Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered 37 217K
Pursuant to a Transaction
2: EX-1.1 Underwriting Agreement 21 105K
3: EX-1.5 Underwriting Agreement 70 219K
4: EX-4.1 Instrument Defining the Rights of Security Holders 10 58K
12: EX-4.10 Instrument Defining the Rights of Security Holders 2 17K
5: EX-4.2 Instrument Defining the Rights of Security Holders 17 64K
6: EX-4.4 Instrument Defining the Rights of Security Holders 82 345K
7: EX-4.5 Instrument Defining the Rights of Security Holders 94 342K
8: EX-4.6 Instrument Defining the Rights of Security Holders 30 96K
9: EX-4.7 Instrument Defining the Rights of Security Holders 35 109K
10: EX-4.8 Instrument Defining the Rights of Security Holders 34 108K
11: EX-4.9 Instrument Defining the Rights of Security Holders 31 111K
13: EX-5.1 Opinion re: Legality 7 28K
14: EX-12.1 Statement re: Computation of Ratios 1 12K
15: EX-23.2 Consent of Experts or Counsel 1 8K
16: EX-23.3 Consent of Experts or Counsel 1 9K
17: EX-25.1 Statement re: Eligibility of Trustee 4 23K
18: EX-25.2 Statement re: Eligibility of Trustee 5 23K
19: EX-25.3 Statement re: Eligibility of Trustee 6 33K
EX-4.1 — Instrument Defining the Rights of Security Holders
Exhibit Table of Contents
EXHIBIT 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
THE WALT DISNEY COMPANY
The undersigned, David K. Thompson, certifies that he is the Senior Vice
President-Assistant General Counsel of The Walt Disney Company, a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), and hereby further certifies as follows:
1. The name of the Corporation is The Walt Disney Company and the
name under which the corporation was originally incorporated is DC Holdco,
Inc.
2. The original Certificate of Incorporation of the Corporation was
filed in the Office of the Secretary of State of the State of Delaware on
July 28, 1995.
3. Restated Certificates of Incorporation were filed in the office of
the Secretary of State of Delaware on September 21, 1995, January 19, 1996
and February 20, 1996.
This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
This Restated Certificate of Incorporation restates and integrates and
further amends the Certificate of Incorporation of this corporation by
amending Articles FIFTH and SIXTH to provide for the annual election of
directors commencing with the class of directors standing for election in
1999.
6. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended to read as herein set forth in
full:
FIRST: The name of the Corporation is The Walt Disney Company.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of its registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may now or hereafter be organized under the
General Corporation Law of the State of Delaware as set forth in Title 8 of the
Delaware Code, as in effect from time to time (the "GCL").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 1,300,000,000, consisting of 1,200,000,000 shares of
common stock, par value $0.01 per share ("Common Stock"), and 100,000,000
shares of preferred stock, par value $0.01 per share ("Preferred Stock").
Shares of the Preferred Stock of the Corporation may be issued from time to
time in one or more classes or series, each of which class or series shall have
such distinctive designation, number of shares, or title as shall be fixed by
the Board of Directors of the Corporation (the "Board of Directors") prior to
the issuance of any shares thereof. Each such class or series of Preferred Stock
shall consist of such number of shares, and have such voting powers, full or
limited, or no voting powers, and such preferences and relative, participating,
optional or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated in such resolution or resolutions
providing for the issue of such
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class or series of Preferred Stock as may be adopted from time to time by the
Board of Directors prior to the issuance of any shares thereof pursuant to the
authority hereby expressly vested in it, all in accordance with the laws of the
State of Delaware.
