RESTATED CERTIFICATE OF INCORPORATION
OF
WESTMORELAND COAL COMPANY
WESTMORELAND COAL COMPANY, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Westmoreland Coal Company, and the
name under which the corporation was originally incorporated is Stonega
Coke and Coal Company. The date of filing of its original Certificate of
Incorporation with the Secretary of State was May 4, 1910.
2. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation
of this corporation as heretofore amended or supplemented and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or
changes to read as herein set forth in full:
FIRST: The name of this corporation is WESTMORELAND
COAL COMPANY.
SECOND: The location of its principal office in the State of
Delaware is Coporation Trust Center, 1209 Orange Street, in the city of
Wilmington, County of New Castle. The name of the Agent therein and in
charge thereof is The Corporation Trust Company.
THIRD: The purposes of the corporation are to mine, produce,
process, manufacture, buy, sell, own, lease, deal in and dispose of coal, oil,
gas, and all types of minerals and their products; and in addition to produce,
process, manufacture, buy, sell, own, lease, deal in and dispose of all kinds
of property and to engage in all kinds of enterprises.
FOURTH: The aggregate number of shares of all classes of
stock which the corporation has authority to issue is 25,000,000, of which (a)
5,000,000 shall be Preferred Stock of the par value of $1 per share, issuable
in series, and (b) 20,000,000 shall be Common Stock of the par value of $2.50
per share.
The designations and the powers, preferences and rights of such
classes of stock, and the qualifications, limitations and restrictions thereof,
which are fixed by this Certificate of Incorporation, and the authority of the
Board of Directors of the corporation ("Board of Directors") to fix by
resolution or resolutions providing for the issue of any series of the
Preferred Stock and the designations, preferences and rights of any such
series, and the qualifications, limitations and restrictions thereof,
which are not fixed by the Certificate of Incorporation, are as follows:
PREFERRED STOCK
1. Issue in Series. The Preferred Stock may be issued from
time to time in one or more series. Each series shall have the terms stated
herein and in the resolution of the Board of Directors providing for their
issue. All shares of any one series of Preferred Stock shall be identical.
2. Creation of Series. The Board of Directors shall have
authority by resolution to divide the Preferred Stock into one or more series
and to determine and fix with respect to each series, at any time prior to the
issuance of any shares of such series, the designations, preferences and
rights, and the qualifications, limitations and restrictions thereof, which may
vary as to shares of different series, subject to limitations provided by law
and herein. All series of Preferred Stock may have voting rights on such
terms as the Board of Directors shall determine, as shall be permitted by
applicable law. The authority of the Board of Directors shall include, but not
be limited to, the determination or fixing of the following:
(a) The designation of and the number of shares which shall
constitute the series, which number may be increased or decreased (but not
below the number of shares then outstanding) from time to time by action of
the Board of Directors;
(b) The dividend rate and time of payment of dividends on
the shares of the series, whether dividends shall be cumulative, and, if so,
from what date or dates, and whether and to what extent the shares of the
series shall have participation rights;
(c) The price or prices at which, and the terms and conditions
on which, the shares of the series may be redeemed at the option of the
corporation;
(d) Whether or not the shares of the series shall be entitled to
the benefit of a retirement or sinking fund to be applied to the purchase or
redemption of such shares, and, if so entitled, the annual amount of such
fund and the terms and provisions relative to the operation thereof;
(e) Whether or not the shares of the series shall be
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same or any other class or classes of stock of the
corporation, and if so convertible or exchangeable, the conversion price or
prices, or the rates of exchange, and any adjustments thereof, if any, at
which such conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange;
(f) The rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
corporation;
(g) Whether or not the shares of the series shall be entitled to
the benefit of limitations restricting the payment of dividends on, or the
making of other distributions in respect of stock of any class ranking junior
to the shares of the series as to dividends or assets, or restricting the
purchase or redemption of the shares of any such junior class, and the terms
of any such restrictions;
(h) The terms, as applicable, of the voting rights, in addition
to the voting rights provided by law, of any series issued on or after the
effective date of this amendment; and
(i) Any other relative rights, preferences and limitations of
that series.
COMMON STOCK
3. Dividends. Holders of Common Stock shall be entitled to
receive such dividends as may be declared by the Board of Directors except
that the corporation will not declare, pay or set apart for payment any
dividend on shares of Common Stock (other than dividends payable in
Common Stock), or directly or indirectly make any distribution on, redeem,
purchase or otherwise acquire any such shares, if at the time of such action
the corporation is in default with respect to any dividend payable on or any
sinking fund or purchase fund requirement relative to shares of Preferred
Stock.
4. Distribution of Assets. In the event of the voluntary or
involuntary liquidation of the corporation, holders of Common Stock shall be
entitled to receive pro rata all of the remaining assets of the corporation
available for distribution to its stockholders after all amounts to which the
holders of Preferred Stock are entitled have been paid or set aside in cash for
payment.
GENERAL
5. Voting Rights. Except as otherwise required by law, the
holders of Common Stock and the holders of each series of Preferred Stock
shall exclusively possess voting power in the election of directors and for all
other purposes.
