EXHIBIT 4.1
RESTATED ARTICLES OF EQUITABLE RESOURCES, INC.
(As Amended Through May 18, 1999)
The following is a Composite Copy of the Articles of Equitable
Resources, Inc., as restated effective August 7, 1981, and as amended effective
June 23, 1982, January 13, 1984, October 1, 1984, June 12, 1987, May 27, 1993,
May 8, 1996, and May 18, 1999.
First: The name of the Company is EQUITABLE RESOURCES, INC.
Second: The location and post office address of its current registered office in
the Commonwealth of Pennsylvania is One Oxford Centre, Suite 3300, 301 Grant
Street, City of Pittsburgh, 15219, County of Allegheny.
Third: The purposes for which the Company is incorporated under the Business
Corporation Law of the Commonwealth of Pennsylvania are to engage in, and to do
any lawful act concerning, any or all lawful business for which corporations may
be incorporated under said Business Corporation Law, including but not limited
to:
A. the supply of heat, light and power to the public by any
means;
B. the production, purchase, generation, manufacture,
transmission, transportation, storage, distribution and supplying of
natural or artificial gas, steam or air conditioning, electricity, or
any combination thereof to or for the public; and
C. manufacturing, processing, owning, using and dealing in
personal property of every class and description, engaging in research
and development, the furnishing of services, and acquiring, owning,
using and disposing of real property of every nature whatsoever.
Fourth: The term of the Company's existence shall be perpetual.
Fifth: The aggregate number of shares which the Company shall have authority to
issue shall be:
(a) 3,000,000 shares of Preferred Stock, without par value; and
(b) 80,000,000 shares of Common Stock, without par value.
The designations, preferences, qualifications, limitations, restrictions, and
the special or relative rights in respect of the Preferred Stock and of the
Common Stock of the Company, and a statement of the authority hereby vested in
the Board of Directors of the Company to fix and determine the designations,
preferences, qualifications, limitations, restrictions, and special or relative
rights in respect of all series of the Preferred Stock shall be as follows:
Division A?THE PREFERRED STOCK
1.1 Preferred Stock. The Preferred Stock may be divided into and issued
in series. The Board of Directors is hereby expressly authorized, at any time or
from time to time, to divide any or all of the shares of the Preferred Stock
into series, and in the resolution or resolutions establishing a particular
series, before issuance of any of the shares thereof, to fix and determine the
designation and the relative rights and preferences of the series so
established, to the fullest extent now or hereafter permitted by the laws of the
Commonwealth of Pennsylvania, including, but not limited to, the variations
between different series in the following respects:
(a) the distinctive serial designation of such series;
(b) the annual dividend rate for such series, and the date or
dates from which dividends shall commence to accrue;
(c) the redemption price or prices, if any, for shares of
such series and the terms and conditions on which such shares may be redeemed;
(d) the provisions for a sinking, purchase or similar fund, if
any, for the redemption or purchase of shares of such series;
(e) the preferential amount or amounts payable upon shares of
such series in the event of the voluntary or involuntary liquidation of the
Company;
(f) the voting rights, if any, of shares of such series;
(g) the terms and conditions, if any, upon which shares of such
series may be converted and the class or classes or series of securities of the
Company into which such shares may be converted;
(h) the relative seniority, parity or junior rank of such
series with respect to other series of Preferred Stock then or thereafter to be
issued; and
(i) such other terms, limitations and relative rights and
preferences, if any, of shares of such series as the Board of Directors may, at
the time of such resolutions, lawfully fix and determine under the laws of the
Commonwealth of Pennsylvania.
Division B?PROVISIONS APPLICABLE TO BOTH THE
PREFERRED STOCK AND THE COMMON STOCK
2.1 Voting Rights. Except as provided in this Section 2.1, the holders
of the Common Stock shall have exclusive voting rights for the election of
Directors and for all other purposes and shall be entitled to one vote for each
share held.
The holders of the Preferred Stock shall have no voting rights except as
may be provided with respect to any particular series of the Preferred Stock by
the Board of Directors pursuant to Subdivision 1.1 of Division A hereof. On any
matter on which the holders of the Preferred Stock shall be entitled to vote,
they shall be entitled to vote as established by the Board of Directors pursuant
to Subdivision 1.1 of Division A hereof.