SERIES R PREFERRED STOCK. There is designated a Series R Preferred Stock of
the Corporation, the designation and amount thereof and the voting powers,
preferences and relative, participating, optional or other special rights of the
shares of such series and the qualifications, limitations and restrictions
thereof, which are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated "Series R Preferred Stock" ("Series R Preferred Stock") and the
number of shares constituting such series shall be 1,800,000. Shares of Series
R Preferred Stock shall have a par value of $.01 per share.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series R Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, (i) cash dividends in an amount per share (rounded to
the nearest cent) equal to 400 times the aggregate per share amount of all cash
dividends declared or paid on the Common Stock of the Corporation and (ii) a
preferential cash dividend (a "Preferential Dividend"), if any, on the fifteenth
day of January, April, July and October of each year (each a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series R Preferred
Stock, in an amount equal to $1.00 per share of Series R Preferred Stock less
the per share amount of all cash dividends declared on the Series R Preferred
Stock pursuant to clause (i) of this sentence since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series R Preferred Stock. In the event the Corporation shall, at any time after
the issuance of any share or fraction of a share of Series R Preferred Stock,
make any distribution on the shares of Common Stock, whether by way of a
dividend or a reclassification of stock, a recapitalization, reorganization or
partial liquidation of the Corporation or otherwise, which is payable in cash or
any debt security, debt instrument, real or personal property or any other
property (other than cash dividends subject to clause (i) of the immediately
preceding sentence and other than a distribution of shares of Common Stock or
other capital stock of the Corporation and other than a distribution of rights
or warrants to acquire any such share, including any debt security convertible
into or exchangeable for any such share, at a price less than the Current Market
Price of such share), then and in each such event the Corporation shall
simultaneously pay on each then outstanding share of Series R Preferred Stock of
the Corporation a distribution, in like kind, of 400 times (subject to the
provisions for adjustment hereinafter set forth) such distribution paid on a
share of Common Stock. The dividends and distributions on the Series R
Preferred Stock to which holders thereof are entitled pursuant to clause (i) of
the first sentence of this paragraph and the second sentence of this paragraph
are hereinafter referred to as "Participating Dividends," and the multiple of
cash and non-cash dividends on the Common Stock applicable to the determination
of the Participating Dividends, which shall be 400, subject to adjustment from
time to time as hereinafter provided, is hereinafter referred to as the
"Dividend Multiple." In the event the Corporation shall at any time declare or
pay any dividend or make any distribution on Common Stock payable in shares of
Common Stock, or effect a subdivision or split or a combination, consolidation
or reverse split of the outstanding shares of Common Stock into a greater or
lesser number of shares of Common Stock, then in each such event the Dividend
Multiple thereafter applicable to the determination of the amount of
Participating Dividends which holders of shares of Series R Preferred Stock
shall be entitled to receive shall be the Dividend Multiple applicable
immediately prior to such event multiplied by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare each Participating Dividend at the same
time it declares any cash or non-cash dividend or distribution on the Common
Stock in respect of which a Participating Dividend is required to be paid. No
cash or non-cash dividend or distribution on the Common Stock in respect of
which a Participating Dividend is required shall be paid or set aside for
payment on the
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Common Stock unless a Participating Dividend in respect of such dividend or
distribution on the Common Stock shall be simultaneously paid or set aside for
payment on the Series R Preferred Stock.
(C) Preferential Dividends shall begin to accumulate on outstanding shares
of Series R Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issuance of any shares of Series R Preferred Stock.
