share of Common Stock on the Announcement Date
or on the date on which the Interested Shareholder became an Interested
Shareholder (the Determination Date), whichever is higher; and
(2) the aggregate amount of the cash and the Fair Market Value as of the
Consummation Date of any consideration other than cash to be received per share by
holders of shares of any other class or
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series of Voting Stock shall be at least equal to the highest of the following (it
being intended that the requirements of this clause (B)(2) shall be required to be met
with respect to every class and series of such outstanding Voting Stock, whether or not
the Interested Shareholder beneficially owns any shares of a particular class or series
of Voting Stock):
(i) (if applicable) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers fees) paid in order to acquire
any shares of such class or series of Voting Stock beneficially owned by the
Interested Shareholder which were acquired beneficially by such Interested
Shareholder (x) within the two-year period immediately prior to the Announcement
Date or (y) in the transaction in which it became an interested Shareholder,
whichever is higher;
(ii) (if applicable) the highest preferential amount per share to which the
holders of shares of such class or series of Voting Stock are entitled in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation; and
(iii) the Fair Market Value per share of such class or series of Voting Stock
on the Announcement Date or the Determination Date, whichever is higher; and
(3) the consideration to be received by holders of a particular class or series of
outstanding Voting Stock (including Common Stock) shall be in cash or in the same form
as was previously paid in order to acquire beneficially shares of such class or series
of Voting Stock that are beneficially owned by the Interested Shareholder and if the
Interested Shareholder beneficially owns shares of any class or series of Voting Stock
that were acquired with varying forms of consideration, the form of consideration to be
received by holders of such class or series of Voting Stock shall be either cash or the
form used to acquire beneficially the largest number of shares of such class or series
of Voting Stock beneficially acquired by it prior to the Announcement Date; and
(4) after such Interested Shareholder has become an Interested Shareholder and
prior to the consummation of such Business Combination:
(i) except as approved by a majority of the Disinterested Directors, there
shall have been no failure to declare and pay at the regular dates therefor the
full amount of any dividends (whether or not cumulative) payable on any class or
series of stock having preference over the Common Stock as to dividends or upon
liquidation;
(ii) there shall have been (x) no reduction in the annual rate of dividends
paid on the Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the Disinterested Directors,
and (y) an increase in such annual rate of dividends (as necessary to prevent any
such reduction) in the event of any reclassification (including any reverse stock
split) recapitalization, reorganization or any similar transaction which has the
effect of reducing the number of outstanding shares of the Common Stock, unless
the failure so to increase such annual rate was approved by a majority of the
Disinterested Directors; and
(iii) such Interested Shareholder shall not have become the beneficial owner
of any additional shares of Voting Stock except as part of the transaction in
which it became an Interested Shareholder; and
(5) after such Interested Shareholder has become an Interested Shareholder, such
Interested Shareholder shall not have received the benefit, directly or indirectly
(except proportionately as a shareholder), of any loans, advances, guarantees, pledges
or other financial assistance or tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection with such Business Combination
or otherwise; and
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(6) a proxy or information statement describing the proposed Business Combination
and complying with the requirements of the Securities Exchange Act of 1934 and the rules
and regulations thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to public shareholders of the Corporation at least 30 days
prior to the consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or subsequent
provisions).
(c) For the purposes of this Article Ninth:
(A) A person shall mean any individual, firm, corporation or other entity.
(B) Interested Shareholder shall mean any person (other than the Corporation or any
Subsidiary) who or which:
(1) is the beneficial owner, directly or indirectly, of more than 20 percent of the
combined voting power of the then outstanding shares of Voting Stock; or
(2) is an Affiliate of the Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial owner, directly or
indirectly, of 20 percent or more of the combined voting power
of the then outstanding shares of Voting Stock; or
(3)
is an assignee or has otherwise succeeded to the beneficial ownership of any shares of Voting Stock that were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested Shareholder, if such
assignment or succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the Securities Act of
1933.