In all elections for Directors, every stockholder entitled to vote shall
have the right, in person or by proxy, to multiply the number of votes to which
such stockholder may be entitled by the number of Directors for the election of
whom he is entitled to vote at such meeting, and such stockholder may cast the
whole number of such votes for one candidate or may distribute them among any
two or more candidates. The candidates receiving the highest number of votes up
to the number of Directors to be elected shall be elected. The foregoing
provisions of this paragraph shall not be changed with respect to any class of
stock unless the holders of record of not less than two-thirds of the number of
shares of such class of stock then outstanding shall consent thereto in writing
or by voting therefor in person or by proxy at the meeting of stockholders at
which any such change is considered.
2.2 Pre-emptive Rights. Upon any issue for money or other consideration
of any stock of the Company that may be authorized from time to time, no holder
of stock, irrespective of the kind of such stock, shall have any pre-emptive or
other right to subscribe for, purchase, or receive any proportionate or other
share of the stock so issued, but the Board of Directors may dispose of all or
any portion of such stock as and when it may determine, free of any such rights,
whether by offering the same to stockholders or by sale or other disposition as
said Board may deem advisable; provided, however, that if the Board of Directors
shall determine to offer any new or additional shares of Common Stock, or any
security convertible into Common Stock, for money, other than (i) by a public
offering of all of such shares or offering of all of such shares to or through
underwriters or investment bankers who shall have agreed promptly to make a
public offering of such shares, or (ii) pursuant to any employee compensation,
incentive or other benefit program adopted by the Board of Directors, the same
shall first be offered pro rata to the holders of the then outstanding shares of
Common Stock of the Company at a price not less favorable than the price at
which the Board of Directors issues and disposes of such stock or securities to
other than such holders of Common Stock before deducting reasonable commissions
or compensation that may be paid by the Company in connection with the sale of
any such stock and securities; and provided, further, that the time within which
such pre-emptive rights shall be exercised may be limited by the Board of
Directors to such time as the said Board may deem proper, not less, however,
than ten days after mailing of notice that such stock rights are available and
may be exercised. The foregoing provisions of this Subdivision 2.2 shall not be
changed unless the holders of record of not less than two-thirds of the number
of shares of the Common Stock then outstanding shall consent thereto in writing
or by voting therefor in person or by proxy at the meeting of stockholders at
which any such change is considered.
2.3 Amendments to By-Laws. The Board of Directors may make, amend and
repeal the By-Laws with respect to those matters which are not, by statute,
reserved exclusively to the shareholders, subject always to the power of the
shareholders to change such action as provided herein. No By-Law may be made,
amended or repealed by the shareholders unless such action is approved by the
affirmative vote of the holders of not less than 80% of the voting power of the
then outstanding shares of capital stock of the Company entitled to vote in an
annual election of directors, voting together as a single class, unless such
action has been previously approved by a two-thirds vote of the whole Board of
Directors, in which event (unless otherwise expressly provided in the Articles
or the By-Laws) the affirmative vote of not less than a majority of the votes
which all shareholders are entitled to cast thereon shall be required.
2.4 Amendments to Articles. Subject to the voting rights given to any
particular series of the Preferred Stock by the Board of Directors pursuant to
Subdivision 1.1 of Division A hereof, and except as may be specifically provided
to the contrary in any other provision in the Articles with respect to amendment
or repeal of such provision, the affirmative vote of the holders of not less
than 80% of the voting power of the then outstanding shares of capital stock of
the Company entitled to vote in an annual election of directors, voting together
as a single class, shall be required to amend the Articles of the Company or
repeal any provision thereof, unless such action has been previously approved by
a two-thirds vote of the whole Board of Directors, in which event (unless
otherwise expressly provided in the Articles) the affirmative vote of not less
than a majority of the votes which all shareholders are entitled to cast thereon
shall be required.