DESIGNATION OF SERIES A CONVERTIBLE
EXCHANGEABLE PREFERRED STOCK
Section 1. Designation of Amount. The shares of such series
shall be designated as "Series A Convertible Exchangeable Preferred Stock"
(the "Series A Preferred Stock") and the authorized number of shares consti-
tuting such series shall be 575,000. The par value of the Series A Preferred
Stock shall be $1.00 per share.
Section 2. Dividends.
(a) The holders of shares of the Series A Preferred Stock will
be entitled to receive, when, as and if declared by the Board of Directors out
of funds of the Corporation legally available therefor, cumulative cash
dividends on the shares of the Series A Preferred Stock at the rate of $8.50
per annum per share of Series A Preferred Stock, and no more, payable in
equal quarterly installments on April 1, July 1, October 1, and January 1 in
each year, commencing October 1, 1992. Such dividends shall be cumulative
from the date of original issue of each share of the Series A Preferred Stock.
Each such dividend shall be paid to the holders of record of the shares of the
Series A Preferred Stock as they appear on the stock records of the
Corporation on such record date, not more than 30 days nor less than 10 days
preceding the dividend payment date thereof, as shall be fixed by the Board
of Directors or a duly authorized committee thereof. If a holder converts a
share or shares of the Series A Preferred Stock after the close of business on
the record date for a dividend and before the opening of business on the
payment date for such dividend, then, pursuant to Section 6 hereof, the
holder will be required to pay to the Corporation at the time of such
conversion the amount of such dividend.
(b) If dividends are not paid in full, or declared in full and
sums set apart for the payment thereof, upon the shares of the Series A
Preferred Stock and shares of any other preferred stock ranking on a parity
as to dividends with the Series A Preferred Stock, all dividends declared
upon shares of the Series A Preferred Stock and of any other preferred stock
ranking on a parity as to dividends shall be paid or declared pro rata so that
in all cases the amount of dividends paid or declared per share on the Series
A Preferred Stock and such other shares of preferred stock shall bear to each
other the same ratio that accumulated dividends per share, including
dividends accrued or in arrears, if any, on the shares of the Series A
Preferred Stock and such other shares of preferred stock bear to each other.
Except as provided in the preceding sentence, unless full cumulative
dividends on the shares of the Series A Preferred Stock have been paid or
declared in full and sums set aside for the payment thereof, no dividends
(other than dividends in shares of, or options, warrants or rights to subscribe
for or purchase shares of the Common Stock (as hereinafter defined) or in
shares of any other capital stock of the Corporation ranking junior to the
Series A Preferred Stock as to dividends and distribution of assets upon
liquidation) shall be paid or declared and set aside for payment or other
distribution made upon the Corporation's Common Stock, par value $2.50 per
share (the "Common Stock"), or any other capital stock of the Corporation
ranking junior to or on a parity with the Series A Preferred Stock as to
dividends, nor shall any shares of the Common Stock or shares of any other
capital stock of the Corporation ranking junior to or on a parity with the
Series A Preferred Stock as to dividends be redeemed, purchased or
otherwise acquired for any consideration (or any payment made to or
available for a sinking fund for the redemption of any such shares) by the
Corporation or any subsidiary of the Corporation (except by conversion into
or exchange for shares of capital stock of the Corporation ranking junior to
the Series A Preferred Stock as to dividends and distribution of assets upon
liquidation). Holders of shares of the Series A Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or shares of
capital stock, in excess of full accrued and cumulative dividends as herein
provided. No interest or sum of money in lieu of interest shall be payable in
respect of any dividend payment or payments on the shares of the Series A
Preferred Stock that may be in arrears.
The terms "accrued dividends, " "dividends accrued" and
"dividends in arrears," whenever used herein with reference to shares of
preferred stock shall be deemed to mean an amount which shall be equal to
dividends thereon at the annual dividend rates per share for the respective
series from the date or dates on which such dividends commence to accrue to
the end of the then current quarterly dividend period for such preferred stock
(or, in the case of redemption, to the date of redemption), less the amount of
all dividends paid, or declared in full and sums set aside for the payment
thereof, upon such shares of preferred stock.
(c) Dividends payable on the shares of the Series A Preferred
Stock for any period less than a full quarterly dividend period shall be
computed on the basis of a 360-day year of twelve 30-day months and the
actual number of days elapsed in the period for which payable.
Section 3. Optional Redemption.
(a) The shares of the Series A Preferred Stock will be
redeemable at the option of the Corporation by resolution of its Board of
Directors, in whole or from time to time in part, at any time on or after July
1, 1995, subject to the limitations set forth below, at the following redemp-
tion prices per share plus, in each case, all dividends accrued and unpaid on
the shares of the Series A Preferred Stock up to the date fixed for redemption,
upon giving notice as provided hereinbelow:
If redeemed during
the twelve-month
period beginning
July 1,................... Price
1996 . . . . . . . . . . . . . . . $105.10
1997 . . . . . . . . . . . . . . . 104.25
1998 . . . . . . . . . . . . . . . 103.40
1999 . . . . . . . . . . . . . . . 102.55
2000 . . . . . . . . . . . . . . . 101.70
2001 . . . . . . . . . . . . . . . 100.85
2002 and thereafter. . . . . . . $100.00
(b) If less than all of the outstanding shares of the Series A
Preferred Stock are to be redeemed, the number of shares to be redeemed
shall be determined by the Board of Directors and the shares to be redeemed
shall be determined pro rata or by lot or in such other manner and subject to
such regulations as the Board of Directors in its sole discretion shall
prescribe.
