EXHIBIT 10(c)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is entered into
as of the 11th day of August, 1997 by and between Atlantic Tele-Network, Inc.,
a Delaware corporation (the "Company"), and ATN MergerCo., a Delaware
corporation ("Newco").
WHEREAS, to eliminate corporate disputes and to maximize the value of the
Company for the benefit of the Company and its stockholders, the Company has
entered into a Principal Terms Agreement dated January 29, 1997 among the
Company and its co-chief executive officers and principal stockholders,
Xxxxxxxxx X. Prior, Jr. ("Prior") and Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), which
contemplates the separation of the businesses and assets of the Company in the
manner set forth herein and in the Recapitalization Agreement (as defined
below) and the Subscription Agreement (as defined below); and
WHEREAS, in order to accomplish such separation, the Company and Emerging
Communications, Inc., a Delaware corporation ("ECI"), have entered into a
Subscription Agreement of even date herewith (the "Subscription Agreement"),
pursuant to which, subject to the terms and conditions set forth therein, the
Company has agreed to transfer to ECI all of the capital stock of its wholly
owned subsidiaries, Atlantic Tele-Network, Co., a Virgin Islands corporation
("ATNCo."), and Atlantic Aircraft, Inc., a Delaware corporation, as well as
certain other assets of the Company as more fully described therein relating
to businesses conducted by ATNCo., its subsidiaries, Virgin Islands Telephone
Corporation, a Virgin Islands corporation ("VITELCO"), Vitelcom Cellular Inc.,
a Virgin Islands corporation, and Vitelcom, Inc., a Virgin Islands
corporation, and Aircraft Corp. in exchange for 10,959,131 shares of common
stock, par value $0.01 per share (the "ECI Common Stock"), of ECI; and
WHEREAS, the Company, Prior, Xxxxxxx and the 1994 Prior Charitable Remainder
Trust have entered into a Recapitalization Agreement dated of even date
herewith (the "Recapitalization Agreement"), pursuant to which, subject to the
terms and conditions set forth therein, (a) the Company has agreed to
repurchase an aggregate of 765,852 shares of common stock, par value $.01 per
share (the "Company Common Stock"), of the Company owned by Prior and the
Trust, and (b) Xxxxxxx has agreed to exchange 3,325,000 shares of Company
Common Stock owned by Xxxxxxx and certain members of his family for 3,325,000
shares of a new class of common stock, par value $0.01 per share, of the
Company denominated Class A Common Stock ("Class A Common Stock") and Prior
has agreed to exchange 2,927,038 shares of Company Common Stock owned by Prior
for 2,927,038 shares of a new class of common stock, par value $0.01 per
share, of the Company denominated Class B Common Stock (the "Class B Common
Stock" and, together with the Company Common Stock and the Class A Common
Stock, the "Common Stock"); and
WHEREAS, Newco desires to merge with the Company and the Company desires to
merge with Newco, all upon the terms and subject to the conditions of this
Merger Agreement.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained and subject to the terms and conditions hereinafter
set forth, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
Section 1.01. The Merger. (a) In accordance with the provisions of this
Merger Agreement and the General Corporation Law of the State of Delaware (the
"Delaware Act"), at the Effective Time (as hereinafter defined), Newco shall
be merged (the "Merger") with and into the Company, and the Company shall be
the surviving corporation (hereinafter sometimes called the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
State of Delaware. The name of the Surviving Corporation shall be the same as
that of the Company. At the Effective Time, the separate existence of Newco
shall cease.
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(b) The Merger shall have the effects on Newco and the Company as
constituent corporations of the Merger as provided under the Delaware Act.
Section 1.02. Effective Time. The Merger shall become effective at the time
of filing of, or at such later time specified in, a certificate of merger, in
the form required by and executed in accordance with the Delaware Act, with
the Secretary of State of the State of Delaware in accordance with the
provisions of (S) 251 of the Delaware Act (the "Certificate of Merger"). The
date and time when the Merger shall become effective is herein referred to as
the "Effective Time."
Section 1.03. Certificate of Incorporation and By-Laws of Surviving
Corporation. At the Effective Time, the Certificate of Incorporation shall be
amended and restated in its entirety in the form set forth in Exhibit 1.03
hereto and the Certificate of Incorporation as so amended and the By-Laws of
the Company, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation and By-Laws of the Surviving Corporation
until thereafter amended as provided by law.
