Fill and Sign the 18 1080 Restated Certificate of Incorporation Justia Law Form

AMENDMENT AND RESTATEMENT OF CERTIFICATE OF INCORPORATION Pursuant to Oklahoma law, a corporation, whenever desired, may integrate into a single instrument all of the provisions of its certificate of incorporation which are then in effect and operative as a result of filings made with the Secretary of State and, at the same time, it may also, with the requisite shareholder approval, further amend in any respect its certificate of incorporation. Based upon this statutory authority, the Board of Directors has approved a resolution recommending that the Company's shareholders amend and restate the Company's Amended Certificate of Incorporation to, among other things, (i) authorize the issuance of 45,000,000 shares of Class A Common Stock, $0. 10 par value per share, which Class A Common Stock will be identical to the Company's outstanding Common Stock, except for certain restrictions on its transferability, and (ii) effect a one-for-two, thousand reverse split of the Company's Common Stock. A copy of the proposed Certificate of Incorporation of the Company, as amended and restated, is attached hereto as Exhibit "B". PLM International, Inc- 11/22/94 The Company's Net Operating Loss Carryforwards Background The Company had available federal income tax net operating loss carry-forwards (the "Carryforwards") at December 31, 1990 of approximately $44,300,000. The Carryforwards, which will expire between 1998 and 2005, can be used by the Company to offset future taxable income and capital gains and therefore constitute a valuable off-balance sheet asset of the Company. Based on the Company's unaudited financial statements for the nine months ending September 30, 1991, management estimates that the Company's operations from January 1, 1991 through September 30, 1991 have generated an additional net operating loss of approximately $1,000,000. The Company has not, however, requested an opinion from its legal counsel or its independent auditors with respect to the amount of Carryforwards available before or after the consummation of the transactions contemplated by the Agreements. Under Section 382 of the Code, if the Company undergoes an "ownership change", as defined in that Section, the Company's ability to use its Carryforwards will be limited or eliminated. An "ownership change" occurs when the aggregate increase in percentage of ownership of a company's capital stock by 5% holders thereof is more than fifty percentage points within any three-year period. Section 382 determines whether a person holds 5% of a company's capital stock by reference to the fair market value thereof. For the current testing period, the Company has determined that the aggregate increase in the percentage ownership by the Company's 5% holders has been in the range of approximately 37% to 40% after the sale of the Shares to REI and the issuance of the option to Mr. Swisher, leaving only an additional 10% to 13% increase available before the Section 382 limitations would apply. The Company's Board of Directors determined, with the assistance of its financial advisor, Janney Montgomery, that it was in the best interests of the Company and its shareholders to develop a course of action designed to limit additional increases in ownership of the Company's capital stock by the Company's 5% holders. After considering various alternatives, the Company's Board of Directors decided that the most expedient way to restrict increases in ownership by the Company's 5% holders was to authorize a new class of common stock which prohibits the transfer of such stock to any person who was, or who would thereby become, a 5% holder of the Company's capital stock and to seek a method by which such transfer-restricted common stock could be exchanged for the Company's outstanding Common Stock (which is not subject to any restrictions on transferability). Accordingly, subject to the approval by shareholders of the proposed amendment and restatement of the Company's Amended Certificate of Incorporation, the Company will: (i) effect a one-for-two thousand reverse split of its outstanding Common Stock; (ii) distribute as a dividend 1,999 shares of Class A Common Stock, which will be transfer-restricted, for each outstanding share of Common Stock; and (iii) offer to exchange one share of Class A Common Stock for each share of Common Stock remaining outstanding. The intended result of these actions is to assure that at least 99.95% of the Company's outstanding Common Stock will be restricted so as to prohibit transfers that would cause a limitation or elimination of the Com pany's ability to use the Carryforwards. These actions, however, will not result in any change in any shareholder's percentage ownership in the Company. Comparison of Class A Common Stock and Existing Common Stock The following table compares certain rights of the Class A Common Stock and the existing Common Stock. StockClass A Attribute Common Stock Common Stock Type of Security, Voting The shares of Common Stock are Identical to the Common Stock. Rights, and Preemptive equity securities of the Company Rights entitling the holders thereof to one vote per share on all matters submitted to shareholders. Shares of Common Stock do not have preemptive rights. Dividends Dividends on the Common Stock Identical to the Common Stock. will be paid as and when declared. Dividends are subject to any preferential rights of any preferred stock then outstanding. Liquidation Rights In the event of liquidation or Identical to the Common Stock. insolvency, each share of Common Stock will share ratably in the assets remaining after the payment of all debts and other remaining claims of creditors, subject to any liquidation preference of any preferred stock then outstanding. Conversion Rights The Common Stock is not Identical to the Common Stock. convertible into shares of any other equity security of the Company. Trading Market The Common Stock is currently It is intended that the Class A traded on the Exchange, but it is Common Stock will be traded on expected that such trading will not the Exchange following the continue following the proposed proposed stock dividend. reverse stock split. Transferability No restrictions. Transfer prohibited to a person who is, or would thereby become, a holder of 4.75% or more of the fair market value of the Company's capital stock. Redemption Rights There are no redemption rights Identical to the Common Stock. applicable to the Common Stock. The foregoing table is qualified in its entirety by reference to the provisions of the proposed Certificate of Incorporation, as amended and restated, set forth in Exhibit “B”. See "The Reverse Split" for information regarding the issuance of new certificates of Common Stock to replace the old certificates, which will become void, and the issuance of certificates representing the Class A Common Stock. Trading in Common Stock and Class A Common Stock The Common Stock is currently traded on the Exchange. Following the reverse split and exchange offer, any shares of Common Stock remaining outstanding after the issuance of new certificates therefor will continue to be freely transferable. However, it is expected that the Common Stock will not be eligible for continued tradi ng on the Exchange, and no assurance can be given that an active public trading market will exist for the Common Stock. If the Common Stock becomes eligible for deregistration under the Securities Exchange Act of 1934 (the "1934 Act"), the Company intends to deregister the Common Stock. The Company intends to register its Class A Common Stock under the 1934 Act and, following the stock dividend, it is expected that the Class A Common Stock will be traded on the Exchange. It is the current intention of the Company not to effect the reverse split or the stock dividend until the Class A Common Stock is registered under the 1934 Act and accepted for inclusion by the