SOUTHERN RAILWAY COMPANY
ARTICLES OF AMENDMENT
1. The name of the Corporation, as is now appears on the
records of the State Corporation Commission, is SOUTHERN RAILWAY COMPANY.
2. These Articles of Amendment shall be effective as of
11:59 p.m., December 31, 1990.
3. The text of the amendment adopted is as follows:
Strike Article I of the Company's Restated Articles
of Incorporation and substitute in
lieu thereof the following:
ARTICLE I
The name of the Corporation is NORFOLK
SOUTHERN RAILWAY COMPANY.
4. The amendment was adopted on December 14, 1990.
5. The Board of Directors, by unanimous written consent
effective September 26, 1990, proposed and recommended adoption of
the amendment and directed that it be submitted to a vote at a
Special Meeting of Stockholders on December 14, 1990.
The Company's two classes of stock with shares outstanding
are its (i) Common Stock, having a stated value of $10.00 per share
("Common"), and (ii) $2.60 Cumulative Preferred Stock Series A
("Preferred"), no dividend on which is in arrears. Because of the
nature of the proposed amendment, which changes the name of the Company
only, neither Virginia law nor the Company's Restated Articles of
Incorporation entitles holders of Common or of Preferred to a class vote.
As of the record date of October 19, 1990, there were issued
and outstanding a total of 17,866,128 shares of all such stock
(1,197,131 shares of Preferred and 16,668,997 shares of Common),
of which 17,765,015 shares were entitled to one vote per share on
the amendment. On December 14, 1990, 17,467,200 shares were voted for,
and 47,284 shares were voted against, the amendment. The amendment
thus received on that date a sufficient number of votes, more than
two thirds of the votes entitled to be cast, to be approved.
SOUTHERN RAILWAY COMPANY
By /s/ Arnold B. McKinnon
Arnold B. McKinnon
President and Chief Executive Officer
[SEAL] Attest /s/ Mahlon D. Edwards
Mahlon D. Edwards
Corporate Secretary
Dated: December 14, 1990.
EXHIBIT A
RESTATED ARTICLEDS OF INCORPORATION
OF
SOUTHERN RAILWAY COMPANY
ARTICLE I
The name of the Corporation is SOUTHERN RAILWAY COMPANY.
ARTICLE II
The purposes of the Corporation are to conduct the business of
a railroad anywhere in the United States of America and elsewhere;
to engage generally in the business of transportation as a carrier
of passengers, mail, express, and all kinds and classifications of
freight, petroleum, natural gas, and all other things of every kind
and nature, by means of railroad, motor vehicles, and aircraft; and
to conduct without the State of Virginia any other business that may
be authorized by law.
ARTICLE III
The Corporation shall have authority to issue the following
shares:
Serial Preferred Stock: 10,000,000 shares
Serial Preference Stock: 10,000,000 shares
Common Stock: 50,000,000 shares
All shares shall be without par value.
The following Divisions of this Article III state the respective
matters listed below:
Division Subject Matter
A The relative rights of the Serial Preferred Stock.
B The particular rights of the $2.60 Cumulative
Preferred Stock, Series A.
C The relative rights of the Serial Preference Stock.
D The particular rights of the $3.00 Cumulative
Convertible Preference Stock, Series A.
E The rights of the Common Stock.
F Implementation.
DIVISION A
Serial Preferred Stock
1. Issuance in Series. The Board of Directors is hereby empowered
to cause the Serial Preferred Stock of the Corporation to be issued in
series with such of the variations permitted by clauses (a)-(h), both
inclusive, of this Section 1 as shall have been fixed and determined by
the Board of Directors with respect to any series prior to the issue of
any shares of such series.
The shares of the Serial Preferred Stock of different series may
vary as to:
(a) the number of shares constituting such series and the
designation of such series, which shall be such as to distinguish the
shares thereof from the shares of all other series and classes;
(b) the rate of dividend, the time of payment and, if
cumulative, the dates from which dividends shall be cumulative, and the
extent of participation rights, if any;
(c) 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;
(d) the price at and the terms and condition on which shares
may be redeemed;
(e) the amount payable upon shares in event of involuntary
liquidation;
(f) the amount payable upon shares in event of voluntary
liquidation;
(g) any sinking fund provisions for the redemption or purchase
of shares; and
(h) the terms and conditions on which shares may be converted,
if the shares of any series are issued with the privilege of conversion.
The shares of all series of Serial Preferred Stock shall be
identical except as, within the limitations set forth in
this Section 1, shall have been fixed herein or otherwise
fixed and determined by the Board of Directors prior to the
issuance thereof. All shares of each series of Serial Preferred
Stock shall be equal in all respects.
2. Dividends. The holders of the Serial Preferred Stock of each
series shall be entitled to receive, if and when declared payable by the
Board of Directors, dividends in lawful money of the United States of
America, at the dividend rate for such series, and not exceeding such
rate except to the extent of any participation right. Such dividend
shall be payable on such dates as shall be fixed for such series.
Dividends, if cumulative and in arrears, shall not bear interest.
No dividends shall be declared or paid upon or set apart for the
Serial Preference Stock, for the Common Stock or for stock of any other
class hereafter created ranking junior to the Serial Preferred Stock in
respect of dividends or assets (hereinafter called Junior Stock), and no
shares of Serial Preference Stock, Common Stock or Junior Stock shall be
purchased, redeemed or otherwise reacquired for a consideration, nor
shall any funds be set aside for or paid to any sinking fund therefor,
unless and until full dividends on the outstanding Serial Preferred
Stock at the dividend rate or rates therefor, together with the
full additional amount required by any participation right, shall
have been paid or declared and set apart for payment with respect to all
past dividend periods, to the extent that the holders of the Serial
Preferred Stock are entitled to dividends with respect to any past
dividend period, and the current dividend period, and unless and
until all mandatory sinking fund payments that shall have become
due in respect of any series of the Serial Preferred Stock shall
have been made. Unless full dividends with respect to all past
dividend periods on the outstanding Serial Preferred Stock at the
dividend rate or rates therefor, to the extent that holders of
the Serial Preferred Stock are entitled to dividends with respect
to any particular past dividend period, together with the full
additional amount required by any participation right, shall have
been paid or declared and set apart for payment and all mandatory
sinking fund payments that shall have become due in respect of
any series of the Serial Preferred Stock shall have been made,
no distributions shall be made to the holders of the Serial
Preferred Stock of any series unless distributions are made
to the holders of the Serial Preferred Stock of all series
then outstanding in proportion to the aggregate amounts of
the deficiencies in payments due to the respective series,
and all payments shall be applied, first, to dividends accrued and
in arrears, next, to any amount required by any participation
right, and, finally, to mandatory sinking fund payments.
