EXHIBIT 3(i)
RESTATED ARTICLES OF INCORPORATION
OF
SOUTHWEST GAS CORPORATION
A CALIFORNIA CORPORATION
I.
The name of said corporation is and shall be
SOUTHWEST GAS CORPORATION
II.
The purposes for which it is formed are:
(a) Primarily to engage in, conduct and carry on the business of
manufacturing, generating, producing, buying, transmitting, distributing,
selling and otherwise disposing of gas and/or electricity to be used for
light, heat, refrigeration, power, and all other lawful purposes, and to
supply counties, cities, cities and counties, villages, towns, and other
localities and places in the State of California and the other states and
territories of the United States and in foreign countries, and the inhabitants
thereof, with gas and/or electricity, to be used for light, heat,
refrigeration and power, and for all other uses to which gas and/or
electricity may be put;
(b) To construct, maintain and operate gas plants, with all buildings,
structures, pipes, mains, machinery, appliances and apparatus proper or
convenient for the manufacture, maintenance, operation, distribution and sale
of gas; to construct, maintain and operate electric plants, with all power
houses, generating stations, transmission lines, structures, machinery,
apparatus, appliances and materials proper or convenient for the generation,
transmission, distribution and sale of electricity;
(c) To acquire, own, lease, construct, occupy or use gas works and/or
electric works, and to maintain and operate the same;
(d) To acquire, hold, store, sell and distribute gas and/or electricity
by any other means and in addition to those herein provided;
(e) To acquire by purchase, appropriation, lease, condemnation or
otherwise, to hold, enjoy, mortgage, pledge, assign and convey lands,
franchises, water rights, rights-of-way and other easements, patents and
patent rights, and all other real and personal property, which may at any time
be necessary or proper for the convenient and profitable transaction of the
business of said corporation, and for the exercise of its purpose, and of any
part hereof, and of its powers and franchises;
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(f) To acquire by purchase, subscription or otherwise, to hold, sell,
assign, transfer, mortgage, pledge or otherwise dispose of, shares of the
capital stock of, and bonds, debentures or other evidences of indebtedness
created or issued by any corporation or corporations, and to exercise all
rights and powers of ownership concerning the same, including the right to
vote thereon;
(g) To borrow money, to execute bonds, promissory notes, bills of
exchange, debentures and other obligations and evidences of indebtedness of
all kinds;
(h) To mortgage all or any part of the property, rights, interests and
franchises of the corporation, and to pledge all or any bonds, promissory
notes, bills of exchange, debentures and all securities and contracts of any
kind at any time owned by said corporation;
(i) To aid any other corporation by loan or gift, or by guaranty of any
or all of its obligations, or otherwise; to engage in, conduct and carry on
any business incidental, necessary, useful or auxiliary to the purpose, or any
part thereof, for which said corporation is formed;
(j) To exercise the right of eminent domain in any manner which may now
or hereafter be allowed or provided by law in the acquisition of any property
or rights required by the corporation for the purposes of its business;
(k) To act as principal, agent, joint venturer, partner or in any other
capacity which may be authorized or approved by the Board of Directors of this
corporation;
(l) In carrying on its business, or for the purpose of attaining or
furthering its purpose, or any part thereof as herein set forth and any other
purpose or object deemed incidental, necessary, useful or auxiliary to its
purpose, or any part thereof, to do any and all other acts or things and to
exercise any and all other powers which a natural person might do or exercise,
and which are now or may hereafter be authorized by law;
(m) The foregoing clauses shall be construed both as objects and
powers, and it is hereby expressly provided that the enumeration herein of
specific objects and powers shall not be held to limit or restrict in any way
the general powers of this corporation.
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III.
The County in this state where the principal office for the transaction
of the business of this corporation is to be located is the County of
San Bernardino.
IV.
This corporation is authorized to issue three classes of shares of stock,
to be designated respectively, as "Preferred Stock"; "Preference Stock"; and
"Common Stock." The total number of shares which this corporation shall have
authority to issue is 52,000,000 and the aggregate par value of all shares
that are to have a par value shall be $85,000,000. The number of shares of
Preferred Stock shall be 5,000,000 and without par value; the number of shares
of Preference Stock shall be 2,000,000 and shall have a par value of each
share of said class of $20; the number of shares of Common Stock shall be
45,000,000 and shall have a par value of each share of said class of $1.