Exchange. It is the Company's understanding that the Exchange will accept the Class A Common Stock for listing in the event that the shareholders (i) ra tify the issuance of the Shares to REI and the other transactions consummated in connection therewith and (ii) approve the amendment and restatement of the Company's Amended Certificate of Incorporation as proposed herein. Authorization of the Class A Common Stock General As part of the amendment and restatement of the Certificate of Incorporation, Articles Fifth and Sixth of the Company's Amended Certificate of Incorporation will be amended (the "Section 382 Amendment") to authorize the issuance of up to 45,000,000 shares of Class A Common Stock. The transferability limitations applicable to the Class A Common Stock would generally prohibit any person from acquiring (other than from the Company) any Class A Common Stock of the Company or any rights to acquire Class A Common Stock if the person was, or would thereby become, a holder of 4.75% or more of the fair market value of the Company's issued and outstanding capital stock, unless the Company's Board of Directors consents to the acquisition and, if requested by the Board of Directors, after receiving an opinion of counsel as to the effect of the transfer on the Carryforwards. These restrictions on transfers would remain in effect until the earlier of January 1, 2006, the date as of which the Company no longer has any unutilized Carryforwards, or the date after which Section 382 could no longer adversely affect the Carryforwards. In all other respects, the Class A Common Stock will be identical to the Company's existing Common Stock. If the amendment and restatement of the Company's Certificate of Incorporation is approved and the Class A Common Stock is accepted for listing by the Exchange, as soon as practicable following the Special Meeting the Company will effect the reverse split and distribute the stock dividend. THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL AND ADOPTION OF THE AMENDMENT AND RESTATEMENT OF THE COMPANY'S CERTIFICATE OF INCORPORATION IN ORDER TO REDUCE THE RISK OF AN OWNERSHIP CHANGE THAT WOULD RESULT IN THE DISALLOWANCE OR LIMITATION OF THE CARRYFORWARDS.The Section 382 Amendment is set forth in its entirety in Exhibit *B" to this Proxy Statement. This discussion of this amendment is qualified in its entirety by reference to the provisions of the proposed Certificate of Incorporation, as amended and restated, set forth in Exhibit 'B*. A vote for approval and adoption of the amendment and restatement of the Company's Amended Certificate of Incorporation may affect a shareholder's ability to transfer his shares. Reasons for the Section 382 Amendment At December 31, 1990, the Company had available Carryforwards of approximately $44,300,000 which will expire between 1998 and 2005. The Carryforwards are a valuable asset of the Company because they may be used to offset taxable income of the Company at any time before their expiration. As a result, federal income tax liabilities will not reduce current operating taxable income of the Company which is availabl e for use in Company operations, to retire Company indebtedness, or for other business purposes. Section 382 of the Code provides that, if the Company undergoes an "ownership change", its ability to use the Carryforwards in the future may be limited or terminated. An "ownership change" occurs when the aggregate cumulative increase in the percentage ownership of the capital stock of a company by 5% holders within any three-year period is more than fifty percentage points. For this purpose, Section 382 generally defines stock to include all issued and outstanding stock, except certain preferred stock, and all stock that may be acquired pursuant to warrants, options, rights to purchase stock, rights to convert other instruments into stock, and options or other rights to acquire any such interest. The existing voting Preferred Stock of the Company is considered stock for purposes of Section 382, as it does not meet certain criteria required for exclusion from the Section 382 percentage ownership change computation. The Company's existing Common Stock is, of course, also included in the capital stock tested in determining whether an ownership change has occurred. The Section 382 Amendment would only apply to the Class A Common Stock of the Company that is to be distributed as a part of the stock dividend or exchanged pursuant to the exchange offer. The Class A Common Stock will be identical in all respects to the current Common Stock, except for the transfer restrictions hereinafter described. Under Section 382, the Company's use of the Carryforwards would be limited only if the aggregate cumulative increase in the percentage ownership of the capital stock of the Company by persons holding five percent or more of such stock (5% Holders") in any testing period is more than 50%. Whether a person is a 5% Holder is determined by reference to the fair market value of the stock held by such person. All shareholders who are not 5% Holders individually are aggregated into one or more public groups, each of which is considered to be a 5% Holder. Ownership of stock is generally attributed to the ultimate individual beneficial owner, and ownership by nominees, corporations, partnerships, trusts or other entities generally is disregarded (except to the extent used to identify different groups). The Section 382 Amendment, accordingly, is generally designed to prohibit all transfers to persons holding or who would thereafter hold 4.75% or more of such stock, either directly or constructively. The Company bas determined that, in the current testing period, there has been an aggregate increase in percentage ownership of its capital stock by 5% Holders in the range of approximately 37% to 40% leaving only an additional 10% to 13% increase available before the Section 382 limitations would apply. In addition, although the Company is not aware of any specific transactions, there may be transactions in the future that the Company would be unable to restrict under this amendment, or that the Board of Directors may determine are in the best interests of the Company and thus permit, even though such transactions may have the effect of using some of the available 10% to 13% increase. If an ownership change occurs within the meaning of Section 382 of the Code, the amount of Carryforwards the Company may use to offset income in any future taxable year would be limited to an amount determined by multiplying the fair market value of the Company's outstanding capital stock on the change date by the "long- term tax-exempt rate" which is published monthly by the Internal Revenue Service (the "IRS"). If a corporation has substantial non-business assets on the date of an ownership change, the fair market value of its capital stock for this purpose would be reduced by all or a substantial portion of the value of its non-business assets. Even without taking into account the possible reduction in value attributable to the existence of any non-business assets, if an ownership change had occurred at August 15, 1991, use of the Carryforwards would have been limited to approximately $1,572,500 per year. The existence of non-business assets would possibly make the annual Section 382 limitation smaller. Moreover, if an ownership change were to occur and if the Company no longer conducted any of its significant historic lines of business, or no longer used a significant portion of its historic business assets in a business during the two-year period after the ownership change, the Company's ability to use the Carryforwards would terminate entirely. Either consequence would have a significant adverse impact on an asset (the Carryforwards) that the Company believes has substantial potential value. This potential value will be realized if the Company has substantial taxable income in future years. For these reasons, the Board of Directors believes