The terms "current dividend period" and "past dividend period"
mean, if two or more series of Serial Preferred Stock having
different dividend periods are at the time outstanding,
the current dividend period or any past dividend period, as
the case may be, with respect to each such series.
3. Preference on Liquidation, etc. In the event of any
liquidation, dissolution or winding up of the Corporation, the
holders of the Serial Preferred Stock of each series shall be
entitled to receive, for each share thereof, the fixed
liquidation price for such series, plus, in case such
liquidation, dissolution or winding up shall have been voluntary,
the fixed liquidation premium for such series, if any, together
in all cases with a sum equal to all dividends accrued or in
arrears thereon and the full additional amount required by
any participation right, before any distribution of the
assets shall be made to holders of the Serial Preference
Stock, the Common Stock or Junior Stock; but the holders
of the Serial Preferred Stock shall be entitled to no further
participation in such distribution. If, upon any such
liquidation, dissolution or winding up, the assets distributable
among the holders of the Serial Preferred Stock shall
be insufficient to permit the payment of the full preferential
amounts aforesaid, then such assets shall be distributed
among the holders of the Serial Preferred Stock then outstanding
ratably in proportion to the full preferential amounts to which
they are respectively entitled. For the purposes of this Section
3 and of Division B of this Article III, the expression "dividends
accrued or in arrears" means, in respect of each share of the
Serial Preferred Stock of any series at a particular time, an amount
equal to the product of the rate of dividend per annum applicable to
the shares of such series multiplied by the number of years and
any fractional part of a year that shall have elapsed from the
date when dividends on such shares became cumulative to the
particular time in question less the total amount of dividends
actually paid on the shares of such series or declared
and set apart for payment thereon; provided, however, that,
if the dividends on such shares shall not be fully cumulative,
such expression shall mean the dividends, if any, cumulative
in respect of such shares for the period stated in the articles
of serial designation creating such shares less all dividends
paid in or with respect to such period.
DIVISION B
$2.60 Cumulative Preferred Stock, Series A
1. Designation. 1,198,611 shares of Serial Preferred Stock are
hereby designated as shares of $2.60 Cumulative Preferred Stock,
Series A, stated value $50 per share (the Series A Preferred). The
Board of Directors shall have the power to designate additional
shares of Serial Preferred Stock as shares of the Series A Preferred
and to designate shares of the Series A Preferred not theretofore
issued or theretofore issued and reacquired and retired as shares
of other series.
2. Dividends. Dividends on the shares of the Series A Preferred
shall be payable quarterly on March 15, June 15, September 15 and
December 15 of each year at the annual rate of $2.60 per share in
respect of the three months' period ending on the last day of the
calendar month immediately preceding the month of each dividend
payment date (each such three months' period being hereinafter in
this Division B referred to as a Dividend Payment Quarter).
Dividends shall be cumulative from December 1, 1978, in respect of
all shares issued prior to March 1, 1979, and, in respect of all shares
issued on or after March 1, 1979, from the first day of the Dividend
Payment Quarter during which such shares are issued.
3. Redemption and Purchase. The Corporation may, at its option
expressed by resolution of its Board of Directors, at any time or from
time to time, redeem the whole or any part of the Series A Preferred
at the fixed redemption price of $50 per share plus all dividends
accrued or in arrears thereon to the date fixed for redemption.
Notice of any proposed redemption of the Series A Preferred shall
be given by publication at least once in one newspaper printed in
the English language and customarily published on each business
day and, wherever published, of general circulation in the Borough
of Manhattan, City and State of New York, the publication in each such
newspaper to be at least thirty days, and not more than ninety days,
prior to the date fixed for such redemption. Notice of any
proposed redemption of the Series A Preferred shall also be
given by the Corporation by mailing a copy of such notice, at
least thirty days, and not more than ninety days, prior to the date
fixed for such redemption, to the holders of record of the Series A
Preferred to be redeemed at their respective addresses then appearing
on the books of the Corporation, but neither failure to mail such
copy nor any defect therein or in the mailing thereof shall affect
the validity of the proceedings for the redemption of any shares
of the Series A Preferred so to be redeemed. In case of the
redemption of a part only of the Series A Preferred at the time
outstanding, the Corporation shall select by lot or pro rata, as
the board of Directors may determine, the shares so to be redeemed.
On or at any time before the redemption date, the Corporation shall
deposit in trust, for the account of the holders of the shares to be
redeemed, funds necessary for such redemption with a bank or trust
company in good standing, organized under the laws of the United
States of America or of the State of New York, doing business in the
Borough of Manhattan, City and State of New York, and having capital,
surplus and undivided profits aggregating at least $50,000,000,
designated in such notice of redemption. Upon completing
the publication as hereinabove provided of the notice of such
redemption or upon the earlier delivery to such bank or trust
company of irrevocable authorization and direction to begin promptly
and complete such publication of notice and upon the making of such
deposit in trust, then all shares with respect to the redemption of
which such deposit shall have been made and such publication completed
or authorization therefor given shall, whether or not the certificates
therefor shall have been surrendered for cancellation, be
deemed no longer to be outstanding for any purpose, and all rights
with respect to such shares shall thereupon cease and terminate,
except only the right of the holders of the certificates for such
shares to receive, out of the funds so deposited in trust, from
and after the date of such deposit, the amount payable upon the
redemption thereof, without interest.