Section 1.04. Directors and Officers of Surviving Corporation. The directors
of Newco immediately prior to the Effective Time will be, from and after the
Effective Time, the directors of the Surviving Corporation, and the officers
of the Company immediately prior to the Effective Time will be, from and after
the Effective Time, the officers of the Surviving Corporation, in each case
until their successors are elected and qualified.
Section 1.05. Stockholders' Meeting. The Company will take all action
necessary in accordance with applicable law and its Restated Certificate of
Incorporation and By-Laws to convene a special meeting of its stockholders
(the "Special Meeting") as soon as practicable to consider and vote upon the
approval and adoption of this Merger Agreement and the other components of the
Transactions (as defined in the Subscription Agreement). The Company, through
its Board of Directors, shall recommend to its stockholders approval and
adoption of this Merger Agreement (which recommendation shall be contained in
the related proxy statement) and shall use all commercially reasonable efforts
to solicit from its stockholders proxies in favor of approval and adoption of
this Merger Agreement and the other components of the Transactions.
Section 1.06. Filing of Certificate of Merger. At the Closing (as
hereinafter defined), Newco and the Company shall cause a Certificate of
Merger to be executed and filed with the Secretary of State of the State of
Delaware as provided in (S) 251 of the Delaware Act, and shall take any and
all other lawful actions and do any and all other lawful things to cause the
Merger to become effective.
Section 1.07. Further Assurances. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any deeds, bills
of sale, assignments, assurances or any other actions or things are necessary
or desirable to vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of either of the constituent corporations
acquired or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger or otherwise to carry out this Merger Agreement,
the officers and directors of the Surviving Corporation shall be authorized to
execute and deliver, in the name and on behalf of each of the constituent
corporations or otherwise, all such deeds, bills of sale, assignments and
assurances and to take and do, in the name and on behalf of each of the
constituent corporations or otherwise, all such other actions and things as
may be necessary or desirable to vest, perfect or confirm any and all right,
title and interest in, to and under such rights, properties or assets in the
Surviving Corporation or otherwise to carry out this Merger Agreement.
ARTICLE II
CONVERSION OF SHARES
Section 2.01. Shares. (a) Each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into the right to receive (i) 0.40 shares of Common Stock, par value $0.01 per
share, of the Surviving Corporation ("Surviving Corporation Common Stock") and
(ii) one share of ECI Common Stock.
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(b) The outstanding shares of Class A Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holders thereof, be converted into the
right to receive 5,704,231 shares of ECI Common Stock in the aggregate.
(c) The outstanding shares of Class B Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive 2,807,040 shares of Surviving Corporation Common Stock in the
aggregate.
(d) Each share of Common Stock, par value $0.01 per share, of Newco shall,
by virtue of the Merger and without any action on the part of any holder
thereof, be cancelled and no consideration shall be issued in respect thereof.
(e) All shares of Class A Common Stock, Class B Common Stock, Company Common
Stock and all shares of common stock, par value $0.01 per share, of Newco, by
virtue of the Merger and without any action on the part of holders thereof,
shall no longer be outstanding and shall be canceled and retired and cease to
exist. Each holder of Company Common Stock, Class A Common Stock or Class B
Common Stock immediately prior to the Effective Time shall, after the Merger,
cease to have any rights with respect such Company Common Stock, Class A
Common Stock or Class B Common Stock except the right to receive the
applicable Merger consideration set forth in Section 2.01 upon surrender of
certificates therefor in accordance with Section 2.02.
Section 2.02. Exchange of Shares. Prior to the Effective Time, the Company
shall select The Bank of New York or such other person or persons reasonably
satisfactory to the Company to act as Exchange Agent for the Merger (the
"Exchange Agent"). As soon as practicable after the Effective Time, the
Company shall make available, and each holder of certificates formerly
representing Company Common Stock, Class A Common Stock and Class B Common
Stock (each, a "Company Holder") will be entitled to receive, upon surrender
to the Exchange Agent of one or more certificates representing such stock
("Certificates") for cancellation, certificates representing the number of
shares of Surviving Corporation Common Stock and ECI Common Stock into which
such shares are converted in the Merger and cash in consideration of
fractional shares as provided in Section 2.04. Such shares of Surviving
Corporation Common Stock and ECI Common Stock issued in the Merger shall each
be deemed, for all purposes including the right to receive notices of and to
vote at meetings of stockholders and the right to receive dividends, if any,
to have been issued at the Effective Time.