it is appropriate and necessary to adopt the Section 382 Amendment to help preserve the availability of the Carryforwards. Effect of the Section 392 Amendment The Section 382 rules apply only to transfers to or from 5% Holders. The provisions of the Section 382 Amendment would prohibit any person from acquiring Class A Common Stock other than from the Company if that person is, or would thereby become, a holder of 4.75% or more of the fair market value of the Company's outstanding capital stock without the Board of Directors' consent. For purposes of the Section 382 Amendment, the terms "person" and "transfer" are defined broadly to reach virtually any transaction that might result in a transfer of any interest in shares of Class A Common Stock. The calculation of the percentage of capital stock actually and/or constructively owned by a transferee derives from Section 382, and the 4.75% ownership limitation is designed to prohibit both transfers to existing 5% Holders and transfers that could result in the transferee becoming a 5% Holder. The use of a 4.75% limitation rather than a 5% limitation is designed to provide a margin of safety in avoiding an ownership change. The transfer restrictions will expire on the earlier of January 1, 2006, the date on which the Company no longer has any unutilized Carryforwards, or the date after which Section 382 could no longer adversely affect the Carryforwards. All acquisitions of Class A Common Stock or rights to acquire Class A Common Stock by a holder (or someone who would become a holder pursuant to such transfer) of 4.75% or more of the Company's outstanding capital stock will be subject to the transfer restrictions of the Section 382 Amendment, although pursuant to the Section 382 Amendment, the Board of Directors will have the authority to consent to such transactions. The certificates for the Class A Common Stock will bear a legend conspicuously identifying the fact that transfer of Class A Common Stock is restricted, and will also have a detailed description of the transfer restrictions printed on the reverse side.The transfer restrictions operate to make any attempted transfer in violation of the restrictions void ab ini tio, so that the transferee will not be recognized by the Company as having any ownership interest, including the right to vote, receive dividends or receive distributions on liquidation in the Class A Common Stock purported to be transferred. The transferor will continue to be treated as the owner of such Class A Common Stock for all purposes. Under the terms of the Section 382 Amendment, the Board of Directors is authorized to establish guidelines as to the application and implementation of the transfer restrictions. It is contemplated that such guideli nes will generally conform to the application of Section 382 and will also contain various administrative provisions. However, because Section 382 contains many ambiguities and uncertainties, and to permit the Board of Directors flexibility in applying the Section 382 Amendment in a manner that may not conform to Section 382, the guidelines adopted by the Board of Directors may be more or less stringent than the specific requirements of Section 382. In addition, under the terms of the Section 382 Amendment, the Board of Directors has the power to make certain exceptions to, or establish guidelines in the future to include or exclude certain transactions from, the transfer restrictions. The Board of Directors intends to consider any such proposed transfers individually and determine at such time whether it is in the best interests of the Company to permit such a transfer. In making this determination, the Board of Directors will consider all factors it believes to be relevant at the time, including the effect of the transfer on the aggregate percentage increase in ownership of capital stock by 5% Holders, any benefits to the Company of the transfer, and any disadvantages to the Company of the transfer. Because the Board of Directors intends to consider each transaction individually, there is a possibility that the proposed restrictions on transfer may be inconsistently applied to similar transactions. It should be noted that, although Section 382 applies both to transfers to and transfers from 5% Holders, the Section 382 Amendment would only apply to transfers to holders of 4.75% or more of the Company's capital stock. Thus, technically, under the Section 382 rules, transfers from persons currently holding or treated as holding 5% or more of the Company's capital stock to holders of less than 5% of the Company's capital stock not already included during the applicable testing period would count against the fifty percentage point limit that triggers the application of Section 382. The Company has decided that it is unnecessary to apply the restrictions on transfers from holders of 5% or more of its capital stock to holders of less than 5% of its capital stock because the Company's 5% Holders are aware of the Section 382 limitations and the potential financial consequences of an ownership change. Effect on Holders of Less than 2,000 Shares Fractional shares of Common Stock will not be issued in the reverse split due to the cumbersomeness of fractional shares and the resulting lack of liquidity for fractional shares. Instead, persons who own less than 2,000 shares of Common Stock before the reverse split will receive, in lieu of such fractional shares of Common Stock, the same number of shares of Class A Common Stock as they previously owned of Common Stock and will not receive any additional Class A Common Stock by way of the stock dividend. Because holders of less than 2,000 shares of Common Stock before the reverse split will not hold any shares of Common Stock after the reverse split, the subsequent stock dividend will not apply to them. While technically different treatment will apply to various shareholders, based on the number of shares of Common Stock that a shareholder owns prior to the reverse split, it is not intended thereby to give the larger holders of the Common Stock any substantive advantage. Following the reverse split, there will be approximately 165 holders of Common Stock (assuming no transfers after the Record Date). The Company intends to delist the Common Stock from the American Stock Exchange and to deregister it under Section 12 of the 1934 Act. The purpose of all these measures is to protect the Carryforwards by minimizing trading in the Common Stock (which will not be subject to the transfer restrictions) subsequent to effectiveness of the amendment and restatement of the Company's Amended Certificate of Corporation and maximizing trading in the transfer-restricted Class A Common Stock, which the Company intends both to list on the Exchange and to register under the 1934 Act. It is the Company's understanding that the Exchange will accept the Class A Common Stock for listing in the event that the shareholders (i) ratify the issuance of the Shares to REI and the other transactions consummated in connection therewith and (ii) approve the amendment and restatement of the Company's Amended Certificate of Incorporation as proposed herein.Oklahoma law does not permit the Company to impose transfer restrictions on holders of outstanding Common Stock absent such holder's assent thereto (either by agreement or an affirmative vote for such restrictions). Practicality obviously precludes the Company from negotiating such an agreement with each holder of Common Stock. The amendment and restatement of the Company's Amended Certificate of Incorporation permits the Company to avoid this burden by substituting the Class A Common Stock as the primary capital stock of the Company in lieu of the Common Stock. See, "Method of Effecting Proposed Stock Transfer Restrictions" below. Once the amendments have taken effect, it is expected that the remaining Com mon Stock will constitute an insignificant residual component of the Company's capital stock, in