2.5 General. The Company may issue and dispose of any of its authorized
shares for such consideration as may be fixed by the Board of Directors subject
to the laws then applicable and to the provisions of Subdivision 2.2 of this
Division B.
Division C?BOARD OF DIRECTORS;
CLASSIFICATION; REMOVAL; VACANCIES
3.1 The business and affairs of the Company shall be managed by a Board
of Directors comprised as follows:
(a) The Board of Directors shall consist of not less than 5 nor
more than 12 persons, the exact number to be fixed from time to time by
the Board of Directors pursuant to a resolution adopted by a majority
vote of the directors then in office.
(b) Directors of the Company shall be classified with respect
to the time for which they shall severally hold office by dividing them
into three classes: Class 1; Class 2; and Class 3, as nearly equal in
number as possible. At the special meeting of shareholders at which the
amendment adding this Division C shall be adopted, the then current
directors shall be assigned to the three classes in accordance with
resolutions adopted by the Board of Directors. Class 1 directors shall
not be elected at such special meeting but shall continue to hold office
until the annual meeting of shareholders in 1984. Class 2 directors
shall be elected by shareholders at such special meeting to extended
terms of office, to serve until the annual meeting in 1985. Class 3
directors shall be elected by shareholders at such special meeting to
extended terms of office, to serve until the annual meeting in 1986.
Each class of directors to be elected at such special meeting shall be
elected in a separate election. At each succeeding annual meeting of
shareholders, the class of directors then being elected shall be elected
to hold office for a term of three years. Each director shall hold
office for the term for which elected and until his or her successor
shall have been elected and qualified.
(c) Any director, any class of directors or the entire Board of
Directors may be removed from office by shareholder vote at any time,
without assigning any cause, but only if shareholders entitled to cast
at least 80% of the votes which all shareholders would be entitled to
cast at an annual election of directors or of such class of directors
shall vote in favor of such removal; provided, however, that no
individual director shall be removed without cause (unless the entire
Board of Directors or any class of directors be removed) in case the
votes cast against such removal would be sufficient, if voted
cumulatively for such director, to elect him or her to the class of
directors of which he or she is a member.
(d) Vacancies in the Board of Directors, including vacancies
resulting from an increase in the number of directors, shall be filled
only by a majority vote of the remaining directors then in office,
though less than a quorum, except that vacancies resulting from removal
from office by a vote of the shareholders may be filled by the
shareholders at the same meeting at which such removal occurs. All
directors elected to fill vacancies shall hold office for a term
expiring at the annual meeting of shareholders at which the term of the
class to which they have been elected expires. No decrease in the number
of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
(e) Whenever the holders of any class or series of preferred
stock shall have the right, voting separately as a class, to elect one
or more directors of the Company, none of the foregoing provisions of
this Section 3.1 shall apply with respect to the director or directors
elected by such holders of preferred stock.
3.2 Notwithstanding any other provisions of law, the Articles or the
By-Laws of the Company, the affirmative vote of the holders of not less than 80%
of the voting power of the then outstanding shares of capital stock of the
Company entitled to vote in an annual election of directors, voting together as
a single class, shall be required to amend, alter, change or repeal, or adopt
any provision inconsistent with, this Division C, unless such action has been
previously approved by a two-thirds vote of the whole Board of Directors.
3.3 No Director shall be personally liable for monetary damages as such
(except to the extent otherwise provided by law) for any action taken, or any
failure to take any action, unless such Director has breached or failed to
perform the duties of his or her office under Title 42, Chapter 83, Subchapter F
of the Pennsylvania Consolidated Statutes (or any successor statute relating to
Directors' standard of care and justifiable reliance); and the breach or failure
to perform constitutes self-dealing, willful misconduct or recklessness.
If the Pennsylvania Consolidated Statutes are amended after May 22,
1987, the date this section received shareholder approval, to further eliminate
or limit the personal liability of Directors, then a Director shall not be
liable, in addition to the circumstances set forth in this section, to the
fullest extent permitted by the Pennsylvania Consolidated Statutes, as so
amended.
The provisions of this section shall not apply to any actions filed
prior to January 27, 1987 nor to any breach of performance of duty, or any
failure of performance of duty, by any Director occurring prior to January 27,
1987.