Subject to the limitations contained in these articles, the
Corporation may also from time to time purchase or otherwise
acquire for a consideration shares of the Series A Preferred.
Shares of the Series A Preferred redeemed, purchased or otherwise
acquired by the Corporation, may be resold or may be retired,
, but such retirement shall not reduce the maximum authorized amount
of the Serial Preferred Stock and such shares shall become authorized
and unissued shares of Serial Preferred Stock undesignated as to series.
4. Liquidation. The fixed liquidation price for the shares of
Series A Preferred, both on voluntary and involuntary liquidation,
shall be $50 per share plus all dividends accrued and in arrears
to the date of payment.
5. Sinking Fund; Conversion; Participation. The shares of
Series A Preferred shall not be entitled to the benefit of any
sinking fund nor shall they have any right of conversion or
participation.
6. Voting Rights. A. The holders of the shares of the Series
A Preferred shall be entitled to one vote per share on all matters.
B. In addition, without the favorable vote of the holders of more
than two-thirds of the outstanding shares of the Series A Preferred
voting as a separate class at a meeting called in accordance with
the provisions of the Virginia Stock Corporation Act and the by-laws
of the Corporation, the Corporation shall not take any of the
following actions:
(i) alter, change or amend any of the provisions of the
Restated Articles of Incorporation of the Corporation or of any
certificate amendatory thereof or supplementary thereto, or of the
by-laws of the Corporation, so as to affect materially and adversely the
designations, preferences, limitations, voting rights or relative or
other rights of any nature of the holders of the shares of the
Series A Preferred; or
(ii) authorize, create or issue a new class, or change a
class with subordinate and inferior rights into a class, of shares
having rights and preferences prior or equal to the rights and
preferences of the holders of shares of the Series A Preferred.
C. Without the favorable vote of the holders of a majority
of the outstanding shares of the Series A Preferred voting as a
separate class at a meeting called in accordance with the
provisions of the Virginia Stock Corporation Act and the by-laws
of the Corporation, the Corporation shall not issue any additional
shares of Serial Preferred Stock, whether shares of the Series A
Preferred or of any other series or class now or hereafter designate,
unless, during a period of twelve consecutive calendar months ending
within the fifteen calendar months preceding the date of issuance of
such additional shares of Serial Preferred Stock, the aggregate of
(a) net income for such period of twelve months;
(b) all income taxes, federal, state, local and foreign,
accrued during such period of twelve months; and
(c) interest expense accrued during such period of twelve
months;
is at least 150% of the aggregate of
(x) interest expense accrued during such period of twelve
months; and
(y) all dividends declared on shares of Serial Preferred
Stock and on any class of shares having rights and preferences
prior or equal to the rights and preferences of the holders of
the shares of Series A Preferred during such period of twelve
months plus the aggregate amount of the dividends proposed
to be paid during a period of twelve months on the shares of
Serial Preferred Stock proposed to be issued, as determined
on a consolidated basis for the Corporation and its
subsidiaries in accordance with generally accepted accounting
principles applicable to common carriers applied on a consistent
basis and excluding all non-recurring extraordinary items of income
and expense and all items of income or expense attributable to the
results of discontinued operations; but nothing in this clause C
shall prevent the initial issuance of all of the shares hereby
designated as shares of the Series A Preferred.
D. If and whenever dividends on any shares of any series of
the Serial Preferred Stock shall not have been paid, in whole or
in part, for six quarterly dividend periods, whether or not
consecutive, and whether or not such dividends shall be cumulative,
then the number of the Directors of the Corporation shall be
increased by two and the holders of the Series A Preferred shall
be entitled, voting as a class together with the holders of any
other series of the Serial Preferred Stock on the holders of which
this right to vote has been conferred by the Certificate of Serial
Designation creating such series (the shares of all such other
series on the holders of which such right is so conferred and the
Series A Preferred being hereinafter collectively called the
Director Voting Preferred), to elect such two additional directors.
Any vacancy among the directors elected by the holders of the
Director Voting Preferred shall be filled by the vote of the other
director elected by such stockholders, or, if not filled with
reasonable promptness by such remaining director, may be
filled by the holders of the Director Voting Preferred at a
meeting thereof called for the purpose upon the notice
hereinafter provided.
At any time when such voting rights shall become vested in the
holders of the Director Voting Preferred, the Board of Directors
or a proper officer of the Corporation shall, upon written request
of the holders of record of not less than 10% of the number of
shares of the Director Voting Preferred then outstanding,
addressed and delivered to any officer of the Corporation,
call a special meeting of all holders of the Director Voting
Preferred then entitled to vote for the election of directors.
Such special meeting shall be called within 15 days after delivery
to an officer of the Corporation of a written request therefor and
shall be held within 45 days after the delivery of such request
at the place designated by the by-laws for the holding of annual
meetings of the stockholders. It shall be the duty of the
Secretary or other proper officer of the Corporation to give such
notice as is required by law of the time, place and purpose
of such meeting to each stockholder of the Corporation.
If such special meeting shall not be so called within
15 days after service of such request upon an officer of the
Corporation, or within 20 days after mailing the same within
the United States of America by registered mail addressed
to an officer of the Corporation at its principal business
office (such mailing to be evidenced by the registry
receipt issued by the postal authorities), then the holders
of record of not less than 10% of the shares of the Director
Voting Preferred then outstanding may designate in writing
one of their number to call such special meeting, and such
special meeting may be called by such person upon like notice
as above provided, to be held at such place as may be designated
in the notice of such meeting. Any holder of the Director
Voting Preferred so designated shall have immediate access
to the stock record books of the Corporation for the purpose of
causing such meeting to be called at the expense of the
Corporation pursuant to these provisions.