which, despite its technical unrestricted transferability, there will occur limited trading. Thus, both small and large hol ders of Common Stock will, after the effectiveness of the Section 382 Amendment, be in substantially the same position of looking to the Class A Common Stock for liquidity. Method of Effecting Proposed Stock Transfer Restrictions If the Section 382 Amendment is approved and adopted by the Company's shareholders and the Class A Common Stock is accepted for listing by the Exchange, the Board of Directors has proposed that the transfer restrictions embodied in the Section 382 Amendment be implemented through the reverse split, the stock dividend and the exchange offer. See "The Reverse Split' below. Section 1055C of the Oklahoma General Corporation Act (the "Act") provides, in pertinent part, that "[a] restriction on the transfer of securities of a corporation is permitted by the provisions of this section if it: ... (4) prohibits the transfer of the restricted securities to designated persons or classes of persons, and such designation is not manifestly unreasonable." In addition, Section 1055E of the Act validates other "lawful" restrictions on the transfer or registration of transfer of securities and Section 1055D of the Act provides, in pertinent part, that "[any restriction on the transfer of the shares of a corporation for the purpose ... of maintaining any ... tax advantage to the corporation is conclusively presumed to be for a reasonable purpose.” Section 1055B of the Act provides that "[n]o [transfer] restriction so imposed shall be binding with respect to securities issued prior to the adoption of the restriction unless the holders of the securities are parties to an agreement or voted in favor of the restriction." As described above, the Carryforwards constitute a valuable tax advantage to the Company. The Section 382 Amendment has been proposed for the sole purpose of maintaining this tax advantage. Furthermore, the Company believes that the transfer restrictions contained in the Section 382 Amendment are not manifestly unreasonable, as that term is utilized in Section 1055C of the Act. Therefore, the Company believes that any shareholder who receives Class A Common Stock (whether or not he votes for or otherwise consents to the Section 382 Amendment) will be bound by the transfer restrictions contained in the Section 382 Amendment, notwithstanding Section 1055B of the Act, since none of the shares of Class A Common Stock will be issued and outstanding prior to the adoption of the Section 382 Amendment and, since the restrictions will be noted conspicuously on the certificates representing the stock, the terms of the restrictions will be valid and enforceable under Oklahoma law, subject to applicable bankruptcy, moratorium or other similar laws and general principles of equity. Other ConsiderationsAlthough the Board of Directors has concluded that the potential benefits of the Section 382 Amendment outweigh the possible disadvantages, some shareholders may find the Section 382 Amendment disadvantageous in certain respects. Adoption of the Section 382 Amendment may have the effect of reducing the marketability of the Company's Class A Common Stock because it will discourage acquisitions involving large blocks of the Company's Class A Common Stock. Also, there may be a significant impact on the price range of the Common Stock due to the deregistration or delisting of such stock, and the Class A Common Stock may not trade at a price commensurate with the pre-split Common Stock, or otherwise be as liquid, due to the imposition of the transfer restrictions. Since the holders of 2,000 or more pre-split shares of Common Stock would, after the reverse split and stock dividend, end up owning one share of Common Stock and 1,999 shares of Class A Common Stock (or multiples thereof), it is also possible that higher brokerage commissions may be payable if sales are not effected in round lots. In the view of the Company, however, such risks are outweighed by the risk that the loss of the Carryforwards would have a severe negative impact on the Company's future value. Potential Antitakeover Effects of the Amendment Although the Section 382 Amendment is being proposed for the sole purpose of helping to preserve the Carryforwards, the Section 382 Amendment may have the effect of discouraging transactions that would involve an actual or potential change of control of the Company. The Section 382 Amendment specifically prohibits transactions involving acquisitions of Class A Common Stock by a person who is, or would thereby become, a holder of 4.75% or more of the Company's capital stock, with the result that the Board of Directors, in its discretion, would be able to prevent any future takeover attempt. Therefore, some shareholders may find the Section 382 Amendment disadvantageous to the extent that it might discourage or prevent tender offers or accumulations of substantial blocks of shares in which shareholders might receive a substantial premium above market value, and might thereby foreclose shareholders from the opportunity to dispose of their stock at a premium over market value. Similarly, because the Section 382 Amendment is intended to operate to prevent the accumulation of 4.75% or more of the Company's capital stock, it may discourage the assumption of control by third parties and may make the removal of incumbent management more difficult, even though such action may be desired by a majority of the shareholders. Although the Section 382 Amendment limits the accumulation of large holdings of Class A Common Stock, holders of a majority of the Company's voting shares will continue to have the power to replace any or all of the directors in accordance with the provisions of the Act. Although the replacement of directors will be more difficult, in the opinion of the Board of Directors, such disadvantages are outweighed by the fundamental importance to the Company's shareholders of taking actions designed to protect the availability of the Carryforwards. The Board of Directors is not aware of any efforts to acquire control of the Company, and has no present intention to propose any other provisions designed to inhibit a change of control. Amendment No Guarantee of the CarryforwardsAlthough the Section 382 Amendment is intended to preserve the availability of the Carryforwards, it may not be effective in preventing all transfers that might result in an ownership change for purposes of Section 382. Section 382 is an extremely complex provision with respect to which there are many uncertainties. Many issues that may arise under Section 382 have not been definitively addressed by the IRS or the courts. Section 382 apparently applies to all transfers of a Company's stock to or from a 5% Holder, whether the transfer is of record or merely beneficial. The Section 382 Amendment prohibits any transfers that would involve the acquisition of any Class A Common Stock by any person who is or would thereby become a holder of 4.75% or more of the Company's capital stock, whether the transfer is beneficial or of record. The Company has not requested a ruling from the IRS regarding the effectiveness of the Section 382 Amendment and, therefore, there can be no assurance that the IRS will agree that such a prohibition is effective for purposes of Section 382. The Board of Directors nevertheless believes that the adoption of the Section 382 Amendment is in the best interests of the Company, because it discourages and most likely effectively prevents transfers which could lead to an ownership change. An ownership change could also occur in connection with a transfer approved by the Board of Directors. The Board of Directors is not aware of any person intending to become a 5% Holder. Nevertheless, if in the future, the Board of Directors determines to permit a transfer from or to any 5% Holder because the transfer would be advantageous to the Company and its shareholders