Accumulated but unpaid Preferential Dividends shall cumulate but shall not bear
interest. Preferential Dividends paid on the shares of Series R Preferred
Stock in an amount less than the total amount of such dividends at the time
accumulated and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
Section 3. VOTING RIGHTS. The holders of shares of Series R Preferred
Stock shall have the following voting rights:
(A) Each share of Series R Preferred Stock shall entitle the holder
thereof to 400 votes on all matters submitted to a vote of the stockholders of
the Corporation. The number of votes which a holder of Series R Preferred Stock
is entitled to cast, as the same maybe adjusted from time to time as hereinafter
provided, is hereinafter referred to as the "Vote Multiple." In the event the
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding shares of Common
Stock into a greater or lesser number of shares of Common Stock, then in each
such case the Vote Multiple thereafter applicable to the determination of the
number of votes per share to which holders of shares of Series R Preferred Stock
shall be entitled after such event shall be the Vote Multiple immediately prior
to such event multiplied by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is 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 shares
of Series R Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) If at the time of any annual meeting of stockholders for the election
of directors a default in preference dividends on the Series R Preferred Stock
shall exist, the number of directors constituting the Board of Directors of the
Corporation shall be increased by two, and the holders of the Series R Preferred
Stock, together with the holders of any other series of Preferred Stock of the
Corporation who shall have been granted voting rights to elect directors upon a
default in the payment of dividends by the Corporation (collectively with the
holders of the Series R Preferred Stock, the "Preferred Stockholders"), shall
have the right at such meeting, voting together as a single class without regard
to series, to the exclusion of the holders of Common Stock, to elect two
directors of the Corporation to fill such newly created directorships. Such
right shall continue until there are no dividends in arrears upon the Series R
Preferred Stock. Each director elected by the Preferred Stockholders (herein
called a "Preferred Director") shall continue to serve as such director for the
full term for which he shall have been elected, notwithstanding that prior to
the end of such term a default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed without cause
except by, the vote of the Preferred Stockholders, voting together as a single
class without regard to series, at a meeting of the stockholders, or of the
Preferred Stockholders, called for the purpose. So long as a default in any
preference dividends on the Series R Preferred Stock shall exist (i) any vacancy
in the office of a Preferred Director may be filled (except as provided in the
following clause (ii)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (ii) in case of the
removal of any Preferred Director, the vacancy may be filled by the vote of the
Preferred Stockholders, voting together as a single class without regard to
series, at the same meeting at which such removal shall be voted. Each director
appointed as aforesaid by the remaining Preferred Director shall be deemed, for
all purposes hereof, to be a Preferred Director. Whenever the term of office of
the Preferred Directors shall end and a default in preference dividends shall no
longer exist, the number of directors constituting the Board of Directors shall
be reduced by two. For the purposes hereof, a "default in preference dividends"
on the Series R Preferred Stock shall be deemed to have occurred whenever the
amount of accrued dividends upon the Series R Preferred Stock shall be
equivalent to six full quarter yearly dividends or more and, having so occurred,
such default shall be deemed to exist thereafter until, but only until, all
accrued dividends on all
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shares of Series R Preferred Stock then outstanding shall have been paid to the
end of the last preceding quarterly dividend period.
(D) Except as otherwise required by law or set forth herein, holders of
Series R Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for the taking of any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever Preferential Dividends or Participating Dividends are in
arrears or the Corporation shall be in default in payment thereof, thereafter
and until all accumulated and unpaid Preferential Dividends and Participating
Dividends, whether or not declared, on shares of Series R Preferred Stock
outstanding shall have been paid or set aside for payment in full, and in
addition to any and all other rights which any holder of shares of Series R
Preferred Stock may have in such circumstances, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions on or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series R Preferred Stock;
(ii) declare or pay dividends or make any other distributions on any
shares of stock ranking on a parity as to dividends with the Series R
Preferred Stock, unless dividends are paid ratably on the Series R
Preferred Stock and all such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) except as permitted by subparagraph (iv) of this paragraph (A),
redeem or purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series R Preferred Stock, provided that
the Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock of the
Corporation ranking junior (both as to dividends and upon liquidation,
dissolution or winding up) to the Series R Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series R Preferred Stock, or any shares of stock ranking on a parity with
the Series R Preferred Stock (either as to dividends or upon liquidation,
dissolution or winding up), except in accordance with a purchase offer made
in writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(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,
purchase or otherwise acquire such shares at such time and in such manner.
(C) The Corporation shall not issue any shares of Series R Preferred Stock
except upon exercise of Rights issued pursuant to that certain Rights Agreement
dated as of November 8, 1995 between the Corporation and The Bank of New York
(the "Rights Agreement"), a copy of which is on file at the principal executive
office of the Corporation and shall be made available to holders of record of
Common Stock or Series R Preferred Stock without charge upon written request
therefor addressed to the Secretary of the Corporation. Notwithstanding the
foregoing sentence, nothing contained in the provisions hereof shall prohibit or
restrict the Corporation from issuing for any purpose any series of Preferred
Stock with rights and privileges similar to, different from, or greater than
those of the Series R Preferred Stock.