(c) At least 30 days but not more than 60 days prior to the
date fixed for the redemption of shares of the Series A Preferred Stock, a
written notice shall be mailed to each holder of record of shares of the
Series A Preferred Stock to be redeemed in a postage prepaid envelope addressed
to such holder at his post office address as shown on the records of the
Corporation, notifying such holder of the election of the Corporation to
redeem such shares, stating the date fixed for redemption thereof (the
"Redemption Date"), and calling upon such holder to surrender to the
Corporation on the Redemption Date at the place designated in such notice
his certificate or certificates representing the number of shares specified in
such notice of redemption. On or after the Redemption Date each holder of
shares of the Series A Preferred Stock to be redeemed shall present and
surrender his certificate or certificates for such shares to the Corporation at
the place designated in such notice and thereupon the redemption price of
such shares shall be paid to or on the order of the person whose name
appears on such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled. In case less than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares. From and after the Redemption
Date (unless default shall be made by the Corporation in payment of the
redemption price), all dividends on the shares of the Series A Preferred Stock
designated for redemption in such notice shall cease to accrue, and all rights
of the holders thereof as stockholders of the Corporation, except the right to
receive the redemption price of such shares (including all accrued and unpaid
dividends up to the Redemption Date) upon the surrender of certificates
representing the same, shall cease and terminate and such shares shall not
thereafter be transferred (except with the consent of the Corporation) on the
books of the Corporation, and such shares shall not be deemed to be
outstanding for any purpose whatsoever. At its election, the Corporation
prior to the Redemption Date may deposit the redemption price (including all
accrued and unpaid dividends up to the Redemption Date) of shares of the
Series A Preferred Stock so called for redemption in trust for the holders
thereof with a bank or trust company (having a capital surplus and
undivided profits aggregating not less than $50,000,000) in the Borough of
Manhattan, City and State of New York, or in any other city in which the
Corporation at the time shall maintain a transfer agency with respect to such
shares, in which case the aforesaid notice to holders of shares of the Series A
Preferred Stock to be redeemed shall state the date of such deposit, shall
specify the office of such bank or trust company as the place of payment of
the redemption price, and shall call upon such holders to surrender the
certificates representing such shares at such place on or after the date fixed
in such redemption notice (which shall not be later than the Redemption
Date) against payment of the redemption price (including all accrued and
unpaid dividends up to the Redemption Date). Any interest accrued on such
funds shall be paid to the Corporation from time to time. Any moneys so
deposited which shall remain unclaimed by the holders of such shares of the
Series A Preferred Stock at the end of two years after the Redemption Date
shall be returned by such bank or trust company to the Corporation.
If a notice of redemption has been given pursuant to this Section
3 and any holder of shares of this Series A Preferred Stock shall, prior to the
close of business on the last business day preceding the Redemption Date,
give written notice to the Corporation pursuant to Section 6 below of the
conversion of any or all of the shares to be redeemed held by such holder
(accompanied by a certificate or certificates for such shares, duly endorsed or
assigned to the Corporation, and any necessary transfer tax payment, as
required by Section 6 below), then such redemption shall not become effective
as to such shares to be converted, such conversion shall become effective as
provided in Section 6 below and any moneys set aside by the Corporation for
the redemption of such shares of converted Series A Preferred Stock shall
revert to the general funds of the Corporation.
(d) Shares of the Series A Preferred Stock redeemed,
repurchased or retired pursuant to the provisions of this Section 3 or
surrendered to the Corporation upon conversion or exchange shall thereupon
be retired and may not be reissued as shares of the Series A Preferred Stock
but shall thereafter have the status of authorized but unissued shares of the
Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series of the Preferred Stock.
Section 4. Voting Rights.
(a) In addition to the voting rights provided in Section 4(b),
7(b) or 9, and as required by law, the holders of shares of the Series A
Preferred Stock shall be entitled to vote on any matter on which the holders
of the Common Stock of the Corporation shall be entitled to vote, and when
voting on matters on which the holders of Common Stock of the Corporation
are entitled to vote, each share of the Series A Preferred Stock shall entitle
the holder thereof to four votes. In the event the Corporation shall at any
time (i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each
such case the number of votes per share to which holders of shares of Series
A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is
the number of shares of Common Stock outstanding (which in the case of (i)
above shall include such shares of Common Stock payable pursuant to such
dividend) 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. An adjustment made pursuant to the immediately preceding
sentence shall become effective immediately after such event. When the
holders of the Series A Preferred Stock vote on any matter as members of a
class which does not include the holders of Common Stock, the holders of
Series A Preferred Stock shall be entitled to an aggregate number of votes
which is in the same proportion to the total number of class votes as the
aggregate liquidation preference of the outstanding shares of Series A
Preferred Stock bears to the aggregate liquidation preference of all shares of
capital stock in the class; and each holder of Series A Preferred Stock shall
be entitled to his or her proportionate share of the aggregate number of votes
to which the holders of Series A Preferred Stock are entitled.