regardless of its impact on the Carryforwards, that transfer or later transfers could result in an ownership change that would limit or eliminate the use of the Carryforwards. The Board of Directors intends to consider any such potential transfers individually and determine at the time whether it is in the best interests of the Company, in light of all factors then preva iling, to permit any transfers from or to a 5% Holder. Based on the Company's federal income tax returns for taxable years ending on and before December 31, 1990 and the Company's determination that an "ownership change" within the meaning of Section 382 has not occurred, management believes that, at December 31, 1990, the Company had available Carryforwards in the approximate amount of $44,300,000 and the use of these Carryforwards by the Company is not currently limited or restricted by Section 382. However, the Company has not requested an opinion from its legal counsel or its independent auditors with respect to the amount of Carryforwards available or the effect of Section 382 on the use of the Carryforwards. Furthermore, there can be no assurance that, upon audit, the IRS would agree that all of the Carryforwards are allowable to offset future taxable income and capital gains of the Company. Ile statute of limitations applicable to the IRS's attempted disallowance of any Carryforwards would generally expire three years after the date on which the federal income tax return claiming the benefit of t he Carryforwards is filed. The Reverse Split General In the event the proposed Section 382 Amendment is approved by the shareholders and the Class A Common Stock is accepted for listing by the Exchange, the Company would also effect the proposed reverse split. The Board of Directors has approved the reverse split as part of the means of implementing the transfer restrictions on the Class A Common Stock, the purpose of which is to preclude an ownership change within the meaning of Section 382 of the Code and thereby seek to prevent any limitation on the use of the Carryforwards. See "The Company's Net Operating Loss Carryforwards." In the event either (i) the Section 382 Amendment is not approved by the shareholders or (ii) the Class A Common Stock is not accepted for listing by the Exchange, the Company does not intend to effect the proposed reverse split. The Reverse Split Prior to the distribution of the 1,999:1 share dividend on the Common Stock, the Company will effect the reverse split of the existing Common Stock whereby each share of Common Stock outstanding will, except as noted below regarding fractional interests, be combined into and become 1/2,000th of a share of existing Common Stock. Following the reverse split and the exchange offer, each outstanding certificate representing shares of Common Stock will be void, and the Company will mail to each holder of Common Stock a certificate representing the number of whole shares of Common Stock held by such holder following the reverse split as well as shares of Class A Common Stock to be issued pursuant to the stock dividend. No certificates representing fractional interests in Common Stock, however, "I be issued and, in lieu thereof, each fractional interest will be reclassified into and become that number of shares of Class A Common Stock equal to the product of 2,000 multiplied by such fraction. In other words, if a shareholder held 2,000 pre-split shares of Common Stock, such shareholder would own after the reverse split one share of Common Stock and would receive, by virtue of the stock dividend, 1,999 shares of Class A Common Stock. If, however, a shareholder held 1,000 pre-split shares of Common Stock, such shareholder would not receive, in the reverse split, a fractional share equal to 1,000/2,000 of one share of Common Stock plus a stock dividend but would instead receive 1,000 shares of Class A Common Stock in the reverse split. Since such holder would no longer hold any shares of Common Stock after the reverse split, the stock dividend would not apply to such shareholder. Federal Income Tax Consequences The Company has been advised by counsel that no gain or loss should be recognized for federal income tax purposes by the Company or by any holder of Common Stock or existing Preferred Stock, regardless of the number of shares owned, because of the reverse split or the stock dividend. Furthermore, the aggregate tax basis of the shares of Common Stock and Class A Common Stock received by a shareholder who is a citizen or resident of the United States pursuant to the reverse split and the stock dividend should equal the aggregate tax basis of the shareholder's Common Stock prior to the reverse split and the stock dividend. That aggregate tax basis would then be allocated proportionately among the shares of Common Stock and/or Class A Common Stock owned by the holder after completion of the reverse split and the stock dividend. THE FOREGOING. DISCUSSION IS BASED ON LAWS, REGULATIONS, RULINGS AND JUDICIAL DECISIONS NOW IN EFFECT, ALL OF WHICH ARE SUBJECT TO CHANGE, WHICH MAY BE RETROACTIVE. THE FEDERAL INCOME TAX CONSEQUENCES TO ANY PARTICULAR TAXPAYER MAY BE AFFECTED BY MATTERS NOT DISCUSSED ABOVE. FOR EXAMPLE, CERTAIN TYPES OF INVESTORS (INCLUDING LIFE INSURANCE COMPANIES, TAX-EXEMPT ORGANIZATIONS AND FOREIGN TAXPAYERS) MAY BE SUBJECT TO SPECIAL RULES THAT ARE NOT ADDRESSED IN THE FOREGOING PARAGRAPH. THIS PROXY STATEMENT DOES NOT ADDRESS ANY TAX CONSEQUENCES OTHER THAN THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES WHICH MAY EFFECT A SHAREHOLDER. EACH SHAREHOLDER SHOULD CONSULT HIS OR HER OWN TAX ADVISORS AS TO THE FEDERAL, STATE AND LOCAL TAX CONSEQUENCES OF THE SECTION 382 AMENDMENT TO SUCH SHAREHOLDER.The Exchange Offer Promptly following the reverse split and the stock dividend, the Company intends to make an exchange offer (the "Exchange Offer") to exchange one share of Class A Common Stock for each outstanding share of Common Stock. Only shareholders who hold 2,000 or more shares of Common Stock prior to the implementation of the reverse split will receive the Exchange Offer. This Proxy Statement does not consti tute the Exchange Offer. Instead, the Exchange Offer will be made only when the Company mails the Exchange Offer to each then holder of Common Stock. Following the reverse split, there will be approximately 165 holders of Common Stock holding approximately 10,000 shares of Common Stock (assuming no transfers after the Record Date) . The purpose of the Exchange Offer is to allow these shareholders to exchange their remaining shares of Common Stock, which at the time of the Exchange Offer will no longer be traded on the Exchange, for an equal number of shares of Class A Common Stock, which at the time of the Exchange Offer will be traded on the Exchange. In the event the Exchange Offer is accepted by all shareholders entitled to participate, each shareholder will hold the same number of shares of Class A Common Stock which he, she or it previously owned of Common Stock. Subject to the conditions to be set forth in the Exchange Offer and the accompanying Letter of Transmittal, the Exchange Offer will continue until the expiration thereof, which is expected to be 5:00 p.m., Oklahoma City, Oklahoma time, on April 30, 1992 (the "Expiration Date"). Under the Exchange Offer, shareholders who wish to exchange shares of Common Stock for shares of Class A Common Stock and who comply with the terms of the Exchange Offer, together with the Letter of Transmittal and any other required documents, will have certificates for shares of Class A Common Stock mailed to them by the Exchange Agent as soon as practicable after the Expiration Date. Subject to the terms and conditions of the Exchange Offer, properly tendered shares of Common Stock will be accepted on the Expiration Date. All tenders of shares of Common Stock may be withdrawn at any time prior to the Expiration Date. Shares of Common Stock exchanged for shares of Class A Common