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Section 5. REACQUIRED SHARES. Any shares of Series R Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. The
Corporation shall cause all such shares upon their retirement and cancellation
to become authorized but unissued shares of Preferred Stock, without designation
as to series, and such shares may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. 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 stock ranking junior
to the Series R Preferred Stock (upon liquidation, dissolution or winding up)
unless the holders of shares of Series R Preferred Stock shall have received,
subject to adjustment as hereinafter provided, the greater of either (A) $100.00
per share plus an amount equal to accumulated and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, or
(B) the amount equal to 400 times the aggregate amount to be distributed per
share to holders of Common Stock, or (ii) to the holders of stock ranking on a
party upon liquidation, dissolution or winding up with the Series R Preferred
Stock, unless simultaneously therewith distributions are made ratably on the
Series R Preferred Stock and all other shares of such parity stock in proportion
to the total amounts to which the holders of shares of Series R Preferred Stock
are entitled under clause (i) (A) of this sentence and to which the holders of
such parity shares are entitled, in each case upon such liquidation, dissolution
or winding up. The amount to which holders of Series R Preferred Stock shall be
entitled upon liquidation, dissolution or winding up of the Corporation pursuant
to clause (i) (B) of the foregoing sentence is hereinafter referred to as the
"Participating Liquidation Amount," and the multiple of the amount to be
distributed to holders of shares of Common Stock upon the liquidation,
dissolution or winding up of the Corporation applicable pursuant to said clause
to the determination of the Participating Liquidation Amount, which shall be 400
subject to adjustment from time to time as hereinafter provided, is hereinafter
referred to as the "Liquidation Multiple." In the event the Corporation shall at
any time declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or split or a combination, consolidation or
reverse split of the outstanding shares of Common Stock into a greater or lesser
number of shares of Common Stock, then in each such case the Liquidation
Multiple thereafter applicable to the determination of the Participating
Liquidation Amount to which holders of Series R Preferred Stock shall be
entitled after such event shall be the Liquidation Multiple applicable
immediately prior to such event multiplied by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event
Section 7. CERTAIN RECLASSIFICATIONS AND OTHER EVENTS
(A) In the event that holders of shares of Common Stock receive in respect
of their shares of Common Stock any share of capital stock of the Corporation
(other than any share of Common Stock of the Corporation), whether by way of
reclassification, recapitalization, reorganization, dividend or other
distribution or otherwise ("Transaction"), then in each such event the dividend
rights, rights upon the liquidation, dissolution or winding up of the
Corporation and voting rights of the shares of Series R Preferred Stock shall be
adjusted so that after such event the holders of Series R Preferred Stock shall
be entitled, in respect of each share of Series R Preferred Stock held, in
addition to such rights in respect thereof to which such holder was entitled
immediately prior to such adjustment, to (i) such additional dividends as equal
the Dividend Multiple in effect immediately prior to such Transaction multiplied
by the additional dividends which the holder of a share of Common Stock shall be
entitled to receive by virtue of the receipt in the Transaction of such capital
stock, (ii) such additional distributions upon liquidation, dissolution or
winding up of the Corporation as equal the Liquidation Multiple in effect
immediately prior to such Transaction multiplied by the additional amount which
the holder of a share of Common Stock shall be entitled to receive upon
liquidation, dissolution or winding up of the Corporation by virtue of the
receipt in the Transaction of such capital stock, as the case may be, all as
provided by the terms of such capital stock and (iii) such additional voting
rights as equal the Vote Multiple in effect immediately prior to such
Transaction multiplied by the additional voting rights which the holder of a
share of Common Stock shall be entitled to receive by virtue of the receipt in
the Transaction of such capital stock.
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(B) In the event that holders of shares of Common Stock receive in respect
of their shares of Common Stock any right or warrant to purchase Common Stock
(including as such a right, for all purposes of this paragraph, any security
convertible into or exchangeable for Common Stock) at a purchase price per share
less than the Current Market Price (as hereinafter defined) of a share of Common
Stock on the date of issuance of such right or warrant, then in each such event
the dividend rights, rights upon the liquidation, dissolution or winding up of
the Corporation and voting rights of the shares of Series R Preferred Stock
shall each be adjusted so that after such event the Dividend Multiple and the
Liquidation Multiple and the Vote Multiple shall each be the product of the
Dividend Multiple, the Liquidation Multiple and the Vote Multiple, as the case
may be, in effect immediately prior to such event multiplied by a fraction the
numerator at or of which shall be the number of shares of Common Stock
outstanding immediately before such issuance of rights or warrants plus the
maximum number of shares of Common Stock which could be acquired upon exercise
in full of all such rights or warrants and the denominator of which shall be the
number of shares of Common Stock outstanding immediately before such issuance of
rights or warrants plus the number of shares of Common Stock which could be
purchased, at the Current Market Price of the Common Stock at the time of such
issuance, by the maximum aggregate consideration payable upon exercise in full
of all such rights or warrants.