(b) In the event that the Corporation shall have failed to
declare and pay or set apart for payment in full the dividends accumulated
on the outstanding shares of the Series A Preferred Stock for any six
quarterly dividend payment periods, whether or not consecutive (a
"Preferential Dividend Non-Payment"), the number of directors of the
Corporation shall be increased by two and the holders of outstanding shares
of the Series A Preferred Stock , voting together as a class with all other
classes or series of preferred stock of the Corporation ranking on a parity
with the Series A Preferred Stock with respect to dividends and distribution
of assets upon liquidation and then entitled to vote on the election of such
additional directors, shall be entitled to elect such additional directors
until the full dividends accumulated on all outstanding shares of the Series A
Preferred Stock have been declared and paid or set apart for payment. Upon
the occurrence of a Preferential Dividend Non-Payment, the Board of
Directors shall within a reasonable period call a special meeting of the
holders of shares of the Series A Preferred Stock and all holders of other
classes or series of preferred stock of the Corporation ranking on a parity
with the Series A Preferred Stock with respect to the payment of dividends
and distribution of assets upon liquidation who are then entitled to vote on
the election of such additional directors for the purpose of electing the
additional directors provided by the foregoing provisions. If and when all
accumulated dividends on the shares of the Series A Preferred Stock have
been declared and paid or set aside for payment in full, the holders of shares
of the Series A Preferred Stock shall be divested of the special voting rights
provided by this Section 4(b), subject to revesting in the event of each and
every subsequent Preferential Dividend Non-Payment. Upon termination of
such special voting rights attributable to all holders of shares of the Series
A Preferred Stock and shares of any other class or series of preferred stock of
the Corporation ranking on a parity with the Series A Preferred Stock with
respect to payment of dividends and distribution of assets upon liquidation,
the term of office of each director elected by the holders of shares of the
Series A Preferred Stock and such parity Preferred Stock (a "Preferred Stock
Director") pursuant to such special voting rights shall forthwith terminate
and the number of voting rights shall forthwith terminate and the number of
directors constituting the entire Board of Directors shall be reduced by the
number of Preferred Stock Directors. Any Preferred Stock Director may be
removed by, and shall not be removed otherwise than by, the vote of the
holders of record of a majority of the outstanding shares of the Series A
Preferred Stock and all other series of Preferred Stock ranking on a parity
with the Series A Preferred Stock with respect to the payment of dividends
who were entitled to vote in such Preferred Stock Director's election, voting
as a separate class, at a meeting called for such purpose.
(c) So long as any shares of this Series are outstanding, the
By-Laws of the Corporation shall contain provisions ensuring that the
number of Directors constituting the entire Board of Directors of the
Corporation shall at all times be such that the exercise, by the holders of
shares of the Series A Preferred Stock and the holders of parity Preferred
Stock, of the right to elect Directors under the circumstances provided for in
subclause (a) of this Section 4 will not contravene any provision of this
Certificate of Incorporation restricting the number of Directors which may
constitute the entire Board of Directors of the Corporation.
(d) Directors elected pursuant to subclause (a) of this Section
4 shall serve until the earlier of (x) the next annual meeting of the
stockholders of the Corporation and the election (by the holders of shares of
the Series A Preferred Stock and the holders of parity Preferred Stock) and
qualification of their respective successors or (y) the next annual meeting of
the stockholders of the Corporation following the date upon which all
dividends in default on the shares of the Series A Preferred Stock shall have
been paid in full.
(e) So long as a Preferential Dividend Non-Payment shall
continue, any vacancy in the office of a Preferred Stock Director may be filled
by written consent of the Preferred Stock Director remaining in office or, if
none remains in office, by vote of the holders of record of a majority of the
outstanding shares of the Series A Preferred Stock and all other series of
Preferred Stock ranking on a parity with the Series A Preferred Stock with
respect to the payment of dividends and distribution of assets upon
liquidation who are then entitled to vote in the election of such Preferred
Stock Directors as provided above. As long as the Preferential Dividend Non-
Payment shall continue, holders of shares of the Series A Preferred Stock
shall not, as such stockholders, be entitled to vote on the election or removal
of directors other than Preferred Stock Directors, but shall not be divested of
any other voting rights provided to such stockholders by law with respect to
any other matter to be acted upon by the stockholders of the Corporation.
Section 5. Liquidation Rights.
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or otherwise, after
payment or provision for payment of the debts and other liabilities of the
Corporation, the holders of shares of the Series A Preferred Stock shall be
entitled to receive, in cash, out of the remaining net assets of the
Corporation, the amount of One-Hundred Dollars ($100.00) for each share of
the Series A Preferred Stock, plus an amount equal to all dividends accrued
and unpaid on each such share up to the date fixed for distribution, before
any distribution shall be made to the holders of shares of the Common Stock
or any other capital stock of the Corporation ranking (as to any such
distribution) junior to the Series A Preferred Stock. If upon any liquidation,
dissolution or winding up of the Corporation, the assets distributable among
the holders of shares of the Series A Preferred Stock and all other classes and
series of preferred stock ranking (as to any such distribution) on a parity
with the Series A Preferred Stock are insufficient to permit the payment in
full to the holders of all such shares of all preferential amounts payable to
all such holders, then the entire assets of the Corporation thus distributable
shall be distributed ratably among the holders of the shares of the Series A
Preferred Stock and such other classes and series of preferred stock ranking
(as to any such distribution) on a parity with the Series A Preferred Stock in
proportion to the respective amounts that would be payable per share if such
assets were sufficient to permit payment in full.
