EXHIBIT
3.1
RESTATED
CERTIFICATE OF
INCORPORATION
OF
ACCO
BRANDS CORPORATION
ARTICLE
I
The name
of the Company is ACCO Brands Corporation.
ARTICLE
II
The
Company's registered office in the State of Delaware is located at 2711
Centerville Road, Suite 400, City of Wilmington 19808, County of New
Castle; and the name of the registered agent of the corporation in the State of
Delaware at such address is Corporation Service Company.
ARTICLE
III
The
nature of the business, or objects or purposes to be transacted, promoted or
carried on, are: To engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation
Law.
ARTICLE
IV
The total
number of shares of all classes of stock which the Company shall have the
authority to issue is 225,000,000, of which (i) 200,000,000 shares of the
par value of $.01 each are to be of a class designated Common Stock (the "Common
Stock") and (ii) 25,000,000 shares par value $.01 per share are to be of a
class designated Preferred Stock (the "Preferred Stock").
In this
Article IV, any reference to a section or paragraph, without further
attribution, within a provision relating to a particular class of stock is
intended to refer solely to the specified section or paragraph of the other
provisions relating to the same class of stock.
Common
Stock
The
Common Stock shall have the following voting powers, designations, preferences
and relative, participating, optional and other special rights, and
qualifications, limitations or restrictions thereof:
1. Dividends. Whenever
the full dividends upon any outstanding Preferred Stock for all past dividend
periods shall have been paid and the full dividends thereon for the then current
respective dividend periods shall have been paid, or declared and a sum
sufficient for the respective payments thereof set apart, the holders of shares
of the Common Stock shall be entitled to receive such dividends and
distributions in equal amounts per share, payable in cash or otherwise, as may
be declared thereon by the Board of Directors from time to time out of assets or
funds of the Company legally available therefor.
2. Rights
on Liquidation. In the event of any liquidation, dissolution
or winding-up of the Company, whether voluntary or involuntary, after the
payment or setting apart for payment to the holders of any outstanding Preferred
Stock of the full preferential amounts to which such holders are entitled as
herein provided or referred to, all of the remaining assets of the Company shall
belong to and be distributable in equal amounts per share to the holders of the
Common Stock. For purposes of this paragraph 2, a consolidation
or merger of the Company with any other corporation, or the sale, transfer or
lease of all or substantially all its assets shall not constitute or be deemed a
liquidation, dissolution or winding-up of the Company.
3. Voting. Except
as otherwise provided by the laws of the State of Delaware or by this Article
IV, each share of Common Stock shall entitle the holder thereof to one
vote.
Preferred
Stock
The
Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized to provide for
the issuance of shares of Preferred Stock in series and, by filing a certificate
pursuant to the applicable law of the State of Delaware (hereinafter referred to
as a "Preferred Stock Designation"), to establish from time to time the number
of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The authority
of the Board of Directors with respect to each series shall include, but not be
limited to, determination of the following:
(a) the
designation of the series, which may be by distinguishing number, letter or
title;
(b) the
number of shares of the series, which number the Board of Directors may
thereafter (except where otherwise provided in the Preferred Stock Designation)
increase or decrease (but not below the number of shares thereof then
outstanding);
(c) whether
dividends, if any, shall be cumulative or noncumulative, and, if cumulative, the
dates from which dividends on shares of such series shall be cumulative, and the
dividend rate of the series;
(d) the
dates at which dividends, if any, shall be payable;
(e) the
redemption rights and price or prices, if any, for shares of the
series;
(f) the
terms and amount of any sinking fund provided for the purchase or redemption of
shares of the series;
(g) the
amounts payable on shares of the series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Company;
(h) whether
the shares of the series shall be convertible into shares of any other class or
series, or any other security, of the Company or any other corporation, and, if
so, the specification of such other class or series or such other security, the
conversion price or prices or rate or rates, any adjustments thereof, the date
or dates as of which such shares shall be convertible and all other terms and
conditions upon which such conversion may be made;
(i) restrictions
on the issuance of shares of the same series or of any other class or series;
and
(j) the
voting rights, if any, of the holders of shares of the series.
Except as
may be provided in this Certificate of Incorporation or in a Preferred Stock
Designation, the Common Stock shall have the exclusive right to vote for the
election of directors and for all other purposes, and holders of Preferred Stock
shall not be entitled to receive notice of any meeting of stockholders at which
they are not entitled to vote. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the outstanding Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to this Certificate of Incorporation or any Preferred Stock
Designation.