Section 2.03. Dividends, Transfer Taxes. Notwithstanding Section 2.02
hereof, no dividends or other distributions that are declared or made on
Surviving Corporation Common Stock or ECI Common Stock will be paid to persons
entitled to received certificates representing Surviving Corporation Common
Stock or ECI Common Stock pursuant to this Merger Agreement until such persons
surrender their Certificates formerly representing Company Common Stock. Upon
such surrender, there shall be paid to the person in whose name the
certificates representing such Surviving Corporation Common Stock or ECI
Common Stock shall be issued any dividends or other distributions which shall
have become payable with respect to such stock in respect of a record date
after the Effective Time. In no event shall the persons entitled to receive
such dividends be entitled to receive interest on such dividends. In the event
that any certificates for any shares of Surviving Corporation Common Stock are
to be issued in a name other than that in which the Certificates formerly
representing shares of Company Common Stock surrendered in exchange therefor
are registered, it shall be a condition of such exchange that the person
requesting such exchange shall pay to the Exchange Agent any transfer or other
taxes required by reason of the issuance of certificates for such shares of
Surviving corporation Common Stock or ECI Common Stock or shall establish to
the satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to a Company Holder for any shares of Surviving
Corporation Common Stock, ECI Common Stock or dividends thereon delivered to a
public official pursuant to any applicable escheat or similar abandoned
property laws.
Section 2.04. No Fractional Shares. Notwithstanding anything herein to the
contrary, no certificates or scrip representing less than one full share of
Surviving Corporation Common Stock or ECI Common Stock shall
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be issued upon the surrender for exchange of Certificates representing Company
Common Stock, Class A Common Stock or Class B Common Stock pursuant to Section
2.02. In lieu of any such fractional share, each Company Holder who would
otherwise have been entitled to a fraction of a share of Surviving Corporation
Common Stock or ECI Common Stock pursuant to Section 2.01 shall be paid upon
surrender of Certificates for exchange pursuant to Section 2.02 cash (without
interest) in an amount equal to such holder's proportionate interest in the
net proceeds from the sale or sales in the open market by the Exchange Agent,
on behalf of all such holders, of the Excess Shares (as defined below). As
soon as practicable following the Effective Date, the Exchange Agent shall
determine the excess of (i) the number of full shares of Surviving Corporation
Common Stock and ECI Common Stock delivered to the Exchange Agent by the
Surviving Corporation over (ii) the aggregate number of full shares of
Surviving Corporation Common Stock and ECI Common Stock to be distributed to
holders of Company Common Stock, Class A Common Stock and Class B Common Stock
(such excess being herein called the "Excess Shares"), and the Exchange Agent,
as agent for each of the former Company Holders, shall sell the Excess Shares
at the prevailing prices on the American Stock Exchange. The sale of the
Excess Shares by the Exchange Agent shall be executed on the American Stock
Exchange through one or more member firms of the American Stock Exchange and
shall be executed in round lots to the extent practicable. The Surviving
Corporation shall pay all commissions, transfer taxes and other out-of-pocket
transaction costs, including the expenses and compensation of the Exchange
Agent, incurred in connection with such sale of Excess Shares. Until the net
proceeds of such sale have been distributed to the former Company Holders, the
Exchange Agent will hold such proceeds in trust for each of such former
stockholders (the "Fractional Securities Fund"). As soon as practicable after
the determination of the amount of cash to be paid to former Company Holders
in lieu of any fractional interests, the Exchange Agent shall make available
in accordance with this Merger Agreement such amount to such former
stockholders.
ARTICLE III
CONDITIONS TO CLOSING
The respective obligations of each party to effect the Merger shall be
subject to the fulfillment at or prior to the Closing of each of the following
conditions:
Section 3.01. Stockholder Approval. This Merger Agreement and the
Transactions (as defined in the Subscription Agreement) shall have been
approved and adopted by the holders of a majority of the outstanding shares of
Company Common Stock.