(b) For purposes of this Section 5, a distribution of assets in
any dissolution, winding up or liquidation shall not include (i) any consoli-
dation or merger of the Corporation with or into any other corporation, (ii)
any dissolution, liquidation, winding up or reorganization of the Corporation
immediately followed by reincorporation of another corporation or (iii) a sale
of other disposition of all or substantially all of the Corporation's assets to
another corporation; provided, however, that, in each case, effective provision
is made in the certificate of incorporation of the resulting and surviving
corporation or otherwise for the protection of the rights of the holders of
shares of the Series A Preferred Stock.
(c) After the payment of the full preferential amounts
provided for herein to the holders of shares of the Series A Preferred Stock or
funds necessary for such payment have been set aside in trust for the holders
thereof, such holders shall be entitled to no other or further participation in
the distribution of the assets of the Corporation.
Section 6. Conversion.
(a) Holders of shares of the Series A Preferred Stock shall
have the right, exercisable at any time and from time to time, except in the
case of shares of the Series A Preferred Stock called for redemption or to be
exchanged for Debentures (as described in Section 7 hereof), to convert all or
any such shares of the Series A Preferred Stock into shares of the Common
Stock (calculated as to each conversion to the nearest 1/100th of a share) at
the conversion price of $14.64 per share of the Common Stock (equivalent to
a conversion rate of 6.8306 shares of the Common Stock for each share of the
Series A Preferred Stock so converted), subject to adjustment as described
below. In the case of shares of the Series A Preferred Stock called for
redemption or to be exchanged for Debentures (as described in Section 7
hereof), conversion rights will expire at the close of business on the last
business day preceding the Redemption Date or the last business day
preceding the Exchange Date (as hereinafter defined), as the case may be.
Notice of an optional redemption or exchange must be mailed not less than
30 days and not more than 60 days prior to the Redemption Date or
Exchange Date, as the case may be. Upon conversion or exchange, no
adjustment or payment will be made for dividends or interest, but if any
holder surrenders a share of the Series A Preferred Stock for conversion after
the close of business on the record date for the payment of a dividend and
prior to the opening of business on the next dividend payment date, then,
notwithstanding such conversion, the dividend payable on such dividend
payment date will be paid to the registered holder of such share on such
record date. In such event, such share, when surrendered for conversion
during the period between the close of business on any dividend payment
record date and the opening of business on the corresponding dividend
payment date, must be accompanied by payment of an amount equal to the
dividend payable on such dividend payment date on the share so converted.
(b) Any holder of a share or shares of the Series A Preferred
Stock electing to convert such share or shares thereof shall deliver the
certificate or certificates therefor to the principal office of any transfer
agent for the Common Stock, with the form of notice of election to convert as
the Corporation shall prescribe fully completed and duly executed and (if so
required by the Corporation or any conversion agent) accompanied by
instruments of transfer in form satisfactory to the Corporation and to any
conversion agent, duly executed by the registered holder or his duly
authorized attorney, and transfer taxes, stamps or funds therefor or evidence
of payment thereof if required pursuant to Section 6(a) or 6(d) hereof. The
conversion right with respect to any such shares shall be deemed to have
been exercised at the date upon which the certificates therefor accompanied
by such duly executed notice of election and instruments of transfer and such
taxes, stamps, funds, or evidence of payment shall have been so delivered,
and the person or persons entitled to receive the shares of the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such shares of the Common Stock upon said date.
(c) No fractional shares of the Common Stock or scrip
representing fractional shares shall be issued upon conversion of shares of
the Series A Preferred Stock. If more than one share of the Series A
Preferred Stock shall be surrendered for conversion at one time by the same
holder, the number of full shares of the Common Stock which shall be
issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of the Series A Preferred Stock so surrendered.
Instead of any fractional shares of the Common Stock which would otherwise
be issuable upon conversion of any shares of the Series A Preferred Stock,
the Corporation shall pay a cash adjustment in respect of such fraction in an
amount equal to the same fraction of the closing price for the Common Stock
on the last business day preceding the date of conversion. The closing price
for such day shall be the last reported sales price regular way or, in case no
such reported sale takes place on such date, the average of the reported
closing bid and asked prices regular way, in either case on the New York
Stock Exchange, or if the Common Stock is not listed or admitted to trading
on such Exchange, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, the closing sale price of the
Common Stock or in case no reported sale takes place, the average of the
closing bid and asked prices, on NASDAQ or any comparable system. If the
Common Stock is not quoted on NASDAQ or any comparable system, the
Board of Directors shall in good faith determine the current market price on
the basis of such quotation as it considers appropriate.