On the date of any such special meeting, called and held as
aforesaid, for the election of directors, the number of directors
of the Corporation shall be increased by two to permit the
election by the holders of the Director Voting Preferred of
the number of directors permitted by this clause D.
At any meeting at which the holders of the Director Voting
Preferred shall be entitled to elect directors, the holders of one
third of the then outstanding shares of the Director Voting
Preferred, present in person or by proxy, shall be sufficient
to constitute a quorum, and the vote of the holders of a
majority of such shares so present at any such meeting at which
there shall be a quorum shall be sufficient to elect the members
of the Board of Directors which the holders of the Director
Voting Preferred are entitled to elect as hereinabove provided.
The absence of a quorum of the holders of any other class of
stock at the time outstanding shall not affect the exercise of
such voting rights by the holders of the Director Voting Preferred.
The voting rights of the holders of the Director Voting
Preferred shall continue until all arrearages of dividends on all
series of the Serial Preferred Stock shall have been declared and
paid. At that time the voting rights of the Director Voting
Preferred shall terminate and the terms of office of all directors
elected by the holders of the Director Voting Preferred shall
forthwith terminate, subject to such voting rights being revived
upon recurrence of the conditions described above as giving rise
therefor.
DIVISION C
Serial Preference Stock
1. ISSUANCE IN SERIES. The Board of Directors is hereby
empowered to cause the Serial Preference Stock of the Corporation
to be issued in series with such of the variations permitted by
clauses (a)-(h), both inclusive, of this Section 1 as shall have
been fixed and determined by the Board of Directors with respect
to any series prior to the issue of any shares of such series.
The shares of the Serial Preference Stock of difference series
may vary as to:
(a) the number of shares constituting such series and the
designation of such series, which shall be such as to distinguish the
shares hereof from the shares of all other series and classes;
(b) the rate of dividend, the time of payment and, if
cumulative, the dates from which dividends shall be cumulative, and
the extent of participation rights, if any;
(c) 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;
(d) the price and the terms and conditions on which
shares may be redeemed;
(e) the amount payable upon shares in event of
involuntary liquidation;
(f) the amount payable upon shares in event of
voluntary liquidation;
(g) any sinking fund provisions for the redemption or
purchase of shares; and
(h) the terms and conditions on which shares may be
converted, if the shares of any series are issued with the
privilege of conversation.
The shares of all series of Serial Preference Stock shall be
identical except as, within the limitations set forth in this
Section 1, shall have been fixed herein or otherwise fixed an
determined by the Board of Directors prior to the issuance
thereof. All shares of each series of Serial Preference Stock
shall be equal in all respects.
2. DIVIDENDS. The holders of the Serial Preference Stock of
each series shall be entitled to receive, after prior satisfaction
of all rights of the holders of the Serial Preferred Stock with
respect to dividends and sinking fund obligations, and if and when
declared payable by the Board of Directors, dividends in lawful
money of the United States of America, at the dividend rate for
such series, and not exceeding such rate except to the extent of
any participation right. Such dividend shall be payable on such dates
as shall be fixed for such series. Dividends, if cumulative and
in arrears, shall not bear interest.
No dividends shall be declared or paid upon or set apart for the
Common Stock or for stock of any other class hereafter created ranking
junior to the Serial Preference Stock in respect of dividends or
assets (hereinafter called Subordinate Stock) and no shares of Common
Stock or Subordinate Stock shall be purchased, redeemed or otherwise
reacquired for a consideration, nor shall any funds be set aside for
or paid to any sinking fund therefore, unless and until full dividends
on the outstanding Serial Preference Stock at the dividend rate or
rates therefor, together with the full additional amount required
by any participation right, shall have been paid or declared and set
apart for payment with respect to all past dividend periods, to the
extent that the holders of the Serial Preference Stock are entitled to
dividends with respect to any past dividend period, and the current
dividend period, and unless and until all mandatory sinking fund
payments that shall have become due in respect of all series of the
Serial Preference Stock shall have been made. Unless full dividends
with respect to all past dividend periods on the outstanding Serial
Preference Stock at the dividend rate or rates therefor, to the extent
that holders of the Serial Preference Stock are entitled to dividends
with respect to any particular past dividend period, together with the
full additional amount required by any participation right, shall
have been paid or declared and set apart for payment and all mandatory
sinking fund payments that shall have become due in respect of any
series of the Serial Preference Stock shall have been made, no
distribtutions shall be made to the holders of the Serial Preference
Stock of any series unless distributions are made to the holders of
the Serial Preference Stock of all series then outstanding in
proportion to the aggregate amounts of the deficiencies in payments
due to the respective series, and all payments shall be applied,
first, to dividends accrued and in arrears, next, to any amount
required by any participation right, and, finally, to mandatory
sinking fund payments. The terms "current dividend period" and
"past dividend period" mean, if two or more series of Serial
Preference Stock having different dividend periods are at
the time outstanding, the current dividend period or any past
dividend period, as the case may be, with respect to each such series.
3. PREFERENCE ON LIQUIDATION, ETC. In the event of any
liquidation, dissolution or winding up of the Corporation, and
after prior satisfaction of all claims of holders of the Serial
Preferred Stock, the holders of the Serial Preference Stock of
each series shall be entitled to receive, for each share thereof,
the fixed liquidation price for such series, plus, in case such
liquidation, dissolution or winding up shall have been voluntary,
the fixed liquidation premium for such series, if any, together in
all cases with a sum equal to all dividends accrued or in arrears
thereon and the full additional amount required by any participation
right, before any distribution of the assets shall be made to
holders of the Common Stock or any Subordinate Stock; but the
holders of the Serial Preference Stock shall be entitled to no
further participation in such distribution. If, upon any such
liquidation, dissolution or winding up, the assets distributable
among the holders of the Serial Preference Stock shall be
insufficient to permit the payment of the full preferential amounts
aforesaid, then such assets shall be distributed among the holders
of the Serial Preference Stock then outstanding ratably in proportion
to the full preferential amounts to which they are respectively
entitled. For the purposes of this Section 3 and of Division D
of this Article III, the expression "dividends accrued or in arrears"
means, in respect of each share of the Serial Preference Stock of
any series at a particular time, an amount equal to the product of
the rate of dividend per annum applicable to the shares of such series
multiplied by the number of years and any fractional part of a
year that shall have elapsed from the date when dividends on such
shares became cumulative to the particular time in question less
the total amount of dividends actually paid on the shares of such series
or declared and set apart for paymnent thereon; provided however,
that, if the dividends on such shares shall not fully cumulative,
such expression shall mean the dividends cumulative, if any, in
respect of such shares for the period stated in the articles of
serial designation creating such shares less all dividends paid in
or with respect to such period.