Stock will be restored to the status of authorized but unissued shares of Common Stock. The Board of Directors does not, however, contemplate reissuing any of such shares prior to the date on which such reissuance would not adversely affect the Company, whether under the Section 382 rules or otherwise. The Company will have the right to extend the Exchange Offer by oral or written notice from the Company to the Exchange Agent at any time or from time to time on or prior to the date then fixed for the expiration of the Exchange Offer. Public announcement of any extension of the Exchange Offer will be timely made by the Company but, unless otherwise required by law or regulation, the Company will not have any obligation to communicate such public announcement other than making a release to the Dow Jones News Service. During any extension of the Exchange Offer, all shares of existing Common Stock that were previously tendered pursuant to the Exchange Offer will remain subject to the Exchange Offer and may be accepted for exchange by the Company. At this time, the Company has no plans to repurchase any shares of Common Stock not exchanged for shares of Class A Common Stock in accordance with the terms of the Exchange Offer. Shareholders who choose not to exchange shares of Common Stock for shares of Class A Common Stock in accordance with the terms of the Exchange Offer will be free to exercise all rights presently associated with the ownership of shares of Common Stock including, without limitation, the right to vote; provided, however, that following the reverse split and stock dividend it is expected that the Common Stock will not be traded on the Exchange and no assurance can be given that an active public trading market will exist for the Common Stock. Federal Income Tax Consequences of the Exchange Offer The Company has been advised by counsel that no gain or loss will be recognized for federal income tax purposes by the Company or by any holder of existing Common Stock who exchanges such stock for new Class A Common Stock pursuant to the Exchange Offer. Shareholders, however, should consult their own tax advisors concerning any state, local or other tax consequences of the proposed transactions. Other Amendments In addition to the amendments discussed above, the proposed Certificate of Incorporation, as amended and restated, also contains certain other amendments to the current Amended Certificate of Incorporation. These amendments include extending the duration of the Company's existence from fifty (50) years to perpetual, clarifying the corporate law applicable to the Company, providing for compromises and arrangements between the Company and its creditors and/or shareholders in certain circumstances, and providing for the indemnification of the officers and directors of the Company to the fullest extent authorized by law. The proposed Certificate of Incorporation, as amended and restated, also deletes certain provisions of the current Amended Certificate of Incorporation of the Company which, as a result of the enactment of the Act in 1986, the Company believes are superfluous and/or unenforceable. Furthermore, the proposed Certificate of Incorporation, as amended and restated, deletes the numerous stated objects and purposes of the Company and, in lieu thereof, merely provides that the Company may engage in any lawful act or activity for which corporations may be organized under the Act. Reasons for Amendment Providing for Compromises and Arrangements Between the Company and its Creditors and/or ShareholdersARTICLE ELEVENTH of the proposed Certificate of Incorporation, as amended and restated, implements the optional charter provision authorized by 18 Okla. Stat. §1006 relating to a compromise or arrangement between the Company and its creditors and/or shareholders. This provision provides that any creditor or shareholder of a corporation, or its receiver, may apply to any court of equitable jurisdiction within the State of Oklahoma for an order directing a meeting of the creditors of the corporation and/or of the shareholders of the corporation, as the case may be, to consider any proposed compromise between the corporation and such creditors and/or shareholders. At such a meeting, if a majority of creditors and/or shareholders representing 3/4ths in value of the creditors and/or shareholders agree to any compromise, arrangement or reorganization, such compromise, arrangement or reorganization will be binding on the corporation and on all the creditors and/or on all the shareholders. 18 Okla. Stat. §1006 expressly authorizes a corporation to include a provision such as ARTICLE ELEVENTH in its certificate of incorporation. The purpose of this type of provision is to provide a procedure whereby the corporation and its creditors and/or shareholders could, if necessary, implement a proposed corporate reorganization outside of bankruptcy without the necessity of obtaining the consent of each and every creditor and/or shareholder, as the case may be. It has been held that in the absence of such a provision, a voluntary reorganization of a corporation outside of bankruptcy can be effected only with the consent or agreement of all the creditors and/or shareholders of a corporation. Thus, absent a provision such as ARTICLE ELEVENTH, a single creditor, regardless of the size of its debt, or a single shareholder, regardless of his proportionate ownership percentage, would be able to defeat any proposed arrangement, compromise or reorganization, regardless of the relative fairness and equity of such arrangement, compromise or reorganization. The Board of Directors believes that the adoption of such a provision is in the best interest of the Company and its shareholders and, as such, has chosen to include this optional charter provision in the proposed Certificate of Incorporation, as amended and restated. Reasons For Amendment Clarifying Applicable Corporate Law Effective November 1, 1986, the Oklahoma Legislature enacted the Act, which is based on the Delaware General Corporation Law. The Delaware General Corporation Law has been interpreted by courts on numerous occasions resulting in a more substantial body of clarifying decisional law than is present in most jurisdictions. The availability of this legal precedent will aid in the interpretation of the Act. The Board of Direc tors believes that the provisions of the Act are generally more favorable to the Company and its shareholders than the provisions set forth in the Oklahoma Business Corporation Act ("Prior Law"). The Act provides that, with certain exclusions, it applies to every Oklahoma corporation in existence on its effective date. However, the Act also provides that all duties, restrictions, liabilities and penal ties imposed or required by laws enacted prior to the adoption of the Act are not impaired, diminished or affected by the Act. As this provision in the Act could be interpreted under certain circumstances to limit the application of the Act to existing corporations, such as the Company, there is a degree of uncertainty concerning the application of the Act to the Company. The Board of Directors believes that it is important for purposes of corporate governance and planning to clarify the corporate law applicable to the Company. For these reasons, the Board of Directors believes that amendment and restatement of the Amended Certificate of Incorporation under the Act will be beneficial. Accordingly, the Board of Directors has recommended that the proposed Certificate of Incorporation, as amended and restated, expressly provide that the corporate law applicable to the Company shall be the Act in all circumstances. Significant Differences between the Act and the Prior Law There are numerous differences between the Act and the Prior Law. However, under both the Act and the Prior Law, the structure and actions of corporations generally are internally controlled by the corporation's certific ate of incorporation (or articles of incorporation), amendment of which generally requires shareholder approval, and bylaws. 