(d) If a holder converts a share or shares of the Series A
Preferred Stock, the Corporation shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of Common Stock upon the
conversion. The holder, however, shall pay to the Corporation the amount of
any tax which is due (or shall establish to the satisfaction of the Corporation
payment thereof) if the shares are to be issued in name other than the name
of such holder and shall pay to the Corporation any amount required by the
last sentence of Section 6(a) hereof.
(e) The Corporation shall reserve and shall at all times have
reserved out of its authorized but unissued shares of the Common Stock
enough shares of the Common Stock to permit the conversion of the then
outstanding shares of the Series A Preferred Stock. All shares of Common
Stock which may be issued upon conversion of shares of the Series A
Preferred Stock shall be validly issued, fully paid and nonassessable. In
order that the Corporation may issue shares of the Common Stock upon
conversion of shares of the Series A Preferred Stock, the Corporation will
endeavor to comply with all applicable Federal and State securities laws and
will endeavor to list such shares of the Common Stock to be issued upon
conversion on each securities exchange on which the Common Stock is listed.
(f) The conversion rate in effect at any time shall be subject
to adjustment from time to time as follows:
(i) In case the Corporation shall (1) pay a dividend in
shares of the Common Stock to holders of the Common Stock, (2)
make a distribution in shares of the Common Stock to holders of
the Common Stock, (3) subdivide the outstanding shares of the
Common Stock into a greater number of shares of the Common
Stock or (4) combine the outstanding shares of the Common
Stock into a smaller number of shares of the Common Stock, the
conversion rate immediately prior to such action shall be
adjusted so that the holder of any shares of the Series A
Preferred Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of the Common Stock
which he would have owned immediately following such action
had such shares of the Series A Preferred Stock been converted
immediately prior thereto. An adjustment made pursuant to
this Section 6(f)(i) shall become effective immediately after the
record date in the case of a dividend or distribution and shall
become effective immediately after the effective date in the case
of a subdivision or combination.
(ii) In case the Corporation shall issue rights or
warrants to substantially all holders of the Common Stock
entitling them (for a period commencing no earlier than the
record date for the determination of holders of the Common
Stock entitled to receive such rights or warrants and expiring
not more than 45 days after such record date) to subscribe for or
purchase shares of the Common Stock (or securities convertible
into shares of the Common Stock) at a price per share less than
the current market price (as determined pursuant to Section
6(f)(iv) ) of the Common Stock on such record date, the number
of shares of the Common Stock into which each share of the
Series A Preferred Stock shall be convertible shall be adjusted
so that the same shall be equal to the number determined by
multiplying the number of shares of the Common Stock into
which such share of the Series A Preferred Stock was
convertible immediately prior to such record date by a fraction
of which the numerator shall be the number of shares of the
Common Stock outstanding on such record date plus the
number of additional shares of the Common Stock offered (or
into which the convertible securities so offered are convertible),
and of which the denominator shall be the number of shares of
the Common Stock outstanding on such record date, plus the
number of shares of the Common Stock which the aggregate
offering price of the offered shares of the Common Stock (or the
aggregate conversion price of the convertible securities so
offered) would purchase at such current market price. Such
adjustments shall become effective immediately after such
record date.
(iii) In case the Corporation shall distribute to all
holders of the Common Stock shares of any class of capital stock
other than the Common Stock, evidences of indebtedness or
other assets (other than cash dividends out of current or
retained earnings), or shall distribute to substantially all
holders of the Common Stock rights or warrants to subscribe for
securities (other than those referred to in Section 6(f)(ii)), then
in each such case the number of shares of the Common Stock
into which each share of the Series A Preferred Stock shall be
convertible shall be adjusted so that the same shall equal the
number determined by multiplying the number of shares of the
Common Stock into which such share of the Series A Preferred
Stock was convertible immediately prior to the date of such
distribution by a fraction of which the numerator shall be the
current market price (determined as provided in Section 6(f)(iv))
of the Common Stock on the record date mentioned below, and
of which the denominator shall be such current market price of
the Common Stock, less the then fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive evidence of such fair market value) of the
portion of the assets so distributed or of such subscription rights
or warrants applicable to one share of the Common Stock. Such
adjustment shall become effective immediately after the record
date for the determination of the holders of the Common Stock
entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the Corporation shall distribute
rights or warrants (other than those referred to in Section
6(f)(ii)) ("Rights") pro rata to holders of the Common Stock, the
Corporation may, in lieu of making any adjustment pursuant to
this Section 6(f)(iii), make proper provision so that each holder
of a share of Series A Preferred Stock who converts such share
after the record date for such distribution and prior to the
expiration or redemption of the Rights shall be entitled to
receive upon such conversion, in addition to the shares of the
Common Stock issuable upon such conversion (the "Conversion
Shares"), a number of Rights to be determined as follows: (i) if
such conversion occurs on or prior to the date for the
distribution to the holders of Rights of separate certificates
evidencing such Rights (the "Distribution Date"), the same
number of Rights to which a holder of a number of shares of the
Common Stock equal to the number of Conversion Shares is
entitled at the time of such conversion in accordance with the
terms and provisions of and applicable to the Rights; and (ii) if
such conversion occurs after the Distribution Date, the same
number of Rights to which a holder of a number of shares of the
Common Stock into which a share of the Series A Preferred
Stock so converted was convertible immediately prior to the
Distribution Date would have been entitled on the Distribution
Date in accordance with the terms and provisions of and
applicable to the Rights.