DIVISION D
$3.00 CUMULATIVE CONVERTIBLE PREFERENCE STOCK, Series A
1. DESIGNATION. 366,112 shares of Serial Preference Stock are hereby
designated as shares of $3.00 Cumulative Convertible Preference Stock,
Series A, stated value $50 per share (the Series A Preference).
The Board of Directors shall have the power to designate additional shares
of Serial Preference Stock as shares of the Series A Preference and to
designate shares of the Series A Preference not theretofore issued or
theretofore issued and reacquired and retired as shares of other Series.
2. DIVIDENDS. Dividends on the shares of the Series A
Preference shall be payable quarterly on March 15, June 15, September 15
and December 15 of each year at the annual rate of $3.00 per share in
respect of the three months' period ending on the last day of the
calendar month immediately preceding the month of each dividend payment
date (each such three months' period being hereinafter in this
Division D referred to as a Dividend Payment Quarter). Dividends shall
be cumulative from December 1, 1978, in respect of all shares issued
prior to March 1, 1979, and, in respect of all shares issued on or after
March 1, 1979, from the first day of the Dividend Payment Quarter during
which such shares are issued.
3. REDEMPTION AND PURCHASE. The Corporation may, at its option
expressed by resolution of its Board of Directors, at any time or
from time to time, redeem the whole or any part of the Series A
Preference at the fixed redemption price for such series. During
1979, the fixed redemption price for the shares of Series A Preference
shall be $53 per share, with the fixed redemption price to be reduced
at a rate of 50 cents per share during each succeeding calendar year
until the calendar year 1985 when the redemption price shall be
$50 per share and shall remain unchanged thereafter. In addition,
the redemption price shall at all times include all dividends accrued
or in arrears thereon to the date fixed for redemption. Notice of
any proposed redemption of the Series A Preference shall be given
by publication at least once in one newspaper printed in the
English language and customarily published on each business day and,
wherever published, of general circulation in the Borough of Manhattan,
City and State of New York, the publication in each such newspaper to
be at least thirty days, and not more than ninety days, prior to the date
fixed for such redemption. Notice of any proposed redemption of the Series
A Preference shall also be given by the Corporation by mailing a copy
of such notice, at least thirty days, and not more than ninety
days, prior to the date fixed for such redemption, to the holders of
record of the Series A Preference to be redeemed, at their respective
addresses then appearing on the books of the Corporation; but
neither failure to mail such copy nor any defect therein or in
the mailing thereof shall affect the validity of the proceedings
for the redemption of any shares of the Series A Preference so
to be redeemed. In case of the redemption of a part only of the Series
A Preference at the time outstanding, the Corporation shall select by
lot or pro rata, as the Board of Directors may determine, the shares
so to be redeemed.
On or at any time before the redemption date, the Corporation
shall deposit in trust, for the account of the holders of the shares
to be redeemed, funds necessary for such redemption with a bank or
trust company in good standing, organized under the laws of the
United States of America or of the State of New York, doing business
in the Borough of Manhattan, City and State of New York, and having
capital, surplus and undivided profits aggregating at least
$50,000,000, designated in such notice of redemption. Upon completing
the publication as hereinabove provided of the notice of such
redemption or upon the earlier delivery to such bank or trust
company of irrevocable authorization and direction to begin promptly
and complete such publication of notice and upon the making of such
deposit in trust, then all shares with respect to the redemption of
which such deposit shall have been made and such publication completed
or authorization therefor given shall, whether or not the certificates
therefor shall have been surrendered for cancellation, be deemed no
longer to be outstanding for any purpose, and all rights with
respect to such shares shall thereupon cease and terminate, except only
the right of the holders of the certificates for such shares to
receive, out of the funds so deposited in trust, from and after the
date of such deposit, the amount payable upon the redemption thereof,
without interest.
Subject to the limitations contained in these articles, the
Corporation may also from time to time purchase or otherwise
acquire for a consideration shares of the Serial Preference. Shares of
Series A Preference redeemed, purchased or otherwise acquired by
the Corporation, may be resold or may be retired, but such retirement
shall not reduce the maximum authorized amount of the Serial Preference
Stock and such shares shall become authorized and unissued shares of
Serial Preference Stock undesignated as to series.
4. LIQUIDATION. The fixed liquidation price for the shares of the
Series A Preference, upon voluntary liquidation, shall be the then
current redemption price plus all dividends accrued and in arrears
to the date of payment. The fixed liquidation price, upon involuntary
liquidation, shall be $50 per share plus all dividends accrued and in
arrears to the date of payment.
5. SINKING FUND; PARTICIPATION. The shares of Series A Preference
shall not be entitled to the benefit of any sinking fund nor shall they
have any right of participation.
6. VOTING RIGHTS. A. The holders of the shares of the Series A
Preference shall be entitled to one vote per share on all matters.
In addition, without the favorable vote of the holders of more than
two-thirds of the outstanding shares of the Series A Preference
voting as a separate class at a meeting called in accordance with
the provisions of the Virginia Stock Corporation Act and the by-laws
of the Corporation, the Corporation shall not alter, change or amend
any of the provisions of the Restated Articles of Incorporation of
the Corporation or of any certificate amendatory thereof or
supplementary thereto, or of the by-laws of the Corporation, so
as to affect materially and adversely the designations, preferences,
limitations, voting rights or relative or other rights of any nature
of the holders of the shares of the Series A Preference.