The
Company shall be entitled to treat the person in whose name any share of its
stock is registered as the owner thereof for all purposes and shall not be bound
to recognize any
equitable
or other claim to, or interest in, such share on the part of any other person,
whether or not the Company shall have notice thereof, except as expressly
provided by applicable law.
ARTICLE
V
The
Company is to have perpetual existence.
ARTICLE
VI
The
private property of the stockholders of the Company shall not be subject to the
payment of corporate debts to any extent whatever.
ARTICLE
VII
Subject
to the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, the number of directors of
the Company shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the whole Board,
provided, however, that prior to the annual meeting of stockholders to be held
in 2008, any resolution to fix the number of directors in a number greater than
9 directors shall require the approval of at least 80% of the directors then in
office. A director need not be a stockholder. The
election of directors of the Company need not be by ballot unless the By-laws so
require.
The
directors, other than those who may be elected by the holders of any series of
Preferred Stock or any other series or class of stock, as provided herein or in
any Preferred Stock Designation, shall be divided into three classes, as nearly
equal in number as possible. One class of directors shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 2006, another class shall be initially elected for a term expiring at
the annual meeting of stockholders to be held in 2007, and another class shall
be initially elected for a term expiring at the annual meeting of stockholders
to be held in 2008. Members of each class shall hold office until
their successors are duly elected and qualified. At each annual
meeting of the stockholders of the Company, commencing with the 2006 annual
meeting, the successors of the class of directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast for the election
of directors at such meeting to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election.
Subject
to the rights of the holders of any series of Preferred Stock, and unless the
Board of Directors otherwise determines, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies on the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled only by a
majority vote of the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have been
elected expires and until such director's successor shall have been duly elected
and qualified, provided, however, that prior to the annual meeting of
stockholders to be held in 2008, any vacancy on the Board of Directors resulting
from the death, retirement, disqualification, removal from office or other cause
of a "GBC Director" shall be filled and shall require the vote of at least 80%
of the directors then in office. (For purposes of this Article VII, a
"GBC Director" shall mean any director named by the Board of Directors of
General Binding Corporation ("GBC") pursuant to the terms of the Agreement and
Plan of Merger, dated as of March 15, 2005, by and among Fortune Brands, Inc.,
the Company, Gemini Acquisition Sub, Inc. and GBC, and any successor of a GBC
Director who is appointed to succeed a GBC Director pursuant to the terms of
this sentence.) No decrease in the number of authorized directors
constituting the whole Board of Directors shall shorten the term of any
incumbent director.
Subject
to the rights of the holders of any series of Preferred Stock or any other
series or class of stock, as provided herein or in any Preferred Stock
Designation, to elect additional directors under specific circumstances, any
director may be removed from office at any time, but only for cause and only by
the affirmative vote of the holders of at least 80% of the voting power of the
then outstanding capital stock of the Company (the "Capital Stock") entitled to
vote generally in the election of directors (the "Voting Stock"), voting
together as a single class.
No
director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper
personal benefit. No repeal or modification of this paragraph,
directly or by adoption of an inconsistent provision of this Certificate of
Incorporation, by the stockholders of the Company shall be effective with
respect to any cause of action, suit, claim or other matter that, but for this
paragraph, would accrue or arise prior to such repeal or
modification.
Unless
otherwise determined by the Board of Directors, no holder of stock of the
Company shall, as such holder, have any right to purchase or subscribe for any
stock of any class which the Company may issue or sell, whether or not
exchangeable for any stock of the Company of any class or classes and whether
out of unissued shares authorized by the Certificate of Incorporation of the
Company as originally filed or by any amendment thereof or out of shares of
stock of the Company acquired by it after the issue thereof.
ARTICLE
IX
1. Amendment
of Certificate of Incorporation. From time to time any of the
provisions of this Certificate of Incorporation may be amended, altered or
repealed, and other provisions authorized by the statutes of the State of
Delaware at the time in force may be added or inserted in the manner at the time
prescribed by said statutes, and all rights at any time conferred upon the
stockholders of the Company by its Certificate of Incorporation are granted
subject to the provisions of this Article IX. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall be required
to amend or repeal Article VII, this Article IX or Article XI or adopt any
provision inconsistent with any of the foregoing articles.
2. By-laws.
The Board of Directors is expressly authorized to make, alter, amend and repeal
the By-laws of the Company in any manner not inconsistent with the laws of the
State of Delaware or of this Certificate of Incorporation, subject to the power
of the holders of the Capital Stock to alter or repeal the By-laws made by the
Board of Directors; provided,
that any such amendment or repeal by stockholders shall require the affirmative
vote of the holders of at least 80% of the voting power of the then
outstanding Voting Stock, voting together as a single class.