'Me proposed Certificate of Incorporation, as amended and restated, a copy of which is attached hereto as Exhibit "B", has been prepared with the view towards retaining many of the current substantive provisions of the current Amended Certificate of Incorporation of the Company except as discussed herein. A copy of the current Amended Certificate of Incorporation may be obtained by written request to the Company, I-40 and Morgan Road, Oklahoma City, Oklahoma 73101, Attention: Thane Swisher, and at the Special Meeting. Copies of both the Act, 18 Okla. Stat. §§1001 et. seq. and the Prior Law, 18 Okla. Stat. (1981) §§1.1 et. seq. are generally available. Any evaluation of the shareholders' rights under different statutes and under different certificates of incorporation (or articles of incorporation) involves a complex set of judgments. Each shareholder is encouraged to compare the Amended Certificate of Incorporation in the context of the Prior Law with the proposed Certificate of Incorporation, as amended and restated, in the context of the Act. The most significant differences between the Act and the Prior Law relate to dissenters' or appraisal rights, payments of dividends, stock repurchases, preferred stock issuance, board committees, loans to officers and directors, payment for stock in promissory notes and shareholder consents. No representation is made as to the completeness of these listed differences or to the relative significance of these listed differences. Reasons for Amendment Providing for Indemnification of Officers and Directors ARTICLE TWELFTH of the proposed Certificate of Incorporation, as amended and restated, provides that the Company shall indemnify the officers and directors of the Company to the fullest extent permitted by law. In addition, ARTICLE TWELFTH provides that a person serving at the request of the Company as an officer or director of another corporation, partnership, joint venture, trust or other enterprise will also be indemnified to the fullest extent permitted by law. The Company's Amended Certificate of Incorporation currently contains no provisions concerning the indemnification of officers and directors. However, since 1987, the Bylaws of the Company have provided for the indemnification of the officers and directors of the Company to the extent permitted under the Act. Set forth below is a summary of the provisions of the Act regarding indemnification of officers and directors. 1. The Act permits a corporation to indemnify its officers and directors for attorneys' fees and other expenses as well as judgments or amounts paid in settlement in civil cases brought by a third party. A person seeking indemnification must have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation in respect to the claim made against him. In criminal cases, the offi cer or director may be indemnified for fines and costs provided that, in addition to the standard of conduct set forth in the preceding sentence, he did not have reasonable cause to believe his conduct was unlawful. 2. The Act also permits a corporation to indemnify its officers and directors for expenses and attorneys' fees incurred by an officer or director in connection with an action brought by or in the right of the corporation provided that the officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. However, notwithstanding anything to the contrary in the preceding sentence, no indemnification is permitted in respect of any claim, issue or matter as to which suc h officer or director is adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought has determined upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnit y for such expenses which the court shall deem proper. 3. No indemnification may be made by a corporation under paragraphs 1 or 2 above unless ordered by a court or unless a determination has been made that indemnification of the officer or director is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraph I or 2 above. Such determination must be made (i) by the Board of Directors by majority vote of a quorum consisting of directors who are not parties to such action, suit or proceeding, or (ii) by independent legal counsel in a written opinion, or (iii) by the shareholders. 4. The Act also provides that, to the extent that an officer or director of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraph I or 2 above, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses, including attorneys' fees, actually and reasonably incurred by him in connection therewith. 5. A corporation is also authorized to pay expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the officer or director to repay such amount if it is ultimately determined that he is not entitled to be indemnified by the corporation. The 'undertaking to repay" does not have to be secured. Furthermore, a corporation is not required to condition its acceptance of the undertaking to repay upon the financial ability of the officer or director to repay the corporation. 6. Unless otherwise provided when authorized or ratified, the indemnification and advancement of expenses provided by or granted by a corporation continues as to a person who has ceased to be an officer or director and inures to the benefit of his heirs, executors and administrators. Under current Oklahoma law, regardless of whether the proposal to amend and restate the Company's Amended Certificate of Incorporation is approved, the Company is required to indemnify its officers and directors against expenses, including attorneys fees, actually and reasonably incurred by him in connection with his successful defense of any action, suit or proceeding referred to in paragraphs 1 and 2 above, or in defense of any claim, issue or matter therein. In the event that the proposal to amend and restate the Company's Amended Certificate of Incorporation is approved by the shareholders, the Company would be required to indemnify its officers and directors under the circumstances described in paragraphs 1, 2 and 3 above. In addition, the Company would be authorized to advance expenses incurred by an officer or director as described in paragraph 5 above. Finally, in the event the Oklahoma law regarding the indemnification of officers and directors is amended or otherwise changed, the Company would be required to indemnify its officers and directors to the fullest extent permitted by the new law. The Board of Directors of the Company believes that ARTICLE TWELFTH is in the best interest of the Company's shareholders, as well as the Company. This amendment will assist in enhancing the Company's ability to attract and retain qualified individuals to serve as officers and directors by assuring them tha t they will be indemnified to the fullest extent permitted by applicable law. The Board believes tha t the diligence exercised by officer and directors stems primarily from their desire to act in the best interests of the Company and not by fear of monetary damage awards. Consequently, the Board of Directors believes that the level of scrutiny and care exercised by officers and directors will not be lessened by the inclusion of ARTICLE TWELFTH in the proposed Certificate of Incorporation, as amended and restated. Furthermore, as a result of the indemnification provisions currently contained in the Amended and Restated Bylaws, the Board of Directors believes that the Company is already obligated to indemnify its offices and directors to the fulle st extent permitted by current Oklahoma law. Dissenters' Rights All the provisions of the Act are stated by its terms to apply to corporations in existence on November 1, 1986. Under the Act, shareholders are not entitled to dissenters' rights of appraisal in connection with either a corporation's issuance of its authorized capital stock or an amendment to the certificate of incorporation of a corporation. For that