B. If and whenever six quarterly dividends on any shares of any
series of the Serial Preference Stock shall be in arrears, in
whole or in part, whether or not consecutive, then the number of the
Directors of the Corporation shall be increased by two and the
holders of the Series A Preference shall be entitled, voting as a
class together with the holders of any other series of the Serial
Preference Stock on the holders of which this right to vote has been
conferred by the Certificate of Serial Designation creating such series
(the shares of all such other series on the holders of which such
right is so conferred and the Series A Preference being hereinafter
collectively called the Director Voting Preference), to elect such two
additional directors. These directors shall be in addition to the
directors that may be elected by the holders of certain series of
the Serial Preferred Stock. Any vacancy among the directors elected by
the holders of the Director Voting Preference shall be filled by the
vote of the other director elected by such stockholders, or, if not
filled with reasonable promptness by such remaining director, may be
filled by the holders of the Director Voting Preference at a meeting
thereof called for the purpose upon the notice hereinafter provided.
At any time when such voting rights shall become vested in the
holders of the Director Voting Preference, the Board of Directors or
a proper officer of the Corporation shall, upon written request
of the holders of record of not less than 10% of the number of shares
of the Director Voting Preference then outstanding, addressed and
delivered to any officer of the Corporation, call a special meeting
of all holders of the Director Voting Preference then entitled to
vote for the election of directors. Such special meeting shall be
called within 15 days after delivery to an officer of the Corporation
of a written request therefor and shall be held within 45 days
after the delivery of such request at the place designated by
the by-laws for the holding of annual meetings of the stockholders.
It shall be the duty of the Secretary or other proper officer of
the Corporation to give such notice as is required by law of the
time, place and purpose of such meeting to each stockholder of
the Corporation.
If such special meeting shall not be so called within 15 days
after service of such request upon an officer of the Corporation,
or within 20 days after mailing the same within the United States
of America by registered mail addressed to an officer of the
Corporation at its principal business office (such mailing to be
evidenced by the registry receipt issued by the postal authorities),
then the holders of record of not less than 10% of the shares of
the Director Voting Preference then outstanding may designate in
writing one of their number to call such special meeting, and
such special meeting may be called by such person upon like notice
as above provided, to be held at such place as may be designated
in the notice of such meeting. Any holder of the Director Voting
Preference, so designated, shall have immediate access to the
stock record books of the Corporation for the purpose of causing
such meeting to be called the expense of the Corporation pursuant
to these provisions.
On the date of any such special meeting called and held as
aforesaid, for the election of directors, the number of directors
of the Corporation shall be increased by two to permit the election
by the holders of the Director Voting Preference of the number of
directors permitted by this clause B.
At any meeting at which the holders of the Director Voting
Preference shall be entitled to elect directors, the holders of
one-third of the then outstanding shares of the Director Voting
Preference, present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority
of such shares so present at any such meeting at which there shall
be such a quorum shall be sufficient to elect the members of the
Board of Directors which the holders of the Director Voting
Preference are entitled to elect as hereinabove provided. The
absence of a quorum of the holders of any other class of stock at
the time outstanding shall not affect the exercise of such voting
rights by the holders of the Director Voting Preference.
The voting rights of the holders of the Director Voting Preference
shall continue until all arrearages of dividends on all series of
the Serial Preference Stock shall have been declared and paid. At that
time, the voting rights of the Director Voting Preference shall terminate
and the terms of office of all directors elected by the holders of the
Director Voting Preference shall forthwith terminate, subject to such
voting rights being revived upon recurrence of the conditions described
above as giving rise thereto.
7. CONVERSION RIGHT. A. The Series A Preference shall be
convertible at any time prior to redemption at the option of the
holders thereof into fully paid and nonassessable shares of Common Stock
of the Corporation, subject to the terms and provision of this
Section 7, at the rate of one share of Common Stock for each share of
Series A Preference, subject to adjustment pursuant to clause B below.
The conversion shall be made at the office of the transfer agent for
the Corporation in New York, New York, or Richmond, Virginia, and at
such other place or places, if any, as the Board of Directors
may determine. All shares of Series A Preference surrendered for
conversion shall be endorsed in blank or accompanied by proper
instruments of assignment and transfer thereof duly executed in blank
and shall be accompanied by a notice stating that the holder desires
to convert such shares into Common Stock. As promptly as practicable
after the receipt of the notice to convert and the surrender of such
stock as aforesaid, the Corporation shall, subject to clause D below,
issue and deliver at such office or agency to such holder, or on his
written order, a certificate or certificates for the number of full
shares of Common Stock issuable on such conversion in accordance with
the provisions of this Section 7 and cash, as provided in paragraph
(vi) of clause B below, in respect of any fraction of a share of Common
Stock otherwise issuable upon such conversion. Such conversion
shall be deemed to have been effected immediately prior to the close
of business on the date on which the notice to convert, along with the
certificate or certificates for the stock to be converted, shall
have been delivered and surrendered as aforesaid, and the person or
persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall
be deemed to have become on such date the holder or holders of record
of the shares represented thereby. Upon conversion, the Corporation
shall not make any payment or adjustment on account of accrued
dividends on the Series A Preference surrendered for conversion.
Whenever reference is made in this Section 7 to Common Stock, the term
Common Stock shall mean stock of the Corporation of any class, whether
now or hereafter authorized which has the right to participate in the
distribution of earnings of the Corporation without limit as to
amount or percentage.