1. PREFERRED STOCK
Except as otherwise provided by law, shares of Preferred Stock, in
preference to the holders of the Preference Stock and the Common Stock, may be
issued from time to time, in one or more series, and the Board of Directors of
the corporation is authorized to fix or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any such series.
2. PREFERENCE STOCK
Except as otherwise provided by law, shares of Preference Stock, in
preference to the holders of the Common Stock, may be issued from time to
time, in one or more series, and the Board of Directors of the corporation is
authorized to fix or alter the dividend rights, dividend rates, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, or the liquidation preferences of
any wholly unissued series, together with the designation of any such series
and the number of shares which shall constitute any such unissued series, and
to increase or decrease (but not below the number of shares of such series
then outstanding) the number of shares of any series subsequent to the issue
of that series.
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3. COMMON STOCK
Except as otherwise provided by law, shares of Common Stock may be issued
from time to time, in one or more series, and the Board of Directors of the
corporation is authorized to fix the initial dividend rate of any wholly
unissued series together with the designation of any such series and the
number of shares which shall constitute any unissued series, and to increase
or decrease (but not below the number of shares of such series then
outstanding) the number of shares of any such series subsequent to the
issuance of that series.
Dividends on all series of Common Stock shall have the same record and
payment dates, and no dividends may be paid on any series unless dividends at
the rates required hereby are paid concurrently on all series. No series of
Common Stock shall have preference over any other series as to the payment of
dividends, but the amount of dividends paid may vary among the series
outstanding.
All shares of Common Stock outstanding at the date hereof are hereby
designated as and shall hereafter continue to be Original Common Stock, and
all shares of Common Stock at any time authorized but unissued, until and
unless otherwise designated by the Board of Directors, shall be and continue
to be Original Common Stock, for a total of 45,000,000 shares of this series.
Unless otherwise designated by the Board of Directors, all shares of Common
Stock hereafter issued and all shares of Common Stock which the corporation
may become obligated to issue upon the conversion of any security convertible
into Common Stock and/or upon the exercise of options, warrants or rights to
purchase Common Stock shall be considered to be Original Common Stock.
Subject to the voting rights and other rights, preferences and privileges
above provided in this Article IV with respect to the Preferred Stock and the
Preference Stock, and except as otherwise provided by law, shares of all
series of Common Stock and/or the holders thereof shall have full voting
rights and powers for the election of directors and for all other purposes,
voting together as a single class irrespective of series, and, subject to the
provisions specified hereinabove, shall be entitled to receive dividends as
and when they are declared by the Board of Directors. Upon liquidation,
distribution or winding up of the corporation, the assets of the corporation
available for distribution to the holders of the Common Stock shall be
distributed ratably among the holders of all shares of the Common Stock at the
time outstanding irrespective of and without reference to series. The Common
Stock shall have no conversion, subscription or preemptive rights, nor shall
it be subject to redemption, call or assessment.
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<PAGE)
IV-A
1. SUPERMAJORITY OF SHARES REQUIRED TO APPROVE CERTAIN TRANSACTIONS
The affirmative vote of the holders of not fewer than 85 percent of the
outstanding shares of "Voting Stock" (as hereinafter defined) of this
corporation shall be required for the approval or authorization of any
"Business Combination" (as hereinafter defined) of this corporation with any
"Dominant Stockholder" (as hereinafter defined); provided, however, that the
85 percent voting requirement shall not be applicable if any of the following
shall occur:
(a) The Board of Directors of this corporation, by the affirmative vote
of not fewer than 65 percent of the members thereof, expressly approves in
advance the acquisition of the outstanding shares of Voting Stock that caused
such Dominant Stockholder to become a Dominant Stockholder; or
(b) The Board of Directors of this corporation, by the affirmative vote
of not fewer than 65 percent of the members thereof, expressly approves such
Business Combination in advance of such Dominant Stockholder becoming a
Dominant Stockholder; or
(c) The Board of Directors of this corporation, by the affirmative vote
of not fewer than 85 percent of the members thereof, approves such Business
Combination subsequent to such Dominant Stockholder becoming a Dominant
Stockholder; or
(d) The Board of Directors of this corporation, by the affirmative vote
of not fewer than 85 percent of the members thereof, shall determine that the
cash or fair market value of the property, securities or other consideration
to be received per share by holders of Voting Stock of this corporation (which
shall include, without limitation, all Voting Stock of this corporation
retained by them) in the Business Combination is not less than the "Highest
Per Share Price" or the "Highest Equivalent Per Share Price" (as these terms
are hereinafter defined) paid by the Dominant Stockholder in acquiring any of
its holdings of this corporation's Voting Stock.