(iv) The current market price per share of the Common
Stock on any date shall be deemed to be the average of the daily
closing prices for thirty consecutive trading days commencing
forty-five trading 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 date,
the average of the reported closing bid and asked prices regular
way, in either case on the New York Stock Exchange, or if the
Common Stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if
not listed or admitted to trading on any national securities
exchange, the closing sale price of the Common Stock, or in case
no reported sale takes place, the average of the closing bid and
asked prices, on NASDAQ or any comparable system, or if the
Common Stock is not quoted on NASDAQ or any comparable
system, the closing sale price or, in case no reported sale takes
place, the average of the closing bid and asked prices, as
furnished by any two members of the National Association of
Securities Dealers, Inc. selected from time to time by the
Corporation for that purpose.
(v) In any case in which this Section 6 shall require
that an adjustment be made immediately following a record
date, the Corporation may elect to defer (but only until five
business days following the mailing of the notice described in
Section 6(j)) issuing to the holder of any share of the Series A
Preferred Stock converted after such record date the shares of
the Common Stock and other capital stock of the Corporation
issuable upon such conversion over and above the shares of the
Common Stock and other capital stock of the Corporation
issuable upon such conversion only on the basis of the
conversion rate prior to adjustment; and, in lieu of the shares
the issuance of which is so deferred, the Corporation shall issue
or cause its transfer agents to issue due bills or other
appropriate evidence of the right to receive such shares.
(g) No adjustment in the conversion rate shall be required
until cumulative adjustments result in a concomitant change of 1% or more
of the conversion price as existed prior to the last adjustment of the con-
version rate; provided, however, that any adjustments which by reason of
this Section 6(g) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 6 shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be. No adjustment to the conversion
rate shall be made for cash dividends.
(h) In the event that, as a result of an adjustment made
pursuant to Section 6(f), the holder of any share of the Series A Preferred
Stock thereafter surrendered for conversion shall become entitled to receive
any shares of capital stock of the Corporation other than shares of the
Common Stock, thereafter the number of such other shares so receivable
upon conversion of any shares of the Series A Preferred Stock shall be subject
to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common Stock
contained in this Section 6.
(i) The Corporation may make such increases in the
conversion rate, in addition to those required by Sections 6(f)(i), (ii) and
(iii), as it considers to be advisable in order that any event treated for
Federal income tax purposes as a dividend of stock or stock rights shall not
be taxable to the recipients thereof.
(j) Whenever the conversion rate is adjusted, the
Corporation shall promptly mail to all holders of record of shares of the
Series A Preferred Stock a notice of the adjustment and shall cause to be
prepared a certificate signed by a principal financial officer of the corpora-
tion setting forth the adjusted conversion rate and a brief statement of the
facts requiring such adjustment and the computation thereof; such certificate
shall forthwith be filed with each transfer agent for the shares of the Series
A Preferred Stock.
(k) In the event that:
(1) the Corporation takes any action which would
require an adjustment in the conversion rate,
(2) the Corporation consolidates or merges with, or
transfers all or substantially all of its assets to,
another corporation and stockholders of the Cor-
poration must approve the transaction, or
(3) there is a dissolution or liquidation of the Cor-
poration,
a holder of shares of the Series A Preferred Stock may wish to convert some
or all of such shares into shares of the Common Stock prior to the record date
for, or the effective date of, the transaction so that he may receive the
rights, warrants, securities or assets which a holder of shares of the Common
Stock on that date may receive. Therefore, the Corporation shall mail to
holders of shares of the Series A Preferred Stock a notice stating the proposed
record or effective date of the transaction, as the case may be. The Corpora-
tion shall mail the notice at least 10 days before such date; however, failure
to mail such notice or any defect therein shall not affect the validity of any
transaction referred to in clause (1), (2) or (3) of this Section 6(k).
(l) If any of the following shall occur, namely: (i) any
reclassification or change of outstanding shares of the Common Stock
issuable upon conversion of shares of the Series A Preferred Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), (ii) any
consolidation or merger to which the Corporation is a party other than a
merger in which the Corporation is the continuing corporation and which
does not result in any reclassification of, or change (other than a change in
name, or par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination) in, outstanding
shares of the Common Stock or (iii) any sale or conveyance of all or
substantially all of the property or business of the Corporation as an
entirety, then the Corporation, or such successor or purchasing corporation,
as the case may be, shall, as a condition precedent to such reclassification,
change, consolidation, merger, sale or conveyance provide in its certificate of
incorporation or other charter document that each share of the Series A
Preferred Stock shall be convertible into the kind and amount of shares of
capital stock and other securities and property (including cash) receivable
upon such reclassification, change, consolidation, merger, sale or conveyance
by a holder of the number of shares of the Common Stock deliverable upon
conversion of such share of the Series A Preferred Stock immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance.