B. The number of shares of Common Stock into which shares of
Series A Preference are convertible shall be subject to adjustment
from time to time only upon the happening of any of the following
events on or after January 1, 1978:
(i) In case the Corporation shall (1) take a record of the
holders of Common Stock for the purpose of entitling them to receive
a dividend declared payable in shares of Common Stock, (2) subdivide
the outstanding shares of Common Stock or (3) combine the outstanding
shares of Common Stock into a smaller number of shares, each holder
of shares of Series A Preference shall thereafter be entitled upon
the conversion of each share thereof held by him to receive for each
such share the number of shares (including any fraction of a share)
of Common Stock which he would have owned or have been entitled to
receive after the happening of that one of the events described
above which shall have happened had such share of Series A
Preference been converted immediately prior to the happening of
such event into the shares of Common Stock into which it was then
convertible, such adjustment to became effective immediately after
the opening of business on the day next following (x) the record
date for any such dividend or (y) the day upon which such
subdivision or combination shall become effective, as appropriate.
(ii) In case of any reclassification of Common Stock or the
consolidation or merger of the Corporation with or into another
corporation or in case of any sale or conveyance to another
corporation of all or substantially all the property of the
Corporation, each holder of shares of Series A Preference shall
have the right thereafter to convert each share held by him into
the kind and amount of shares of stock, other securities, cash and
property receivable upon such reclassification, consolidation,
merger, sale or conveyance by a holder of the number of shares of
Common Stock Into which such share might have been converted
immediately prior to such reclassification, consolidation, merger,
sale or conveyance, and shall have no other conversion rights;
in any such event, effective provision hall be made in the
certificate of incorporation of the resulting or surviving
corporation or otherwise, so that the provision set forth
herein for the protection of the conversion rights of the shares of
Series A Preference shall thereafter be applicable, as nearly as
reasonably may be, to any such other hares of stock, other
securities, cash and property deliverable upon conversion of the
shares of Series A Preference, or other convertible stock or
securities received by the holders in place thereof, and any such
resulting or surviving corporation shall expressly assume the obligation
to deliver, upon the exercise of the conversion privilege, such
shares, other securities, cash or property as the holders of the
shares of Series A Preference, or other convertible stock or
securities received by the holders in place thereof, shall be
entitled to receive pursuant to the provisions hereof, and to make
provision for the protection of the conversion right as above
provided. In case Securities other than Common Stock, cash or
property shall be issuable, payable or deliverable by the Corporation
upon conversion as aforesaid, then all references in this Section
7 shall be deemed to apply, so far as appropriate and as nearly
as may be, to such other securities, cash or property.
(iii) In case the Corporation shall issue rights or warrants
to holders of its Common Stock entitling them to subscribe for
or purchase shares of Common Stock at a price per share less than
the current market price per share of such Common Stock (as defined
in paragraph (v) below) at the record date for the determination of
stockholders entitled to receive such rights or warrants, the
number of shares of Common Stock into which each share of Series A
Preference shall thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which
such share of Series A Preference was theretofore convertible by
a fraction, of which the numerator shall be the number of shares
of Common Stock outstanding on the date of issuance of such rights
or warrants plus the number of additional shares of Common Stock
offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights or warrants plus the number
of shares of Common Stock which the aggregate offering price of
the total number of shares so offered would purchase at such
current market price. Such adjustment shall become effective as
of the opening of business on the date on which such rights or
warrants are issued. The provisions of this paragraph (iii)
shall not apply to any rights with respect to any shares of
Common Stock issued pursuant to any stock option, stock purchase
or other employee benefit plan.
(iv) In case the Corporation shall distribute to the holders of
its Common Stock evidences of its indebtedness or assets or shares
of stock of any class other than its Common Stock (excluding
distributions referred to in paragraph (i) above as to which an
adjustment is thereby required and cash dividends to the extent
permitted under applicable state law) or rights or warrants to
subscribe for evidences of indebtedness or assets (excluding
those referred to in paragraph (iii) above), then in each such
case the number of shares (including any fraction of a share) of
Common Stock into which each share of Series A Preference shall
thereafter be convertible shall be determined by multiplying the
number of shares of Common Stock into which such share of Series
A Preference was theretofore convertible by a fraction, of which
the numerator shall be the current market price per share of
Common Stock (as defined in paragraph (v) below) at the record
date for the determination of stockholders entitled to receive
such distribution, and of which the denominator shall be such
current market price per share of the Common Stock, less the then
fair market value (as determined by the Board of Directors of the
Corporation, whose determination shall be conclusive and described
in a statement filed at each office designated for the conversion
of Series A Preference) of the portion of the assets or evidences
of indebtedness or of the shares or of such subscription rights
or warrants so distributed applicable to one share of Common Stock.
Such adjustment shall become effective as of the opening of
business on the date on which such distribution is made.
(v) For the purpose of any computation under paragraphs (iii)
and (iv) above, the current market price per share of Common
Stock at any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days commencing
45 business days before the day in question. The closing price for
each day shall be the last reported sales price regular way or, in
case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in either
case on the New York Stock Exchange. The term "business day" as
used in this paragraph (v) means any day on which said Exchange
shall be open for trading.
(vi) No fractional share of Common Stock shall be issued upon
any conversion but, in lieu thereof, there shall be paid to each
holder of shares of Series A Preference surrendered for conversion
who but for the provisions of this paragraph (vi) would be entitled
to receive a fraction of a share on such conversion, as soon as
practicable after the date such shares are surrendered for conversion,
an amount in cash equal to the same fraction of the market value
of a full share of Common Stock. For such purpose, the market value
of a share of Common Stock shall be the last reported sale price
regular way on the day immediately preceding the date upon which
shares are surrendered for conversion, or, in case no such sale
takes place on such day, the average of the reported closing bid
and asked prices regular way on such day, in either case on the
New York Stock Exchange.
(vii) No adjustment in the number of shares of Common Stock
into which each share of Series A Preference is convertible shall
be required unless such adjustment would require an increase or
decrease of at least 1/100th of a share in the number of shares
of Common Stock into which such share is then convertible;
provided, however, that any adjustments which by reason of
this paragraph (vii) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
(viii) Whenever any adjustment is required in the shares into
which each share of Series A Preference is convertible, the
Corporation shall forthwith (x) keep available at each of its offices
at which shares of Series A Preference are convertible a statement
describing in reasonable detail the adjustment and the method of
calculation used and (y) cause a copy of such statement to be mailed
to the holders of record of the outstanding shares of Series A
Preference.
