EXHIBIT 3.a
RESTATED ARTICLES OF INCORPORATION
OF
HEILIG-MEYERS COMPANY
(As Amended)
ARTICLE I
The name of the Corporation is Heilig-Meyers Company
(hereinafter called the "Corporation").
ARTICLE II
The purposes for which the Corporation is organized are as follows: to
manufacture, buy, sell, renovate, import, export and generally deal in
furniture, household and kindred furnishings, floor coverings, bedding,
appliances, electronic equipment and jewelry, and generally to engage in the
business of interior decorating and household furnishings of every nature and
description, and to do all things incidental to the foregoing.
The Corporation may, and shall have the power to, engage in any
business and do anything not prohibited by law or required to be stated in these
Articles.
ARTICLE III
The aggregate number of shares of capital stock which the Corporation
shall have authority to issue is 3,000,000 shares of Preferred Stock, par value
$10.00 per share, and 250,000,000 shares of Common Stock, par value $2.00 per
share.
A. Preferred Stock. Authority is expressly vested in the Board of
Directors to divide the Preferred Stock into, and issue same in, series and,
within the following limitation, to fix and determine the relative rights and
preferences of the shares of any series so established, and to provide for the
issuance hereof. Each series shall be so designated as to distinguish the shares
thereof from the shares of all other series and classes. All shares of the
Preferred Stock shall be identical except as to the following relative rights
and preferences, as to which there may be variations between different series:
(i) The rate of dividend, the time of payment, whether
dividends shall be cumulative and if so, the dates from which they shall be
cumulative, and the extent of participation rights, if any;
(ii) Any right to vote with holders of shares of any other
series or class and any right to vote as a class, either generally or as a
condition to specified corporate action;
(iii) The price at and the terms and conditions on which
shares may be redeemed;
(iv) The amount payable upon shares in event of involuntary
liquidation;
(v) the amount payable upon shares in event of voluntary
liquidation;
(vi) Sinking fund provisions for the redemption or purchase of
shares; and
(vii) The terms and conditions on which shares may be
converted, if the shares of any series are issued with the privilege of
conversion.
Prior to the issuance of any shares of a series of Preferred Stock the
Board of Directors shall establish such series by adopting a resolution
(hereinafter called an "Issuing Resolution") setting forth the designation and
number of shares of the series and the relative rights and preferences thereof,
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to the extent permitted by the provisions hereof, and the Corporation shall file
in the office of the State Corporation Commission of Virginia articles of serial
designation as required by law, and the Commission shall have issued a
certificate of serial designation.
All series of Preferred Stock shall rank on a parity as to dividends
and assets with all other series according to the respective dividend rates and
amounts distributable upon any voluntary or involuntary liquidation of the
Corporation fixed for each such series, and without the preference or priority
of any series over any other series; but all shares of the Preferred Stock shall
be preferred over the Common Stock as to both dividends and amounts
distributable upon any voluntary or involuntary liquidation of the Corporation
to the extent provided in any articles of serial designation applicable thereto.
B. Common Stock. Except as required by law or as permitted by the terms
of any Issuing Resolution creating any series of voting Preferred Stock, the
holders of Common Stock shall, to the exclusion of the holders of any other
class or series of stock of the Corporation, have the sole and full power to
vote for the election of directors and for all other purposes. Each holder of
Common Stock shall be entitled to one vote for each share of such stock held by
him.
ARTICLE IV
The holders of the capital stock of the Corporation shall have no
preemptive or preferential rights to purchase or subscribe to (i) any shares of
capital stock of the Corporation, whether now or hereafter authorized, (ii) any
warrants, rights or options to purchase capital stock of the Corporation, or
(iii) any obligations convertible into such capital stock or into warrants,
rights or options to purchase such capital stock.
ARTICLE V
LIMIT ON LIABILITY AND INDEMNIFICATION
1. Definitions. For purposes of this Article, the following
definitions shall apply:
(a) "corporation" means this Corporation only and no
predecessor entity or other legal entity;
(b) "expenses" include counsel fees, expert witness fees, and
costs of investigation, litigation and appeal, as well as any amounts expended
in asserting a claim for indemnification;
(c) "liability" means the obligation to pay a judgment,
settlement, penalty, fine, or other such obligation, including, without
limitation, any excise tax assessed with respect to an employee benefit plan;
(d) "legal entity" means a corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise;
(e) "predecessor entity" means a legal entity the existence of
which ceased upon its acquisition by the Corporation in a merger or otherwise;
and
(f) "proceeding" means any threatened, pending, or completed
action, suit, proceeding or appeal whether civil, criminal, administrative or
investigative and whether formal or informal.
2. Limit On Liability. In every instance permitted by the Virginia
Stock Corporation Act, as it exists on the date hereof or may hereafter be
amended, the liability of a director or officer of the Corporation to the
Corporation or its shareholders arising out of a single transaction, occurrence
or course of conduct shall be eliminated.