reason, management of the Company is of the opinion that shareholders are not entitled to dissenters' rights with respect to either (i) the sale of the Shares to REI and the other transactions contempla ted by the Agreements or (ii) the amendment and restatement of the Amended Certificate of Incorporation of the Company. Consequences of Nonapproval of Amendment and Restatement of Amended Certificate of Incorporation Pursuant to the terms of the Investment Agreement, in the event the proposal to amend and restate the Company's Amended Certificate of Incorporation is not approved by the shareholders of the Company, the Company may not, absent the agreement of REI, authorize or issue any further Equity Securities or Equity Securities Equivalents. In addition, if the proposal to amend and restate the Company's Amended Certificate of Incorporation is not approved, there will be no protective measures in place which could prevent or impede an "ownership change" within the meaning of Section 382 of the Code which could result in the disallowance or limitation of the Carryforwards. ELECTION OF DIRECTORS The Company's Bylaws provide that the Board of Directors shall consist of not less than three nor more than nine members. The current number of directors is six. For election purposes, directors are divided into three groups of two directors each. Each group holds office for three years. The Bylaws provide that one group of the Board be elected at each annual meeting. The terms of Jeffrey A. Lipkin and Joseph J. Finn-Egan, who were appointed in August 1991 to fill the vacancies created by the resignations of Messrs. Holland and Edwards, expired in 1991. Shares represented by the accompanying proxy will be voted for their election, unless otherwise indicated on the proxy. Should the nominees become unavailable for election, persons who may be nominated will be voted for in the discretion of the persons named in the enclosed proxy. Each nominee for election as a director of the Company must be elected by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock and Preferred Stock, voting together as a class, present in person or by proxy at the annual meeting. The Board of Directors of the Company recommends a vote "For" the election of nominees Jeffrey A. Lipkin and Joseph J. Finn-Egan. Unless a shareholder requests that the voting of the proxy be withheld for any one or more of the nominees for director, the shares represented by the enclosed proxy will be voted for the election of all nominees. Should either of these nominees become unable to serve for any reason, which is not anticipated, the Board of Directors may designate substitute nominees in which event the persons named in the enclosed proxy will vote for the election of such substitute nominee or nominees. The following is a brief account of the business experience during the past five years of each director and each person nominated to become a director, including his principal occupation and employment during that period, and the name and principal business of any corporation or other organization in which each person has been occupied or employed. Directorships in certain companies presently held by each director or nominee are also set forth. AMENDED AND RESTATED CERTIFICATE OF INCORPORATIONOF CMI CORPORATION TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA: The undersigned corporation (the "Corporation"), an Oklahoma corporation, for the purpose of adopting an Amended and Restated Certificate of Incorporation pursuant to Section 1080 of the Oklahoma General Corporation Act (the "Act"), hereby certifies: 1. The name of this Corporation is "CMI Corporation." 2. The name under which the Corporation was originally incorporated was Wylie Bros., Inc. 3. The original Articles of Incorporation of the Corporation were filed with the Oklahoma Secretary of State on March 8, 1926. 4. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Section 1080 of the Act, after being proposed by the Directors and adopted by the shareholders in Section 1077 of the Act, and restates, integrates and further amends the Certificate of Incorporation. Furthermore, the shareholders of the Corporation have duly adopted the Amended and Restated Certificate of Incorporation for the purpose of providing that all provisions of the Act will apply to the Corporation and its shareholders to the fullest extent, and that from and after the filing of this Certificate with the Oklahoma Secretary of State the provisions of the Oklahoma Business Corporation Act and any and all rights, privileges or immunities thereunder shall be of no further force or effect with regard to the Corporation and its shareholders. 5. The Certificate of Incorporation of CMI Corporation is hereby restated, as further amended by this Certificate, to read in full, as follows: CERTIFICATE OF INCORPORATION OF CMI CORPORATION FIRST: The name of this Corporation is CMI Corporation (the "Corporation"). SECOND: The address of its registered agent in the State of Oklahoma and the name of its agent at such address shall hereafter be 1-40 and Morgan Road, Oklahoma City, Oklahoma 73101, Attn: Thane Swisher. THIRD: The term of this Corporation shall be perpetual. FOURTH: The purpose for which the Corporation is organized is to engage in any lawful act or activity for which corporations may be organized under the Oklahoma General Corporation Act. FIFTH: The aggregate number of shares which the Corporation shall have authority to issue is as follows: CLASS NUMBER OF SHARES PAR VALUE Voting Common Stock 20,000 $0.10 Voting Class A Common 45,000,000 $0.10 Stock Preferred Stock 4,000,000 $1.00 Effective immediately upon the filing of this Amended and Restated Certificate of Incorporation, each outstanding share of previously existing Voting Common Stock shall be and hereby is converted into and reclassified as 1/2000th of a share of Voting Common Stock; provided, however, that fractional shares of Voting Common Stock will not be issued and each holder of a fractional share of Voting Common Stock shall receive in lieu thereof that number of shares of Voting Class A Common Stock equal to the product of 2000 multiplied by such fraction. Certificates representing reclassified shares are hereby cancelled and upon presentation of the cancelle d certificates to the corporation the holders thereof shall be entitled to receive certificate (s) representing the new shares into which such cancelled shares have been converted. SIXTH: The preferences, qualifications, limitations, restrictions, and other special or relative attri butes of the classes of shares of stock of this Corporation are as follows: (A) Each share of Voting Common Stock and Voting Class A Common Stock shall be entitled to one vote per share on all matters to be submitted to the shareholders of the Corporation. The shareholders of Voting Common Stock and Voting Class A Common Stock shall vote together as a single class. (B) The Preferred Stock may be issued from time-to-time in one or more series, each of said series to have such designations, preferences and relative, participating, optional, voting or other special rights and qualifications, and limitations or restrictions thereof as are stated and expressed in a resolution or resolutions providing for the issue of such series adopted by the Board of Directors as hereinafter provided. (C) Authority is hereby expressly granted to the Board of Directors, subject to the provisions of this Article Sixth, to authorize one or more series of Preferred Stock and, with respect to each series, to fix by resolution or resolutions providing for the issue of such series: (a) The number of shares to constitute such series and the distinctive designation thereof; (b) The dividend rate of such series, if any; (c) Whether or not dividends on the shares of such series shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate; (d) Whether or not the shares of such series shall be redeemable and, if redeemable, the