(C) A person shall be a beneficial owner of any Voting Stock:
(1) which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; or
(2) which such person or any of its Affiliates or Associates has (a) the right to
acquire (whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (b) the right
to vote or direct the vote pursuant to any agreement, arrangement or understanding; or
(3) which are beneficially owned, directly or indirectly, by any other person with
which such person or any of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
(D) For the purposes of determining whether a person is an Interested Shareholder pursuant to
(c)(B) of this Article Ninth, the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of (c)(C) of this Article but shall not include any
other shares of Voting Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(E) Affiliate and Associate shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on May 25, 1984.
(F) Subsidiary means any corporation of which more than 50 percent of the combined voting
power of the then outstanding shares of stock entitled to vote generally in the election of
directors is owned, directly or indirectly, by the Corporation or by a Subsidiary or by the
Corporation and one or more Subsidiaries; provided,
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however, that for the purposes of the definition of Interested Shareholder set forth in (c)(B)
of this Article Ninth, the term Subsidiary shall mean only a corporation of which a majority of
the combined voting power of the then outstanding shares of stock entitled to vote generally in the
election of directors is owned, directly or indirectly, by the Corporation.
(G) Disinterested Director means any member of the Board of Directors of the Corporation who
is unaffiliated with, and not a nominee of, the Interested Shareholder and was a member of the
Board prior to the time that the Interested Shareholder became an Interested Shareholder, and any
successor of a Disinterested Director who is unaffiliated with, and not a nominee of, the
Interested Shareholder and who is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board of Directors.
(H) Fair Market Value means: (1) in the case of stock, the highest closing sale price during
the 30-day period immediately preceding the date in question of a share of such stock on the
principal United States securities exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on any such exchange, the highest
closing sales price or bid quotation with respect to a share of such stock during the 30-day period
preceding the date in question as quoted by the National Association of Securities Dealers, Inc.
Automated Quotations Systems or any system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as determined by a majority of
the Disinterested Directors in good faith; and (2) in the case of stock of any class or series
which is not traded on any United States registered securities exchange nor in the over-the-counter
market or in the case of property other than cash or stock, the fair market value of such property
on the date in question as determined by a majority of the Disinterested Directors in good faith.
(I) In the event of any Business Combination in which the Corporation survives, the phrase
any consideration other than cash to be received as used in (b)(B)(1) and (2) of this Article
Ninth shall include the shares of the Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
(J) Announcement Date means the date of first public announcement of the proposed Business
Combination
(K) Determination Date means the date on which the Interested Shareholder became an
Interested Shareholder.
(L) Substantial Part means more than 50 percent of the book value of the total assets of the
entity in question, as of the end of its most recent fiscal year ending period to the Consummation
Date.
(d) A majority of the Disinterested Directors of the Corporation shall have the right and
power to determine, on the basis of information known to them after reasonable inquiry, all facts
necessary to determine compliance with this Article Ninth, including, without limitation (A)
whether a person is an Interested Shareholder, (B) the number of shares of Voting Stock
beneficially owned by any person, (C) whether a person is an Affiliate or Associate of another
person and (D) whether the requirements of (b) of this Article Ninth have been met with respect to
any Business Combination. The good faith determination of a majority of the Disinterested
Directors on such matters shall be conclusive and binding for all purposes of this Article Ninth.
(e) Nothing contained in this Article Ninth shall be construed to relieve any Interested
Shareholder from any fiduciary obligation imposed by law.
(f) Notwithstanding anything contained in the Articles of Incorporation to the contrary, the
affirmative vote of the holders of at least 80 percent of the voting power of the Voting Stock,
voting together as a single class, shall be required to alter, amend, or repeal this Article Ninth
or to adopt any provision inconsistent herewith.
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ARTICLE TENTH
Subject to the rights of any class or series of stock entitled to elect Directors separately,
at all meetings of shareholders for the election of Directors at which a quorum is present, each
Director shall be elected by the vote of the majority of the votes cast by the shareholders
represented in person or by proxy and entitled to vote in the election of the Director; provided,
that if the election is a contested election (as such term shall be defined in the By-laws), the
Directors, not exceeding the authorized number of Directors as fixed by the Board of Directors in
accordance with the By-laws, shall be elected by a plurality vote of the shares represented in
person or by proxy at any such meeting and entitled to vote in the election of the Directors. For
purposes of this Article Tenth, a majority of the votes cast means that the number of votes cast
for a Director must exceed the number of votes cast against that Director.
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