Division D?PROCEDURES RELATING
TO CERTAIN BUSINESS COMBINATIONS
4.1 Votes Required; Exceptions.
(a) The affirmative vote of the holders of not less than 80% of
the voting power of the then outstanding shares of capital stock of the
Company entitled to vote in an annual election of directors (the "Voting
Stock"), voting together as a single class, shall be required for the
approval or authorization of any "Business Combination" (as hereinafter
defined) involving a "Related Person" (as hereinafter defined);
provided, however, that the 80% voting requirement shall not be
applicable if:
(1) The "Continuing Directors" (as hereinafter defined)
of the Company by a two-thirds vote have expressly approved
such Business Combination either in advance of or subsequent to
such Related Person's having become a Related Person; or
(2) both the following conditions are satisfied:
(A) the aggregate amount of the cash and the
"Fair Market Value" (as hereinafter defined) of the
property, securities and "Other Consideration" (as
hereinafter defined) to be received per share by holders
of capital stock of the Company in the Business
Combination, other than the Related Person, is not less
than the "Highest Equivalent Price" (as hereinafter
defined) of such shares of capital stock; and
(B) a proxy or information statement describing
the proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934, as
amended, whether or not the Company is then subject to
such requirements, shall have been mailed to all
shareholders of the Company. The proxy or information
statement shall contain at the front thereof, in a
prominent place, the position of the Continuing
Directors as to the advisability (or inadvisability) of
the Business Combination and, if deemed advisable by a
majority of the Continuing Directors, the opinion of an
investment banking firm selected by the Continuing
Directors as to the fairness of the terms of the
Business Combination, from the point of view of the
holders of the outstanding shares of capital stock of
the Company other than any Related Person.
(b) Such 80% vote shall in any such instance be required
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law or in any agreement with any national
securities exchange or otherwise.
4.2 Definitions. For purposes of this Division D:
(a) A "Person" shall mean any individual, partnership,
corporation or other entity. As used herein, the pronouns "which" and
"it" in relation to Persons which are individuals shall be construed to
mean "who" or "whom", "he" or "she", and "him" or "her", as appropriate.
(b) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on November 10, 1983 (the term "registrant" in said Rule 12b-2
meaning in this case the Company).
(c) The term "Beneficial Owner" (and variations thereof) shall
have the meaning ascribed to such term in Rule 13d-3 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on November 10, 1983; provided, however, that notwithstanding any
provision of Rule 13d-3 to the contrary, an entity shall be deemed to be
the Beneficial Owner of any share of capital stock of the Company that
such entity has the right to acquire at any time pursuant to any
agreement, or upon exercise of conversion rights, warrants or options,
or otherwise.
(d) The term "Voting Stock" shall have the meaning set forth
at the beginning of Section 4.1(a) of this Division D.
(e) The term "Subsidiary" of any Person shall mean any
corporation of which a majority of the capital stock entitled to vote
for the election of directors is Beneficially Owned by such Person
directly or indirectly though other Subsidiaries of such Person.
(f) The term "Substantial Part" of the assets of any person
shall mean more than 10% of the Fair Market Value, as determined by a
two-thirds vote of the Continuing Directors, of the total consolidated
assets of such Person and its Subsidiaries as of the end of its most
recent fiscal year ended prior to the time the determination is being
made.
(g) The term "Other Consideration" shall include, without
limitation, shares of Common Stock or other capital stock of the Company
retained by the holders of such shares in the event of a Business
Combination in which the Company is the surviving corporation.
(h) The term "Continuing Director" shall mean a director of the
Company who is unaffiliated with any Related Person and either (1) was a
director of the Company immediately prior to the time the Related Person
involved in a Business Combination became a Related Person or (2) is a
successor to a Continuing Director and is recommended to succeed a
continuing Director by a majority of the then Continuing Directors.
Where this Division D contains provisions for a determination,
recommendation or approval by the Continuing Directors, if there is at
any particular relevant time no Continuing Director in office, then such
provision shall be deemed to be satisfied if the Board, by a two-thirds
vote of the whole Board of Directors, makes or gives such determination,
recommendation or approval.