(C) In the event that holders of shares of Common Stock receive in respect
of their shares of Common Stock any right or warrant to purchase capital stock
of the Corporation (other than shares of Common Stock), including as such a
right, for all purposes of this paragraph, any security convertible into or
exchangeable for capital stock of the Corporation (other than Common Stock), at
a purchase price per share less than the Current Market Price of such shares of
capital stock on the date of issuance of such right or warrant, then in each
such event the dividend rights, rights upon liquidation, dissolution or winding
up of the Corporation and the voting rights of the shares of Series R Preferred
Stock shall each be adjusted so that after such event each holder of a share of
Series R Preferred Stock shall be entitled, in addition to such rights in
respect thereof to which such holder was entitled immediately prior to such
event, to receive (i) such additional dividends as equal the Dividend Multiple
in effect immediately prior to such event multiplied, first, by the additional
dividends to which the holder of a share of Common Stock shall be entitled upon
exercise of such right or warrant by virtue of the capital stock which could be
acquired upon such exercise and multiplied again by the Discount Fraction (as
hereinafter defined), (ii) such additional distributions upon liquidation,
dissolution or winding up of the Corporation as equal the Liquidation Multiple
in effect immediately prior to such event multiplied, first, by the additional
amount which the holder of a share of Common Stock shall be entitled to receive
upon liquidation, dissolution or winding up of the Corporation upon exercise of
such right or warrant by virtue of the capital stock which could be acquired
upon such exercise and multiplied again by the Discount Fraction and (iii) such
additional voting rights as equal the Vote Multiple in effect immediately prior
to such event multiplied, first, by the additional voting rights to which the
holder of a share of Common Stock shall be entitled upon exercise of such right
or warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction. For purposes of this
paragraph, the "Discount Fraction" shall be a fraction the numerator of which
shall be the difference between the Current Market Price (as hereinafter
defined) of a share of the capital stock subject to a right or warrant
distributed to holders of shares of Common Stock as contemplated by this
paragraph immediately after the distribution thereof and the purchase price per
share for such share of capital stock pursuant to such right or warrant and the
denominator of which shall be the Current Market Price of a share of such
capital stock immediately after the distribution of such right or warrant.
(D) For purposes of this Section 7, the "Current Market Price" of a share
of capital stock of the Corporation (including a share of Common Stock) on any
date shall be deemed to be the average of the daily closing prices per share
thereof over the 30 consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, provided that in the event that such
Current Market Price of any such share of capital stock is determined during a
period which includes any date that is within 30 Trading Days after the
ex-dividend date for (i) a dividend or distribution on stock payable in shares
of such stock or securities convertible into shares of such stock or (ii) any
subdivision, split, combination, consolidation, reverse stock split or
reclassification of such stock, then in each such event, the Current Market
Price shall be appropriately adjusted by the Board of Directors to reflect the
Current Market Price of such stock to take into account ex-dividend trading.
The closing price for any day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
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asked prices, regular way, in either case as reported in the principle
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the shares are not
listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the shares are
listed or admitted to trading or, if the shares are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or such other system then in use, or if on
any such date the shares are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the shares selected by the Board of Directors. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares are listed or admitted to trading is open for the
transaction of business or, if the shares are not listed or admitted to trading
on any national securities exchange, on which the New York Stock Exchange or
such other national securities exchange as may be selected by the Board of
Directors is open. If the shares are not publicly held or not so listed or
traded on any day within the period of 30 Trading Days applicable to the
determination of Current Market Price thereof as aforesaid, "Current Market
Price" shall mean the fair market value thereof per share as determined in good
faith by the Board of Directors. In either case referred to in the foregoing
sentence, the determination of Current Market Price shall be described in a
statement filed with the Secretary of the Corporation.