3. Indemnification of Directors and Officers. The Corporation shall
indemnify any individual who is, was or is threatened to be made a party to a
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proceeding (including a proceeding by or in the right of the Corporation)
because such individual is or was a director or officer of the Corporation or
because such individual is or was serving the Corporation or any other legal
entity in any capacity at the request of the Corporation while a director or
officer of the Corporation against all liabilities and reasonable expenses
incurred in the proceeding, except such liabilities and expenses as are incurred
because of such individual's willful misconduct or knowing violation of the
criminal law. Service as a director or officer of a legal entity controlled by
the Corporation shall be deemed service at the request of the Corporation. The
determination that indemnification under this Section 3 is permissible and the
evaluation as to the reasonableness of expenses in a specific case shall be
made, in the case of a director, as provided by law, and in the case of an
officer, as provided in Section 4 of this Article; provided, however, that if a
majority of the directors of the Corporation has changed after the date of the
alleged conduct giving rise to a claim for indemnification, such determination
and evaluation shall, at the option of the person claiming indemnification, be
made by special legal counsel agreed upon by the Board of Directors and such
person. Unless a determination has been made that indemnification is not
permissible, the Corporation shall make advances and reimbursements for expenses
incurred by a director or officer in a proceeding upon receipt of an undertaking
from such director or officer to repay the same if it is ultimately determined
that such director or officer is not entitled to indemnification. Such
undertaking shall be an unlimited, unsecured general obligation of the director
or officer and shall be accepted without reference to such director's or
officer's ability to make repayment. The termination of a proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not of itself create a presumption that a director or
officer acted in such a manner as to make such director or officer ineligible
for indemnification. The Corporation is authorized to contract in advance to
indemnify and make advances and reimbursements for expenses to any of its
directors or officers to the same extent provided in this Section 3.
4. Indemnification of Others. The Corporation may, to a lesser extent
or the same extent that it is required to provide indemnification and make
advances and reimbursements for expenses to its directors and officers pursuant
to Section 3, provide indemnification and make advances and reimbursements for
expenses to its employees and agents, the directors, officers, employees and
agents of its subsidiaries and predecessor entities, and any person serving any
other legal entity in any capacity at the request of the Corporation, and may
contract in advance to do so. The determination that indemnification under this
Section 4 is permissible, the authorization of such indemnification and the
evaluation as to the reasonableness of expenses in a specific case shall be made
as authorized from time to time by general or specific action of the Board of
Directors, which action may be taken before or after a claim for indemnification
is made, or as otherwise provided by law. No person's rights under Section 3 of
this Article shall be limited by the provisions of this Section 4.
5. Miscellaneous. The rights of each person entitled to indemnification
under this Article shall inure to the benefit of such person's heirs, executors
and administrators. Special legal counsel selected to make determinations under
this Article may be counsel for the Corporation. Indemnification pursuant to
this Article shall not be exclusive of any other right of indemnification to
which any person may be entitled, including indemnification pursuant to a valid
contract, indemnification by legal entities other than the Corporation and
indemnification under policies of insurance purchased and maintained by the
Corporation or others. However, no person shall be entitled to indemnification
by the Corporation to the extent such person is indemnified by another,
including an insurer. The Corporation is authorized to purchase and maintain
insurance against any liability it may have under this Article or to protect any
of the persons named above against any liability arising from their service to
the Corporation or any other legal entity at the request of the Corporation
regardless of the Corporation's power to indemnify against such liability. The
provisions of this Article shall not be deemed to preclude the Corporation from
entering into contracts otherwise permitted by law with any individuals or legal
entities, including those named above. If any provision of this Article or its
application to any person or circumstance is held invalid by a court of
competent jurisdiction, the invalidity shall not affect other provisions or
applications of this Article, and to this end the provisions of this Article are
severable.
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6. Application; Amendments. The provisions of this Article shall be
applicable from and after its adoption even though some or all of the underlying
conduct or events relating to a proceeding may have occurred before its
adoption. No amendment, modification or repeal of this Article shall diminish
the rights provided hereunder to any person arising from conduct or events
occurring before the adoption of such amendment, modification or repeal.
ARTICLE VI
The number of directors shall be fixed by Bylaw or in the absence of
such a Bylaw shall be ten (10).
ARTICLE VII
Pursuant to a resolution adopted by the Board of Directors of the
Corporation on February 17, 1988, a Series A of Preferred Stock, par value
$10.00 per share, was designated as set forth below, the shares of which have
the rights and preferences set forth following the designation:
I. Designation and Amount. The shares of such series shall be designated as
"Cumulative Participating Preferred Stock, Series A" (the "Series A Stock") and
the number of shares constituting such series shall be 750,000. Such number of
shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of the Series A
Stock to a number less than that of the shares then outstanding.