(i) The term "Business Combination" shall mean
(1) any merger, consolidation or share exchange of the
Company or a Subsidiary of the Company with a Related Person,
in each case without regard to which entity is the surviving
entity;
(2) any sale, lease, exchange, transfer or other
disposition, including without limitation a mortgage or any
other security device, of all or any Substantial Part of the
assets of the Company (including without limitation any voting
securities of a Subsidiary of the Company) or a Subsidiary of
the Company to or with a Related Person (whether in one
transaction or series of transactions), or of all or any
Substantial Part of the assets of a Related Person to the
Company or a Subsidiary of the Company;
(3) the issuance, transfer or delivery of any securities
of the Company or a Subsidiary of the Company by the Company or
any of its Subsidiaries to a Related Person, or of any
securities of a Related Person to the Company or a Subsidiary
of the Company (other than an issuance or transfer of
securities which is effected on a pro rata basis to all
shareholders of the Company or of the Related Person, as the
case may be);
(4) any recapitalization, reorganization or
reclassification of securities (including any reverse stock
split) or other transaction that would have the effect,
directly or indirectly, of increasing the voting power of a
Related Person;
(5) the adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed by or on
behalf of a Related Person; or
(6) any agreement, plan, contract or other arrangement
providing for any of the transactions described in this
definition of Business Combination.
(j) The term "Related Person" at any particular time shall mean
any Person if such Person, its Affiliates, its Associates, and all
Persons of which it is an Affiliate or Associate Beneficially Own in the
aggregate 10% or more of the outstanding Voting Stock of the Company,
and any Affiliate or Associate of any such Person, and any Person of
which such Person is an Affiliate or Associate. With respect to any
particular Business Combination, the term "Related Person" means the
Related Person involved in such Business Combination, any Affiliate or
Associate of such Related Person, and any Person of which such Related
Person is an Affiliate or Associate. Where in this Division D any
reference is made to a transaction involving, or ownership of securities
by, a Related Person, it shall mean and include one or more transactions
involving different Persons all included within the definition of
"Related Person", or ownership of securities by any or all of such
Persons. Each Person who is an Affiliate or Associate of a Related
Person shall be deemed to have become a Related Person at the earliest
time any of such Persons becomes a Related Person.
(k) The term "highest Equivalent Price" with respect to
shares of capital stock of the Company of any class or series shall
mean the following:
(1) with respect to shares of Common Stock, the highest
price that can be determined to have been paid at any time by a
Related Person for any shares of Common Stock; and
(2) with respect to any class or series of shares of
capital stock other than Common Stock, the higher of the
following:
(A) if any shares of such class or series are
Beneficially Owned by a Related Person, the highest
price that can be determined to have been paid at any
time by a Related Person for such shares; or
(B) the amount determined by the Continuing
Directors, on whatever basis they believe is
appropriate, to be the per share price equivalent of the
highest price that can be determined to have been paid
at any time by a Related Person for any shares of any
other class or series of capital stock of the Company.
In determining the Highest Equivalent Price, all purchases by a Related
Person shall be taken into account regardless of whether the shares were
purchased before or after the Related Person became a Related Person.
Also, the Highest Equivalent Price shall include any brokerage
commissions, transfer taxes, soliciting dealers' fees and other expenses
paid by the Related Person with respect to the shares of capital stock
of the Company acquired by the Related Person. In the case of any
Business Combination with a Related Person, the Continuing Directors by
a two-thirds vote shall determine the Highest Equivalent Price for each
class and series of capital stock of the Company.
(l) The term "Fair Market Value" shall mean (1) in the case of
stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on
the New York Stock Exchange's consolidated transaction reporting system,
or, if such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such stock is
not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period preceding the
date in question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, or if no such
quotations are available, the fair market value on the date in question
of a share of such stock as determined by the Continuing Directors; and
(2) in the case of property other than stock or cash, the fair market
value of such property on the date in question as determined by a
two-thirds vote of the Continuing Directors.