Section 8. CONSOLIDATION, MERGER, ETC. In the event that the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such event each
outstanding share of Series R Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and other property (payable in like kind), as the case may be,
for which or into which each share of Common Stock is changed or exchanged
multiplied by the higher of the Dividend Multiple, the Liquidation Multiple or
the Vote Multiple in effect immediately prior to such event.
Section 9. EFFECTIVE TIME OF ADJUSTMENTS.
(A) Adjustments to the Series R Preferred Stock required by the provisions
hereof shall be effective as of the time at which the event requiring such
adjustments occurs.
(B) The Corporation shall give prompt written notice to each holder of a
share of Series R Preferred Stock of the effect on any such shares of any
adjustment to the dividend rights or rights upon liquidation, dissolution or
winding up of the Corporation required by the provisions hereof. Notwithstanding
the foregoing sentence, the failure of the Corporation to give such notice shall
not affect the validity of or the force or effect of or the requirement for such
adjustment.
Section 10. NO REDEMPTION. The shares of Series R Preferred Stock shall
not be redeemable at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Corporation may
acquire shares of Series R Preferred Stock in any other manner permitted by law
or the provisions hereof.
Section 11. RANKING. Unless otherwise provided in the Restated
Certificate of Incorporation or a Certificate of Designation relating to a
subsequent series of Preferred Stock of the Corporation, the Series R Preferred
Stock shall rank junior to all other series of the Corporation's Preferred Stock
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up and senior to the Common Stock.
Section 12. AMENDMENT. After the Distribution Date (as defined in the
Rights Agreement), the provisions of the Restated Certificate of Incorporation
shall not be amended in any manner which would materially affect the rights,
privileges or powers of the Series R Preferred Stock without, in addition to any
other vote of stockholders required by law, the affirmative vote of the holders
of 80% or more of the outstanding shares of Series R Preferred Stock, voting
together as a single class.
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FIFTH: The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than nine
directors or more than twenty-one directors, the exact number of directors to be
determined from time to time solely by resolution adopted by the Board of
Directors. Until the annual meeting of stockholders in 2001, the directors
shall be divided into three classes, consisting initially of five, six and five
directors and designed Class I, Class II and Class III, respectively. Each
director elected prior to the effective date of this Article FIFTH shall serve
for the full term for which he or she was elected, such that the term of each
director elected at the 1996 annual meeting (Class III) shall end at the annual
meeting in 1999, the term of each director elected at the 1997 annual meeting
(Class I) shall end at the annual meeting in 2000, and the term of each director
elected at the 1998 annual meeting (Class II) shall end at the annual meeting in
2001. The term of each director elected after the 1998 annual meeting, whether
at an annual meeting or to fill a vacancy in the Board of Directors arising for
any reason, including an increase in the size of the Board of Directors, shall
end at the first annual meeting following his or her election. Commencing with
the annual meeting in 2001, the foregoing classification of the Board of
Directors shall cease, and all directors shall be of one class and serve for a
term ending at the annual meeting following the annual meeting at which the
director was elected. In no case shall a decrease in the number of directors
shorten the term of any incumbent director. Each director shall hold office
after the annual meeting at which his or her term is scheduled to end until his
or her successor shall be elected and shall qualify, subject, however, to prior
death, resignation, disqualification or removal from office. Any newly created
directorship resulting from an increase in the number of directors may be filled
by a majority of the Board of Directors then in office, provided that a quorum
is present, and any other vacancy on the Board of Directors may be filed by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director.
SIXTH: Notwithstanding the provisions of Article FIFTH, whenever the
holders of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of this Restated Certificate of Incorporation or the
resolution or resolutions adopted by the Board of Directors pursuant to Article
FOURTH applicable thereto.
SEVENTH: Elections of directors at an annual or special meeting of
stockholders shall be by written ballot unless the Bylaws of the Corporation
shall otherwise provide.
EIGHTH: Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by the Board of Directors, the
Chairman of the Board of Directors or the President. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons.