II. Dividends and Distributions.
A. The holders of shares of the Series A Stock, in preference to the
holders of Common Stock, par value $2.00 per share, of the Corporation (the
"Common Stock") and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the fifteenth
day (or, if not a business day, the preceding business 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 the
Series A Stock, in an amount per share (rounded to the nearest cent) equal to
the greater of (a) $1.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 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), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of the Series A Stock. In the event the Corporation shall at
any time after the first issuance of any share or fraction of a share of the
Series A Stock declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount per share to which
holders of shares of the Series A Stock shall be entitled under clause (b) of
the preceding sentence shall be adjusted by multiplying the amount per share to
which holders of shares of the Series A Stock were entitled immediately prior to
such event under clause (b) of the preceding sentence by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
B. The Corporation shall declare a dividend or distribution on the
Series A Stock as provided in paragraph (A) of this Section immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series A Stock shall
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nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
C. Dividends shall begin to accrue and be cumulative on outstanding
shares of the Series A Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of the Series A Stock, unless the
date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or 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 the Series A 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 the Series A 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 the Series A Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be not more than 60 days prior to the date fixed for the payment thereof.
III. Voting Rights. The holders of shares of the Series A Stock shall have the
following voting rights:
A. Subject to the provision for adjustment hereinafter set forth, each
share of the Series A Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the shareholders of the Corporation. In the event
the Corporation shall at any time after the first issuance of any share or
fraction of a share of the Series A Stock declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of the Series A Stock shall
be entitled shall be adjusted by multiplying the number of votes per share to
which holders of shares of the Series A Stock were entitled immediately prior to
such event by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
B. Except as otherwise provided herein or by law, the holders of shares
of the Series A Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of shareholders of the
Corporation.
C. Except as set forth herein, holders of the Series A Stock shall have
no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
IV. Certain Restrictions.
A. Whenever quarterly dividends or other dividends or distributions
payable on the Series A Stock as provided in Section II are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of the Series A Stock outstanding shall have been
paid in full, the Corporation shall not:
(i) declare, set apart or pay dividends on or make any other
distributions on the Common Stock or any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up)
to the Series A 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 upon liquidation, dissolution or winding up) with the
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Series A Stock, except dividends paid ratably on the Series A 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; or
(iii) redeem or purchase or otherwise acquire for
consideration shares of the Series A Stock, any such parity stock or
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Stock, or set aside for or
pay to any sinking fund therefor.
B. The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section IV
purchase or otherwise acquire such shares at such time and in such manner.
V. Reacquired Shares. Any shares of the Series A Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon
their cancellation became authorized but unissued shares of Preferred Stock, par
value $10.00 per share and may be reissued as a new series or a part of a new
series of Preferred Stock, par value $10.00 per share, to be created by
resolution or resolutions of the Board of Directors.
VI. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or
winding up of the Corporation, no distribution shall be made (1) to the holders
of shares of Common Stock or of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Stock unless, prior
thereto, the holders of shares of the Series A Stock shall have received an
amount per share equal to the greater of (a) $11,000 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate amount
to be distributed per share to holders of Common Stock, plus in each such case
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (2) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Stock, except distributions made
ratably on the Series A Stock and all other such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time after the first issuance of any share or fraction of a share of the
Series A Stock declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount per share
to which holders of shares of the Series A Stock shall be entitled under the
provision of clause (1) of the preceding sentence shall be adjusted by
multiplying the amount per share to which holders of shares of the Series A
Stock would have been entitled immediately prior to such event under the
provision of clause (1) of the preceding sentence 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.
VII. Consolidation, Merger, etc. In case the Corporation 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 the Series A
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 Corporation
shall at any time after the first issuance of any share or fraction of a share
of the Series A Stock declare or pay any dividend on Common Stock payable in
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share of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise)
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 the Series A 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.
VIII. No Redemption. The shares of the Series A Stock shall not be redeemable.
IX. Amendment. The Articles of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Stock so as to affect them
adversely without the affirmative vote of the holders of more than two-thirds of
the outstanding shares of the Series A Stock, voting together as a single voting
group.
ARTICLE VIII
VOTE TO AMEND OR RESTATE
As to each voting group entitled to vote on an amendment or restatement
of these Articles of Incorporation the vote required for approval shall be (i)
the vote required by the Virginia Stock Corporation Act (as applied without
regard to the effect of clause (iii) of this Article) if the effect of the
amendment or restatement is (a) to reduce the shareholder vote required to
approve a merger, a statutory share exchange, a sale of all or substantially all
of the assets of the Corporation or the dissolution of the Corporation, or (b)
to delete all or any part of this clause (i) of this Article; (ii) the vote
required by the terms of these Articles of Incorporation, as amended or as
restated from time to time, if such terms require the approval of more than a
majority of the votes entitled to be cast thereon by such voting group; or (iii)
a majority of the votes entitled to be cast thereon if neither clause (i) nor
clause (ii) of this Article is applicable.
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