4.3 Miscellaneous.
(a) The Continuing Directors, by a two-thirds vote, are
authorized to determine for purposes of this Division D on the basis of
information known to them after reasonable inquiry: (1) whether a Person
is a Related Person, (2) the number of shares of Voting Stock
Beneficially Owned by any Person, (3) whether a Person is an Affiliate
or Associate of another, (4) whether certain assets constitute a
Substantial Part of the assets of any Person, (5) the amounts of prices
paid, market prices, and other factors relative to fixing the Highest
Equivalent Price of shares of capital stock of the Company and (6) the
Fair Market Value of property, securities and Other Consideration
received in a Business Combination. Any such determination made in good
faith shall be binding and conclusive on all parties.
(b) Nothing contained in this Division D shall be construed to
relieve any Related Person from any fiduciary obligation imposed by law.
(c) The fact that any Business Combination complies with the
conditions set forth in Subsection (a)(2) of Section 4.1 of this
Division D shall not be construed to impose any fiduciary duty,
obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Business Combination or recommend its adoption
or approval to the shareholders of the Company, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the Board
of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
(d) Notwithstanding any other provisions of law, the Articles
or the By-Laws of the Company, the affirmative vote of the holders of
not less than 80% of the voting power of the Voting Stock of the
Company, voting together as a single class, shall be required to amend,
alter, change or repeal, or adopt any provision inconsistent with, this
Division D.
Sixth: Henceforth, these Articles of the Company shall not include any prior
documents.
RESOLUTION ADOPTED BY THE BOARD OF DIRECTORS
OF EQUITABLE RESOURCES, INC. ON MARCH 21, 1996
ESTABLISHING THE SERIES ONE PREFERRED STOCK
RESOLVED, That pursuant to the authority conferred upon
the Board of Directors by Article Fifth, Division A, section 1.1 of the Restated
Articles of Incorporation of the Company, as amended, there is hereby
established a series of the Preferred Stock of the Company to consist initially
of 500,000 shares with the designation and relative rights and preferences
thereof to be as follows:
Designation. The shares of such series shall be designated as
"Series One Preferred Stock." Shares of this series shall be issued
pursuant to the exercise of rights to purchase Series One Preferred
Stock distributed to the holders of Common Stock, without par value,
of the Company (the "Common Stock").
Dividends and Distributions. Subject to the rights and preferences
of the holders of any shares of any series of Preferred Stock
ranking senior as to dividends to this Series One Preferred Stock,
as such may be established by the Board of Directors, the holders of
shares of Series One Preferred Stock, in preference to the holders
of Common Stock and shares of stock ranking junior as to dividends
to the Series One Preferred Stock, shall be entitled to receive,
when and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on
the 15th day of March, June, September and December in each year
(each such date being referred to herein as 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 One Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $29.50 or (b) subject to
the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends plus 100 times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in
shares of Common Stock, or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), paid on the
Common Stock at any time during the quarter year immediately
preceding the quarter year ending on the day immediately preceding
such Quarterly Dividend Payment Date. In the event the Company shall
at any time after April 1, 1996 (the "Rights Distribution Date")
during any quarter year immediately preceding the quarter year
ending on the day immediately preceding a Quarterly Dividend Payment
Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, or (ii) subdivide the outstanding Common Stock or
combine the outstanding Common Stock into a greater or lesser number
of shares of Common Stock, then in each such case the amounts to
which holders of shares of Series One Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying each such amount 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.
Dividends shall begin to accrue and be cumulative on outstanding
shares of Series One Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of
Series One Preferred Stock, unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series One Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series One Preferred Stock in an
amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination
of holders of shares of Series One Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date
fixed for the payment thereof.
Voting Rights. Except as otherwise provided by law, holders of
shares of Series One Preferred Stock shall have no voting rights.
Certain Restrictions. Whenever quarterly dividends or other
dividends or distributions payable on the Series One Preferred Stock
are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series One Preferred Stock outstanding shall have been paid in full,
the Company shall not: (i) declare or pay dividends on, make any
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or as to assets) to the Series One Preferred Stock; (ii)
declare or pay dividends on or make any other distributions on any
shares of stock ranking on a parity (either as to dividends or as to
assets) with the Series One Preferred Stock, except dividends paid
ratably on the Series One 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) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or as to assets) to the Series One Preferred Stock,
provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Company ranking junior (either as to
dividends or as to assets) to the Series One Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series One Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series One Preferred Stock, 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. The
Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under this paragraph, purchase or
otherwise acquire such shares at such time and in such manner.