2. DEFINITIONS
For the purposes of this Article IV-A;
(a) BUSINESS COMBINATION. The term "Business Combination" shall
include, without limitation, (i) any merger or consolidation of this
corporation with or into any Dominant Stockholder or any entity controlled by
or under common control with a Dominant Stockholder, (ii) any merger or
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consolidation of a Dominant Stockholder with or into this corporation or any
entity controlled by or under common control with this corporation, (iii) any
sale, lease, exchange, transfer or other disposition of all or substantially
all of the property and assets of this corporation to a Dominant Stockholder,
or any entity controlled by or under common control with a Dominant
Stockholder, (iv) any purchase, lease, exchange, transfer or other acquisition
by this corporation of all or substantially all of the property and assets of
a Dominant Stockholder, or any entity controlled by or under common control
with a Dominant Stockholder, (v) any recapitalization of this corporation that
would have the effect of increasing the voting power of a Dominant
Stockholder, and (vi) any agreement, contract or other arrangement providing
for any of the transactions described in this definition of Business
Combination.
(b) DOMINANT STOCKHOLDER. The term "Dominant Stockholder" shall mean
and include (i) any individual, corporation, partnership or other person or
entity which, together with its "Affiliates" and "Associates", "Beneficially
Owns" (as these terms are hereinafter defined) in the aggregate 10 percent or
more of the outstanding Voting Stock of this corporation, and any Affiliate or
Associate of any such individual, corporation, partnership or other person or
entity.
A Dominant Stockholder shall be deemed to have acquired a share of
Voting Stock of this corporation at the time when such Dominant Stockholder
became the Beneficial Owner thereof. Without limitation, any share of Voting
Stock of this corporation that any Dominant Stockholder has the right to
acquire at any time pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed to be Beneficially
Owned by the Dominant Stockholder and to be outstanding for purposes of this
subparagraph (b).
(c) AFFILIATE. An "affiliate" of, or a person "affiliated" with, a
specified person such as a Dominant Stockholder, is a person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the person specified.
(d) ASSOCIATE. The term "associate", used to indicate a relationship
with any person such as a Dominant Stockholder, means (i) any corporation or
organization of which such person is an officer or partner or is, directly or
indirectly, the beneficial owner of 10 percent or more of any class of equity
securities, (ii) any trust or other estate in which such person has a
substantial beneficial interest or as to which such person serves as trustee
or in a similar fiduciary capacity, and (iii) any relative or spouse of such
person, or any relative of such spouse, who has the same home as such person
or who is a director or officer of such person or any of its parents or
subsidiaries.
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(e) BENEFICIALLY OWNS OR BENEFICIAL OWNER. A "beneficial owner" of, or
one who "beneficially owns", a security includes any person who, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, (i) has the right to acquire such security through the exercise of
any option, warrant or right or through the conversion of another security
into such security; or (ii) has or shares voting power which includes the
power to vote, or to direct the voting of, such security; and/or (iii) has or
shares investment power which includes the power to dispose of, or to direct
the disposition of, such security.
(f) VOTING STOCK. The term "Voting Stock" shall mean all of the
outstanding shares of Common Stock (together, solely for the purpose of
identifying a Dominant Stockholder, with certain authorized but unissued
shares that a Dominant Stockholder is deemed to Beneficially Own), and each
reference to a proportion of shares of Voting Stock shall refer to such
proportion of the votes entitled to be cast by such shares.
(g) HIGHEST PER SHARE PRICE AND HIGHEST EQUIVALENT PER SHARE PRICE.