Section 3.02. Closings. Each of the conditions to the closing under the
Subscription Agreement (the "Subscription Agreement Closing") and the closing
under the Recapitalization Agreement (the "Recapitalization Agreement
Closing") shall have been satisfied or, with the consent of each party hereto,
waived; the Subscription Agreement Closing shall have been consummated in
accordance with the provisions of the Subscription Agreement; and the
Recapitalization Agreement Closing shall have been consummated in accordance
with the provisions of the Recapitalization Agreement.
Section 3.03. Performance. Each of the parties hereto shall have performed
and complied in all material respects with all obligations and conditions
required by this Merger Agreement to be performed or complied with by it at or
prior to the Closing.
ARTICLE IV
CLOSING DATE; CLOSING
Section 4.01. Closing Date; Closing. The closing of the Merger (the
"Closing") shall take place on the same day as the Subscription Agreement
Closing and the Recapitalization Agreement Closing and shall be held
immediately after consummation of such closings as soon as practicable after
satisfaction or waiver by the
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parties hereto of the conditions set forth in Article III hereof. The date on
which the Closing occurs is referred to herein as the "Closing Date." The
Closing shall take place at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. At the Closing, the Company and Newco shall
cause to be executed and filed with the Secretary of State of Delaware the
Certificate of Merger in accordance with the applicable provisions of the
Delaware Act and shall take any and all other lawful actions and do any and
all other lawful things necessary to cause the Merger to become effective.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01. Termination. This Merger Agreement shall terminate upon any
termination of the Subscription Agreement or the Recapitalization Agreement.
In addition, this Merger Agreement may be terminated, notwithstanding
stockholder approval hereof, at any time prior to the Effective Time by the
Board of Directors of the Company and the Board of Directors of Newco without
the authorization or consent of the Company's or Newco's stockholders. In the
event of any such termination, neither party shall have any liability of any
kind to the other party.
Section 5.02. Entire Agreement. This Merger Agreement, together with all
other written agreements which may be entered into between the parties in
connection herewith and the transactions contemplated hereby and all other
documents and instruments delivered in connection herewith and therewith and
the transactions contemplated hereby and thereby, set forth the full and
complete understanding of the parties hereto with respect to the transactions
contemplated hereby.
Section 5.03. Governing Law. Except where the laws of the State of Delaware
are by their terms applicable, this Merger Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
reference to the conflict of laws rules thereof.
Section 5.04. Headings. The headings in this Merger Agreement are intended
solely for convenience of reference and shall be given no effect in the
interpretation of this Merger Agreement.
Section 5.05. Counterparts. This Merger Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
Section 5.06. Benefits. This Merger Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns, and no other person will have any right or obligation hereunder.
Section 5.07. Assignment. Neither this Merger Agreement nor any right
hereunder may be assigned by the parties hereto without the prior written
consent of the other party. Subject to the foregoing, this Merger Agreement
shall be binding upon and inure to the benefit of the successors, heirs,
representatives and assigns of each party hereto.
Section 5.08. Amendment and Waiver. This Merger Agreement may be amended
only by an instrument in writing signed on behalf of each of the parties
hereto. Subject to the Delaware Act any term, condition or provision of this
Merger Agreement may be waived (if in writing) at any time by the party or
each of the parties entitled to the benefits thereof.
Section 5.09. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
given if delivered by hand, or when sent by telex or telecopier (with
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receipt confirmed) or by registered mail, return receipt requested, addressed
as follows (or to such other address as a party may designate by notice to the
other):
(a)If to the Company or Newco:
Atlantic Tele-Network, Inc.
Estate Havensight
X.X. Xxx 00000
Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000
(000) 000-0000 or 000-0000
Attention: Xxxxxxxxx X. Prior
Telecopy: (000) 000-0000
with copies to:
Xxxxx X. Xxxxx, P.C.
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
and
Atlantic Tele-Network, Inc.
Chase Financial Center
X.X. Xxx 0000
Xx. Xxxxx, X.X. Xxxxxx Xxxxxxx 00000-0000
(000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
and
Xxxxx Xxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Telecopy: (000) 000-0000
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IN WITNESS WHEREOF, each of the Company and Newco has caused this Merger
Agreement to be executed on the date first written above.
Atlantic Tele-Network, Inc.