Reacquired Shares. Any shares of Series One Preferred Stock
purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Liquidation, Dissolution or Winding Up. Subject to the rights and
preferences of the holders of any shares of any series of Preferred
Stock ranking senior as to assets to this Series One Preferred
Stock, as such may be established by the Board of Directors, upon
any involuntary or voluntary liquidation, dissolution or winding up
of the Company, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or as to
assets) to the Series One Preferred Stock unless, prior thereto, the
holders of shares of Series One Preferred Stock shall have received
an amount per share equal to the Per Share Series One Liquidation
Preference. The Per Share Series One Liquidation Preference shall be
equal to the sum of (x) $100.00 plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, plus (y) the Participation Preference.
The "Participation Preference" is an amount per each share of Series
One Preferred Stock outstanding equal to the product of (A) the
Excess Distribution Amount, as hereinafter defined, times (B) a
fraction whose numerator is 100 and whose denominator is the sum of
(i) the product of 100 times the number of outstanding shares of
Series One Preferred Stock, plus (ii) the product of 100 times a
fraction whose numerator is the number of outstanding shares of
Common Stock and whose denominator is the Adjustment Number;
provided, however, if the foregoing computation results in a
negative number, then the Participation Preference shall be 0.
Following the payment of the full amount of the Series One
Liquidation Preference, holders of shares of Common Stock shall
receive the remaining assets to be distributed.
The "Excess Distribution Amount" is an amount equal to the amount
available for distribution to shareholders of the Company after
payment of all debts and liabilities less the sum of (i) the
liquidation preferences in respect of all shares of preferred stock
of the Company other than the Series One Preferred Stock, (ii) the
product of 100 times the number of outstanding shares of Series One
Preferred Stock, and (iii) the product of the number of outstanding
shares of Common Stock times a fraction whose numerator is 100 and
whose denominator is the Adjustment Number.
The Adjustment Number shall initially be 100 and shall be subject to
adjustment as provided below. In the event the Company shall at any
time after the Rights Distribution Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number 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. Consolidation, Merger, etc. In case
the Company shall enter into any consolidation, merger, combination
or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or
any other property, then in any such case the shares of Series One
Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Company shall
at any time (i) declare any dividend on Common Stock payable in
shares of Common Stock, or (ii) subdivide the outstanding Common
Stock or combine the outstanding Common Stock into a greater or
lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series One Preferred Stock shall be
adjusted by multiplying such amount 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.
Redemption. The outstanding shares of Series One Preferred Stock may
be redeemed at the option of the Board of Directors as a whole, but
not in part, at ny time or from time to time, at a cash price per
share equal to (i) the product of the Adjustment Number times the
Average Market Value, as such term is hereinafter defined, of the
Common Stock, plus (ii) all dividends which on the redemption date
have accrued on the shares to be redeemed and have not been paid or
declared and a sum sufficient for the payment thereof set apart,
without interest; provided, however, that if and whenever any
quarter-yearly dividend shall have accrued on the Series One
Preferred Stock which has not been paid or declared and a sum
sufficient for the payment thereof set apart, the Company may not
purchase or otherwise acquire any shares of Series One Preferred
Stock unless all shares of such stock at the time outstanding are so
purchased or otherwise acquired. The "Average Market Value" is the
average of the closing sale prices of the Common Stock during the
30-day period immediately preceding the date before the redemption
date on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934, as amended, on
which such stock is listed, or, if such stock is not listed on any
such exchange, the average of the closing bid quotations with
respect to a share of Common Stock during such 30-day period on the
National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or, if no such
quotations are available, the fair market value of the Common Stock
as determined by the Board of Directors in good faith.
Fractional Shares. Series One Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion
to such holder's fractional shares, to exercise voting rights, if
applicable, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series One
Preferred Stock.