The terms "Highest Per Share Price" and "Highest Equivalent Per Share Price"
as used in this Article IV-A shall mean the following:
The Highest Per Share Price shall mean the highest price that can be
determined to have been paid at any time by the Dominant Stockholder for any
share of Voting Stock. If there are any securities of this corporation
outstanding ("related securities" herein) that entitle the holder thereof to
purchase, or that are convertible into, Voting Stock, the Highest Equivalent
Per Share Price shall mean, with respect to each type, class and/or series of
related securities, the amount in each case determined by the affirmative vote
of not fewer than 85 percent of the members of the Board of Directors, on
whatever basis they believe in good faith to be appropriate, to be the highest
per share price equivalent of the highest price that can be determined to have
been paid at any time by the Dominant Stockholder for any such related
securities. In determining the Highest Per Share Price and Highest Equivalent
Per Share Price, all purchases of Voting Stock and related securities of this
corporation by the Dominant Stockholder shall be taken into account regardless
of whether they occurred before or after the Dominant Stockholder became a
Dominant Stockholder. With respect to shares of Voting Stock owned by
Affiliates, Associates or other persons whose ownership is attributed to a
Dominant Stockholder, if the price paid by such Dominant Stockholder for such
shares is not determined by the affirmative vote of not fewer than 85 percent
of the members of the Board of Directors, the price so paid shall be deemed to
be the higher of (i) the price paid upon the acquisition thereof by the
Affiliate, Associate or other person or (ii) the market price of the shares in
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question at the time when the Dominant Stockholder became the Beneficial Owner
thereof. The Highest Per Share Price and the Highest Equivalent Per Share
Price shall include any brokerage commissions, transfer taxes and soliciting
dealers' fees or other value paid by the Dominant Stockholder with respect to
all Voting Stock and related securities acquired by the Dominant Stockholder.
3. SUPERMAJORITY OF SHARES REQUIRED TO AMEND OR REPEAL THIS ARTICLE
The provisions set forth in this Article IV-A may not be amended,
altered, changed or repealed in any respect unless approved by the affirmative
vote of the holders of not fewer than 65 percent of the outstanding shares of
Voting Stock (as defined in this Article IV-A) at a meeting of the
shareholders duly called and unless the consideration of any such amendment,
alteration, change or repeal shall have been included as an agenda item in the
notice of such meeting; provided, however, that if there is a Dominant
Stockholder (as defined in this Article IV-A) on the record date for
determining the holders of Voting Stock entitled to vote at such meeting, any
such amendment, alteration, change or repeal must be approved by the
affirmative vote of the holders of not fewer than 85 percent of the
outstanding shares of Voting Stock of this corporation.
V.
The directors of this corporation need not be shareholders.
VI.
A series of shares of the Preference Stock of the corporation has been
established and the number of shares constituting such series and the
designation thereof, and the rights, preferences, privileges and restrictions
of the shares of such series, are fixed and established as follows:
1. DESIGNATION AND AMOUNT
The shares of such series shall be designated as "Junior Participating
Preference Stock" (the "Junior Preference Stock"), the number of shares
constituting the Junior Preference Stock shall be 2,000,000 and the par value
shall be $20 per share. Such number of shares may be decreased by resolution
of the Board of Directors; PROVIDED, that no decrease shall reduce the number
of shares of Junior Preference Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the conversion
of any outstanding securities issued by the corporation convertible into
Junior Preference Stock.
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2. DIVIDENDS AND DISTRIBUTIONS
(a) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Junior Preference Stock with respect to dividends, the holders of shares of
Junior Preference Stock, in preference to the holders of Common Stock of the
corporation, 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 first 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 Junior
Preference Stock, in an amount per share (rounded to the nearest cent) equal
to the greater of (i) $1.00 or (ii) 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 Junior Preference Stock. In the event the
corporation shall at any time declare or pay any dividend on the 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 to which holders of shares of Junior Preference Stock were entitled
immediately prior to such event under clause (ii) of the preceding sentence
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.
(b) The corporation shall declare a dividend or distribution on the
Junior Preference 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 Junior Preference Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
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(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Junior Preference Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, 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 Junior Preference 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 Junior
Preference 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 Junior Preference 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.
3. VOTING RIGHTS
The holders of shares of Junior Preference Stock shall have the following
voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Junior Preference Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the shareholders of the corporation.
(b) Except as otherwise provided herein, or in the Articles of
Incorporation or by law, the holders of shares of Junior Preference Stock and
the holders of shares of Common Stock and any other capital stock of the
corporation having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the corporation.