By: /s/ Xxxxxxxxx X. Prior
__________________________________
Name: Xxxxxxxxx X. Prior
Title: Co-Chief Executive Officer
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Co-Chief Executive Officer
ATN MergerCo.
By: /s/ Xxxxxxxxx X. Prior
__________________________________
Name: Xxxxxxxxx X. Prior
Title: President
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EXHIBIT 1.03 TO AGREEMENT
AND PLAN OF MERGER
RESTATED CERTIFICATE OF INCORPORATION
OF
ATLANTIC TELE-NETWORK, INC.
ARTICLE ONE
NAME
The name of the Corporation is Atlantic Tele-Network, Inc.
ARTICLE TWO
REGISTERED OFFICE
The address of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the City of Wilmington,
County of Xxx Xxxxxx, Xxxxxxxx 00000. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE THREE
PURPOSE
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
the State of Delaware.
ARTICLE FOUR
CAPITAL STOCK
1. Authorized Capital Stock. The total number of shares of all classes of
capital stock which the Corporation shall have the authority to issue is
30,000,000 shares divided into two classes of which 10,000,000 shares, par
value $.01 per share, shall be designated Preferred Stock and 20,000,000
shares, par value $.01 per share, shall be designated Common Stock.
2. Terms of the Preferred Stock
2.1 Issuance. The Board of Directors is expressly authorized, subject to
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in one or more series, to establish the number of shares to be
included in each such series, and to fix the designations, powers,
preferences, and rights of the shares of each such series, and any
qualifications, limitations, or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates,
and whether they shall be payable in preference to, or in another
relation to, the dividends payable to any other class or classes or
series of stock;
(c) Whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion or exchange privileges, and,
if so, the terms and conditions of such conversion or exchange,
including provision for adjustment of the conversion or exchange rate
in such events as the Board of Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the manner
of selecting shares for redemption if less than all shares are to be
redeemed, the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates;
(f) Whether that series shall be entitled to the benefit of a sinking fund
to be applied to the purchase or redemption of shares of that series,
and, if so, the terms and amounts of such sinking fund;
(g) The right of the shares of that series to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or
any subsidiary, upon the issue of any additional stock (including
additional shares of such series or of any other series) and upon the
payment of dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the Corporation or any
subsidiary of any outstanding stock of the Corporation;
(h) The right of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation
and whether such rights shall be in preference to, or in another
relation to, the comparable rights of any other class or classes or
series of stock; and
(i) Any other power, preference or relative, participating, optional or
other special rights, qualifications, limitations or restrictions of
that series.
3. Terms of the Common Stock
3.1 Dividends. Subject to the preferential rights, if any, of the Preferred
Stock, the holders of shares of Common Stock shall be entitled to receive,
when and if declared by the Board of Directors, out of the assets of the
Corporation which are by law available therefor, dividends payable either in
cash, in property, or in shares of the Corporation's capital stock.
3.2 Voting Rights. Subject to the preferential rights, if any, of the
Preferred Stock and except as otherwise provided by applicable law, at every
annual or special meeting of stockholders of the Corporation, every holder of
Common Stock shall be entitled to one vote, in person or by proxy, for each
share of Common Stock standing in his name on the books of the Corporation.
3.3 Liquidation, Dissolution, or Winding Up. In the event of any voluntary
or involuntary liquidation, dissolution, or winding up of the affairs of the
Corporation, after payment or provision for payment of the debts and other
liabilities of the Corporation and of the preferential amounts, if any, to
which the holders of Preferred Stock shall be entitled, the holders of all
outstanding shares of Common Stock shall be entitled to share ratably in the
remaining net assets of the Corporation.
ARTICLE FIVE
DIRECTORS
1. Management. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors of the Corporation.
2. By-Laws. The board of directors is expressly authorized to adopt, amend,
or repeal the by-laws of the Corporation.
3. No Ballot. Elections of directors need not be by written ballot unless
the by-laws of the Corporation shall otherwise provide.
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4. Limitation of Liability. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director; provided, however, that the
foregoing shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware is hereafter amended to
permit further elimination or limitation of the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware as so amended. Any repeal or
modification of this Article FIVE shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE SIX
EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE SEVEN
COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions
of Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which said application has been made, be
binding on all the creditors or class of creditors, and/or on all of the
stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
ARTICLE EIGHT
AMENDMENT
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
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