ARTICLE
X
The
stockholder vote required to approve Business Combinations (as hereinafter
defined) shall be as set forth in this Article X.
1. Higher
Vote for Business Combinations. In addition to any affirmative
vote required by law, this Certificate of Incorporation or the By-laws of the
Company, and except as otherwise expressly provided in Section 2 of this
Article X, a Business Combination shall not be consummated without the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding Voting Stock, voting together as a single
class. Such
affirmative
vote shall be required notwithstanding the fact that no vote may be required, or
that a lesser percentage or separate class vote may be specified, by law or in
any agreement with any national securities exchange or otherwise.
2. When
Higher Vote Is Not Required. The provisions of Section 1
of this Article X shall not be applicable to a Business Combination if the
conditions specified in either of the following paragraphs A or B are
met.
A. Approval
by Continuing Directors. The Business Combination shall have
been approved by at least two-thirds of the Continuing Directors (as hereinafter
defined), whether such approval is made prior to or subsequent to the date on
which the Interested Stockholder (as hereinafter defined) became an Interested
Stockholder (the "Determination Date").
B. Price
and Procedure Requirements. Each of the seven conditions
specified in the following subparagraphs (i) through (vii) shall have been
met:
(i)The
aggregate amount of the cash and the Fair Market Value (as hereinafter defined)
as of the date of the consummation of the Business Combination (the
"Consummation Date") of any consideration other than cash to be received per
share by holders of Common Stock in such Business Combination shall be an amount
at least equal to the higher amount determined under clauses (a) and (b)
below (the requirements of this paragraph B(i) shall be applicable with
respect to all shares of Common Stock outstanding, whether or not the Interested
Stockholder has previously acquired any shares of the Common
Stock):
(a) the
highest per share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Interested Stockholder for
any shares of Common Stock acquired beneficially by it (1) within the
two-year period immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement Date") or (2) in
the transaction in which it became an Interested Stockholder, whichever is
higher, plus interest compounded annually from the Determination Date through
the Consummation Date at the prime rate of interest of Citibank N.A. (or of
such other major bank headquartered in New York City selected by at least
two-thirds of the Continuing Directors) from time to time in effect in New York
City, less the aggregate amount of any cash dividends paid, and the Fair Market
Value of any dividends paid in other than cash, per share of Common Stock from
the Determination Date through the
Consummation
Date in an amount up to but not exceeding the amount of such interest payable
per share of Common Stock; and
(b) the
Fair Market Value per share of Common Stock on the Announcement Date or on the
Determination Date, whichever is higher.
(ii)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 class or series of outstanding Capital Stock, other than the
Common Stock, in such Business Combination shall be an amount at least equal to
the highest amount determined under clauses (a), (b) and (c) below (the
requirements of this paragraph B(ii) shall be applicable with respect to
all shares of every class or series of outstanding Capital Stock, other than the
Common Stock, whether or not the Interested Stockholder has previously acquired
any shares of a particular class or series of Capital Stock):
(a) the
highest per share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf of the Interested Stockholder for
any shares of such class or series of Capital Stock acquired beneficially by it
(1) within the two-year period immediately prior to the Announcement Date
or (2) in the transaction in which it became an Interested Stockholder,
whichever is higher, plus interest compounded annually from the Determination
Date through the Consummation Date at the prime rate of interest of
Citibank N.A. (or of such other major bank headquartered in New York City
selected by at least two-thirds of the Continuing Directors) from time to time
in effect in New York City, less the aggregate amount of any cash dividends
paid, and the Fair Market Value of any dividends paid in other than cash, per
share of such class or series of Capital Stock from the Determination Date
through the Consummation Date in an amount up to but not exceeding the amount of
such interest payable per share of such class or series of Capital Stock;
and
(b) the
Fair Market Value per share of such class or series of Capital Stock on the
Announcement Date or on the Determination Date, whichever is higher;
and
(c) the
highest preferential amount per share to which the holders of shares of such
class or series of Capital Stock would be entitled in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Company, regardless of whether the Business Combination to be consummated
constitutes such an event.