(c) In the event the corporation shall at any time declare or pay any
dividend on the 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 to which holders of shares
of Junior Preference Stock were entitled immediately prior to such event under
paragraph (a) of this Section 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.
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4. CERTAIN RESTRICTIONS
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Junior Preference 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 Junior Preference Stock
outstanding shall have been paid in full, the corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preference Stock;
(ii) declare or pay dividends, 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 Junior Preference Stock,
except dividends paid ratably on the Junior Preference 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 upon
liquidation, dissolution or winding up) to the Junior Preference Stock,
provided that the corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares
of any stock of the corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Junior Preference
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Junior Preference Stock, or any shares of stock ranking on a
parity with the Junior Preference 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.
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(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,
purchase or otherwise acquire such shares at such time and in such manner.
5. REACQUIRED SHARES
Any shares of Junior Preference Stock purchased or otherwise acquired by
the corporation 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 Preference Stock and may
be reissued as part of a new series of Preference Stock subject to the
conditions and restrictions on issuance set forth herein, in the Articles of
Incorporation or as otherwise required by law.
6. LIQUIDATION, DISSOLUTION OR WINDING UP
Upon any liquidation, dissolution or winding up of the corporation, no
distribution shall be made (i) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Junior Preference Stock unless, prior thereto, the holders of shares of
Junior Preference Stock shall have received the greater of (x) $100 per share,
plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, or (y)
100 times the aggregate amount to be distributed per share to holders of
Common Stock, or (ii) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with
the Junior Preference Stock, except distributions made ratably on the Junior
Preference Stock and all 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
declare or pay any dividend on the 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
to which holders of shares of Junior Preference Stock were entitled
immediately prior to such event under clause (i) of the preceding sentence
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.
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7. 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 each share of Junior Preference Stock shall at
the same time be similarly exchanged or changed into 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 declare or pay any dividend on the 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 set forth in the preceding sentence with respect to the exchange or
change of shares of Junior Preference 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.
8. REDEMPTION
The shares of Junior Preference Stock shall not be redeemable.
9. RANK
The Junior Preference Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to the Preferred Stock class,
and any other series of the Preference Stock class hereafter created and
senior to the Common Stock classes.
10. AMENDMENT
The Articles of Incorporation of the corporation shall not be amended in
any manner which would alter or change the powers, preferences or special
rights of the Junior Preference Stock so as to affect them adversely without
the affirmative vote of the holders of at least a majority of the outstanding
shares of Junior Preference Stock, voting together as a single class.
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VII.
1. The liability of directors of the corporation for monetary damages
shall be eliminated to the fullest extent permissible under California Law.
2. The corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted
by Section 317 of the California Corporations Code, subject only to the
applicable limits set forth in Section 204 of the California Corporations Code
with respect to actions for breach of duty to the corporation and its
shareholders.
3. The corporation is authorized to purchase and maintain insurance from
any insurance company, whether or not the shares of such insurance company are
wholly or partially owned by the corporation, on behalf of agents (as defined
in Section 317 of the California Corporations Code) against liability asserted
against or incurred by the agent in such capacity or arising out of the
agent's status, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the
applicable limits set forth in Section 204 of the California Corporations
Code.
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3. The foregoing amended and restated Articles of Incorporation were duly
approved by the Board of Directors of this corporation and the amendments to
the Articles of Incorporation contained therein were approved by the required
vote of shareholders in accordance with Section 903 of the California
Corporation Code; the total number of outstanding shares of the only class
entitled to vote with respect to the amendment was 26,265,569 shares of common
stock; and the number of shares of common stock voting in favor of the
amendment equaled or exceeded the vote required, such required vote being a
majority of the outstanding shares of common stock. At the time the
amendments were submitted to shareholders for approval and currently, there
were no outstanding shares of authorized preferred stock, cumulative preferred
stock, preference stock, or second preference stock.
4. We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this Certificate are true
and correct of our own knowledge.
Executed at Las Vegas, Nevada, this 20th day of November 1996.
/s/ Michael O. Maffie
-------------------------------------
Michael O. Maffie
President and Chief Executive Officer
/s/ George C. Biehl
-------------------------------------
George C. Biehl
Senior Vice President/Chief Financial
Officer and Corporate Secretary
15