NINTH: A. Except as set forth in Section B of this Article NINTH, the
affirmative vote of the holders of four-fifths (4/5) of the outstanding stock of
the Corporation entitled to vote shall be required for:
(i) any merger or consolidation to which the Corporation, or any of
its subsidiaries, and an Interested Person (as hereinafter defined) are
parties;
(ii) any sale or other disposition by the Corporation, or any of its
subsidiaries, of all or substantially all of its assets to an Interested
Person;
(iii) any purchase or other acquisition by the Corporation, or any of
its subsidiaries, of all or substantially all of the assets or stock of an
Interested Person; and
(iv) any other transaction with an Interested Person which requires
the approval of the stockholders of the Corporation under the GCL.
B. The provisions of Section A of this Article NINTH shall not be
applicable to any transaction described therein if (i) such transaction is
approved by resolution of the Corporation's Board of Directors,
8
provided that a majority of the members of the Board of Directors voting for the
approval of such transaction were duly elected and acting members of the Board
of Directors prior to the date that the person, firm or corporation, or any
group thereof, with whom such transaction is proposed, became an Interested
Person, or (ii) the provision of a vote in excess of that required by the GCL
for such transaction violates the express provisions of the GCL.
C. As used in this Article NINTH, the term "Interested Person" shall mean
any person, firm or corporation, or any group thereof, acting or intending to
act in concert, including any person directly or indirectly controlling or
controlled by or under direct or indirect common control with such person, firm
or corporation or group, which owns of record or beneficially, directly or
indirectly, five percent (5%) or more of any class of voting securities of the
Corporation.
D. The affirmative vote of the owners of four-fifths (4/5) of the
outstanding stock of the Corporation entitled to vote shall be required to
amend, alter or repeal this Article NINTH.
TENTH: The officers of the Corporation shall be chosen in such a manner,
shall hold their offices for such terms and shall carry out such duties as are
determined solely by the Board of Directors, subject to the right of the Board
of Directors to remove any officer or officers at any time with or without
cause.
ELEVENTH: A. The Corporation shall indemnify to the full extent
authorized or permitted by law (as now or hereinafter in effect) any person
made, or threatened to be made, a defendant or witness to any action, suit or
proceeding (whether civil or criminal or otherwise) by reason of the fact that
he, his testator or intestate, is or was a director or officer of the
Corporation or by reason of the fact that such director or officer, at the
request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No amendment or repeal of this Section A of Article ELEVENTH
shall apply to or have any effect on any right to indemnification provided
hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
B. A director of this Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the GCL.
Any repeal or modification of the foregoing paragraph shall not adversely
affect any right or protection of a director of the Corporation existing
hereunder with respect to any act or omission occurring prior to such repeal or
modification.
C. In furtherance and not in limitation of the powers conferred by
statute:
(i) the Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the provisions
of law; and
(ii) the Corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of
credit, surety bonds and/or other similar arrangements), as well as enter
into contracts providing indemnification to the full extent authorized or
permitted by law and including as part thereof provisions with respect to
any or all of the foregoing to ensure the payment of such amounts as may
become necessary to effect indemnification as provided therein, or
elsewhere.
9
TWELFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, repeal, alter,
amend or rescind the Bylaws of the Corporation. In addition, the Bylaws of the
Corporation may be adopted, repealed, altered, amended or rescinded by the
affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the
outstanding stock of the Corporation entitled to vote thereon.
THIRTEENTH: The Corporation reserves the right to repeal, alter, amend or
rescind any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, The Walt Disney Company. has caused its corporate seal
to be hereunto affixed and this Restated Certificate of Incorporation to be
signed by David K. Thompson, its Senior Vice President-Assistant General
Counsel, this 25th day of February, 1998.
THE WALT DISNEY COMPANY
/s/ David K. Thompson
----------------------------------------
David K. Thompson
Senior Vice President-Assistant General Counsel
10
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-3’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 5/14/98 | | | | | | | 10-Q |
| | 2/20/96 | | 1 |
| | 1/19/96 | | 1 |
| | 11/8/95 | | 4 |
| | 9/21/95 | | 1 |
| | 7/28/95 | | 1 |
| List all Filings |
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