(iii)The
consideration to be received by holders of a particular class or series of
outstanding Capital Stock (including Common Stock) shall be in cash or in the
same form as previously has been paid by or on behalf of the Interested
Stockholder in its direct or indirect acquisition of beneficial ownership of
shares of such class or series of Capital Stock. If the consideration
so paid for shares of any class or series of Capital Stock varied as to form,
the form of consideration for such class or series of Capital Stock shall be
either cash or the form used to acquire beneficial ownership of the largest
number of shares of such class or series of Capital Stock previously acquired by
the Interested Stockholder.
(iv)After
such Interested Stockholder has become an Interested Stockholder and prior to
the consummation of such Business Combination, such Interested Stockholder shall
not have become the beneficial owner of any additional shares of Capital Stock
except as part of the transaction that results in such Interested Stockholder
becoming an Interested Stockholder and except in a transaction that, after
giving effect thereto, would not result in any increase in the Interested
Stockholder's percentage beneficial ownership of any class or series of Capital
Stock; and, except as approved by at least two-thirds of the Continuing
Directors: (a) there shall have been no failure to declare and
pay at the regular date therefor any full quarterly dividends (whether or not
cumulative) payable in accordance with the terms of any outstanding Capital
Stock; (b) there shall have been no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any stock
split, stock dividend or subdivision of the Common Stock); and (c) there
shall have been an increase in the annual rate of dividends paid on the Common
Stock as necessary to reflect 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 Common
Stock.
(v)After
such Interested Stockholder has become an Interested Stockholder, such
Interested Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder of the Company), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Company, whether in anticipation
of or in connection with such Business Combination or otherwise.
(vi)A
proxy or information statement describing the proposed Business Combination and
complying with the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to all stockholders of
the Company 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). The proxy or information statement shall contain on the
first page thereof, in a prominent place, any statement as to the advisability
of the Business Combination that the Continuing Directors, or any of them, may
choose to make and, if deemed advisable by at least two-thirds of the Continuing
Directors, the opinion of an investment banking firm selected for and on behalf
of the Company by at least two-thirds of the Continuing Directors as to the
fairness of the terms of the Business Combination from a financial point of view
to the holders of the outstanding shares of Capital Stock other than the
Interested Stockholder and its Affiliates or Associates (as hereinafter
defined).
(vii)Such
Interested Stockholder shall not have made any material change in the Company's
business or equity capital structure without the approval of at least two-thirds
of the Continuing Directors.
Any
Business Combination to which Section 1 of this Article X shall not apply
by reason of this Section 2 shall require only such affirmative vote as is
required by law, any other provision of this Certificate of Incorporation, the
By-laws of the Company or any agreement with any national securities
exchange.
3. Certain
Definitions. For the purposes of this Article X:
A. A
"Business Combination" shall mean:
(i)any
merger or consolidation of the Company or any Subsidiary (as hereinafter
defined) with (i) any Interested Stockholder or (ii) any other
corporation (whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate or Associate of an
Interested Stockholder; or
(ii)any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder involving any assets
or securities of the Company, any Subsidiary or any Interested Stockholder or
any Affiliate or Associate of any Interested Stockholder having an aggregate
Fair Market Value of $20,000,000 or more; or
(iii)the
adoption of any plan or proposal for the liquidation or dissolution of the
Company proposed by or on behalf of any Interested Stockholder or any Affiliate
or Associate of any Interested Stockholder; or
(iv)any
reclassification of securities (including any reverse stock split), or
recapitalization of the Company, or any merger or consolidation of the Company
with
any
Subsidiary or any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) that has the effect, directly or
indirectly, of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder;
or
(v)any
agreement, contract, arrangement or other understanding providing for any one or
more of the actions specified in clauses (i) through (iv)
above.
B. A
"person" shall mean any individual, firm, corporation or other entity and shall
include any group composed of any person and any other person with whom such
person or any Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of Capital Stock.
C. "Interested
Stockholder" shall mean any person (other than the Company or any Subsidiary and
other than any profit-sharing, employee stock ownership or other employee
benefit plan of the Company, any Subsidiary, Fortune Brands, Inc., a Delaware
corporation ("Fortune"), or any subsidiary of Fortune or any trustee of or
fiduciary with respect to any such plan when acting in such capacity) who or
which:
(i)is
the beneficial owner of Voting Stock having 10% or more of the votes entitled to
be cast by the holders of all then outstanding shares of Voting Stock;
or
(ii)is
an Affiliate or Associate of the Company and at any time within the two-year
period immediately prior to the date in question was the beneficial owner of
Voting Stock having 10% or more of the votes entitled to be cast by the holders
of all then outstanding shares of Voting Stock; or
(iii)is
an assignee of or has otherwise succeeded to any shares of Voting Stock which
were at any time within the two-year period immediately prior to the date in
question beneficially owned by any Interested Stockholder, 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;
provided,
however,
that Fortune shall not be an Interested Stockholder as a result of its ownership
of Capital Stock of the Company prior to the distribution of the shares of
Capital Stock of the Company held by Fortune to the holders of capital stock of
Fortune (the "Distribution").