C. The Corporation shall at all times reserve and keep
available out of its treasury stock or its authorized but unissued
stock, solely for the purpose of effecting the conversion of shares
of Series A Preference, that number of shares of Common Stock
equal to the number into which all shares of Series A Preference
at the time outstanding are convertible.
D. The Corporation will pay any and all issue and other
taxes that may be payable in respect of any issue or delivery
of shares of Common Stock on conversion of shares of Series A
Preference pursuant hereto. The Corporation shall not, however,
be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of any shares
of Common Stock in a name other than that in which the
shares of Series A Preference so converted were registered and
no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the
Corporation the amount of any such tax or has established,
to the satisfaction of the Corporation, that such tax has been paid.
E. Shares of Series A Preference converted into Common
Stock shall be from time to time cancelled and retired in the
manner provided by law and shall thereafter become authorized and
unissued shares undesignated as to series.
DIVISION E
COMMON STOCK
1. VOTING RIGHTS. Except as otherwise provided herein, the
holders of shares of the Common Stock shall he entitled to one
vote per share on all matters.
2. DIVIDENDS. After prior satisfaction of the dividend rights
of and the sinking fund obligations to the holders of the Serial
Preferred Stock and the Serial Preference Stock, the holders of
shares of the Common Stock shall be entitled to receive dividends
as, when and in the amounts declared by the Board of Directors.
3. PREEMPTIVE RIGHTS. No holder of any share of Common Stock
shall be entitled to the preemptive right to subscribe to or
purchase any shares of Common Stock or any securities convertible
into shares of Common Stock or any warrants, rights or options
to purchase shares of Common Stock.
4. DISSOLUTION. Upon the liquidation, dissolution or winding
up of the Corporation, after the satisfaction of the rights of
all creditors and of the prior rights of the holders of the
Serial Preferred Stock and the Serial Preference Stock, the
holders of the Common Stock shall be entitled to share pro rata the
remaining assets of the Corporation.
DIVISION F
IMPLEMENTATION
On the day on which these Restated Articles of Incorporation
become effective by the issuance of a certificate of amendment
by the State Corporation Commission of Virginia (the Effective Date),
each five shares of Preferred Stock, $10 par value, of the
Corporation then issued shall automatically become one share
of the Series A Preferred.
No fractional shares shall be issued. Any stockholder otherwise
entitled to a fractional share of the Series A Preferred, shall,
upon the surrender of his certificate(s) for shares of Preferred Stock,
$10 par value, be afforded the opportunity, during the thirty-day
period immediately following the Effective Date, of instructing
First & Merchants National Bank, Richmond, Virginia as Agent Bank,
in writing to purchase an additional fractional share interest
sufficient to make a full share of the Series A Preferred.
If such stockholder does not so notify the Agent Bank, such Bank
shall sell the fractional share interest and remit the proceeds to
such stockholder. Any such purchase or sale by the Agent Bank shall be
made at least forty days and not more than fifty days following the
Effective Date at the prevailing market price.
No holder of shares of Preferred Stock, $10 par value, shall,
after the Effective Date, be entitled to receive dividends or to
vote or to exercise any other rights as a stockholder until the
certificate(s) representing such shares are surrendered for
certificates for shares of the Series A Preferred. But upon
such surrender all dividends not paid because of this provision
shall be paid.
The shares of $3 Three Year Cumulative Convertible Serial Preference
Stock, Series A, issued on the Effective Date (other than shares which,
on the Effective Date, have been converted into Common Stock but have
not previously been cancelled) shall automatically become shares
of the Series A Preference without any surrender of the certificates
therefor. Shares of $3 Three Year Cumulative Convertible Serial
Preference Stock, Series A, which, on the Effective Date, have
been converted into Common Stock but have not previously been
cancelled, shall be cancelled. The shares of Common Stock then
issued shall remain issued as shares of Common Stock authorized hereby.
On the Effective Date, the stated capital of the Corporation
shall be fixed at the aggregate of $50 in respect of each share of
the Series A Preferred then issued, $50 in respect of each share
of the Series A Preference then issued and $10 in respect of
each share of Common Stock then issued. Thereafter, whenever shares
of the Series A Preference are surrendered for conversion into
shares of Common Stock, and at the time that the Board of
Directors shall take action to cancel the shares surrendered for
conversion in accordance with clause E of Section 7 of Division
D of this Article III, stated capital of the Corporation shall,
at the time of such cancellation and in accordance with Articles
of Reduction then to be filed with the State Corporation Commission
of Virginia, be reduced by $50 in respect of each share so
surrendered for conversion less $10 in respect of each share of
Common Stock issued upon such conversion.
ARTICLE IV
Until otherwise changed by the by-laws, the number of directors
shall be twelve. The directors shall be divided into three classes
as nearly equal in number as possible with the term of each director
(or his successor in the case of a director not elected by the
stockholders) to expire at the third annual meeting after his
election (or the election of his predecessor). Directors serving at
the Effective Date shall continue in office for the respective
terms for which they were elected. Upon any increase in the number
of directors, the additional vancancies shall be assigned by the
Board of Directors to classes in such a manner that the number of
each class shall be as nearly equal as possible and the vacancies
shall be filled for terms corresponding to the classes to which
the vacancies are so assigned.
The provisions of the preceding paragraph shall not, however,
apply to any directors elected by the holders of certain series of
the Serial Preferred Stock pursuant to clause D of Section 6 of
Division B of Article III nor to any directors elected by the
holders of certain series of the Serial Preference Stock pursuant
to clause B of Section 6 of Division D of Article III. All of
such directors shall be elected for terms expiring at the
adjournment of the next annual meeting of the stockholders or
earlier if they shall no longer be entitled to serve as directors.