D. A
person shall be a "beneficial owner" of any Capital Stock:
(i)which
such person or any Affiliate or Associate of such person beneficially owns,
directly or indirectly; or
(ii)which
such person or any Affiliate or Associate of such person has, directly or
indirectly, (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
pursuant to any agreement, arrangement or understanding; or
(iii)which
are beneficially owned, directly or indirectly, by any other person with which
such person or any Affiliate or Associate of such person has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Capital Stock.
E. For
the purposes of determining whether a person is an Interested Stockholder
pursuant to paragraph C of this Section 3, the number of shares of
Capital Stock deemed to be outstanding shall include shares deemed owned by the
Interested Stockholder through application of paragraph D of this
Section 3 but shall not include any other shares of Capital Stock that may
be issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
F. "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 amended, as in effect on August 16, 2005 (the term
"registrant" in such Rule 12b-2 meaning in this case the
Company).
G. "Subsidiary"
means any corporation of which a majority of any class of equity security is
beneficially owned by the Company; provided, however, that for the purposes of
the definition of Interested Stockholder set forth in paragraph C of this
Section 3, the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is beneficially owned by the
Company.
H. "Continuing
Director" means any member of the Board of Directors of the Company (the
"Board") who is not an Affiliate or Associate or representative of the
Interested Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Continuing Director who is not an Affiliate or Associate or representative of
the Interested Stockholder and is recommended or elected to succeed a Continuing
Director by at least two-thirds of the Continuing Directors then members of the
Board.
I. "Fair
Market Value" means: (i) in the case of cash, the amount of such cash;
(ii) 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 New York Stock Exchange Composite Transactions reporting system, or, if such
stock is not quoted on such system, on the New York Stock Exchange, or, if such
stock is not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934, as amended, on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period immediately preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations System 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 in good
faith by at least two-thirds of the Continuing Directors; and (iii) in the
case of property other than cash or stock, the fair market value of such
property on the date in question as determined in good faith by at least
two-thirds of the Continuing Directors.
J. In
the event of any Business Combination in which the Company survives, the phrase
"consideration other than cash to be received" as used in paragraphs B(i)
and (ii) of Section 2 of this Article X shall include the shares of Common
Stock and/or the shares of any other class or series of Capital Stock retained
by the holders of such shares.
4. Powers
of Continuing Directors. Any
determination as to compliance with this Article X, including without limitation
(A) whether a person is an Interested Stockholder, (B) the number of
shares of Capital Stock or other securities beneficially owned by any person,
(C) whether a person is an Affiliate or Associate of another,
(D) whether the requirements of paragraph B of Section 2 have
been met with respect to any Business Combination, and (E) whether the
assets that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Company or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $20,000,000 or more shall be made only upon action by not less
than two-thirds of the Continuing Directors of the Company; and the good faith
determination of at least two-thirds of the Continuing Directors on such matters
shall be conclusive and binding for all the purposes of this Article
X.
5. No
Effect on Fiduciary Obligations. Nothing
contained in this Article X shall be construed to relieve the Board of Directors
or any Interested Stockholder from any fiduciary obligation imposed by
law.
6. Amendment,
Repeal, etc. Notwithstanding
any other provisions of this Certificate of Incorporation or the By-laws of the
Company (and notwithstanding the fact that a lesser percentage or separate class
vote may be specified by law, this Certificate of Incorporation or the By-laws
of the Company), the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to
amend or
repeal, or adopt any provisions inconsistent with, this Article X; provided,
however, that the preceding provisions of this Section 6 shall not apply to
any amendment to this Article X, and such amendment shall require only such
affirmative vote as is required by law and any other provisions of this
Certificate of Incorporation or the By-laws of the Company, if such amendment
shall have been approved by at least two-thirds of the members of the Board who
are persons who would be eligible to serve as Continuing Directors.
ARTICLE
XI
From and
after the time of the Distribution (as defined in Article X), any action
required or permitted to be taken by the stockholders shall be taken only at an
annual or special meeting of such stockholders and not by consent in
writing. Special meetings of the stockholders for any purpose or
purposes shall be called only by the Board of Directors pursuant to a resolution
adopted by a majority of the whole Board.