Such certificate of incorporation or other charter document shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 6. The foregoing, however, shall not
in any way affect the right a holder of a share of the Series A Preferred Stock
may otherwise have, pursuant to clause (ii) of the last sentence of Section
6(f)(iii), to receive Rights upon conversion of a share of the Series A Pre-
ferred Stock. If, in the case of any such consolidation, merger, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of the Common Stock includes shares of
capital stock or other securities and property of a corporation other than
the successor or purchasing corporation, as the case may be, in such consoli-
dation, merger, sale or conveyance, then the certificate of incorporation or
other charter document of such other corporation shall contain such addi-
tional provisions to protect the interests of the holders of shares of the
Series A Preferred Stock as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The provision of this Section 6(l)
shall similarly apply to successive consolidations, mergers, sales or
conveyances.
Section 7. Exchange.
(a) Requirements of Exchange. At the Corporation's option,
all, but not less than all, of the then outstanding shares of the Series A
Preferred Stock may be exchanged on any dividend payment date
commencing July 1, 1996, subject to certain conditions stated in the
immediately following sentence, for the Corporation's 8 1/2% Convertible
Subordinated Exchange Debentures due July 1, 2012 (the "Debentures") to
be issued pursuant to an indenture (the "Indenture") dated as of July 9, 1992
between the Company and Fidelity Bank, National Association in the form of
Exhibit 4.1 to the Corporation's Registration Statement on Form S-2
(Registration No. 33-47872), as amended, declared effective by the Securities
and Exchange Commission on July 1, 1992, at an exchange rate of $100.00
principal amount of the Debentures for each share of the Series A Preferred
Stock. Such exchange may be made only if, at the time of exchange (i) the
Indenture shall have been qualified under the Trust Indenture Act of 1939,
as amended, (ii) there shall be no dividend arrearage (including the dividend
payable on the date of exchange) on the shares of the Series A Preferred
Stock, and (iii) no Event of Default (as defined in the Indenture) under
Indenture shall have occurred and be continuing. In the event that such
exchange would result in the issuance of a Debenture in a principal amount
which is not an integral multiple of $25, the difference between such
principal amount and the highest integral multiple of $25 (which may be
zero) which is less than such principal amount shall be paid to the holder in
cash.
(b) Notice of Exchange. The Corporation will mail to each
holder of record of shares of the Series A Preferred Stock written notice of
its intention to exchange not less than 30 nor more than 60 days prior to the
date fixed for the exchange (the "Exchange Date"). Each such notice shall
state: (i) the Exchange Date, (ii) the place or places where certificates for
such shares of the Series A Preferred Stock are to be surrendered for
exchange into Debentures, (iii) that dividends on the shares of the Series A
Preferred Stock to be exchanged will cease to accrue on such Exchange Date
and (iv) that conversion rights in respect thereof will terminate at the close
of business on the last business day proceeding such Exchange Date. Except as
may be otherwise required by applicable law, the form of the Indenture may
not be amended or supplemented before the Exchange Date without the
affirmative vote or consent of the holders of two-thirds (2/3) of the
outstanding shares of the Series A Preferred Stock, except that those changes
which pursuant to Section 11.02 of the Indenture require the consent of each
holder affected thereby shall require the consent of all the holders of the
outstanding shares of Series A Preferred Stock. The Corporation will cause
the Debentures to be authenticated on the dividend payment date on which
the exchange is effective, and the Corporation will pay interest on the
Debentures at the rate and on the dates specified in such Indenture from and
after the Exchange Date.
(c) Rights After Exchange Date. If notice has been mailed as
aforesaid, from and after the close of business on the Exchange Date (unless
default shall be made by the Corporation in issuing Debentures in exchange
for, or in making the final dividend payment on, the outstanding shares of
the Series A Preferred Stock on the Exchange Date), dividends on the shares
of the Series A Preferred Stock shall cease to accrue, and such shares shall
no longer be deemed to be issued and outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the Debentures) shall cease and terminate. Upon
surrender in accordance with said notice of the certificates for any shares of
the Series A Preferred Stock so exchanged (properly endorsed or assigned for
transfer, if the Corporation shall so require and the notice shall so state),
such shares shall be exchanged by the Corporation into Debentures as
aforesaid. Dividends due on the quarterly dividend payment date on which
the exchange is effected will be mailed to holders in the regular course.
Section 8. Ranking. With regard to rights to receive
dividends and distributions upon dissolution of the Corporation, the Series A
Preferred Stock shall rank prior to the Common Stock and on a parity with
any other Preferred Stock issued by the Corporation, unless the terms of such
other Preferred Stock provide otherwise and, if applicable, the requirements
of Section 9 hereof have been complied with.
Section 9. Limitations. In addition to any other rights
provided by applicable law, so long as any shares of the Series A Preferred
Stock are outstanding, the Corporation shall not, without the affirmative
vote, or the written consent as provided by law, of the holders of at least two-
thirds (2/3) of the outstanding shares of the Series A Preferred Stock, voting
separately,
(a) create, authorize or issue any class or series of capital
stock or rights to subscribe to or acquire any class or series of capital stock
ranking as to payment of dividends or distribution of assets upon liquidation
prior to or on a parity with the Series A Preferred Stock; or
(b) amend, alter or appeal, whether by merger, consolidation
or otherwise, any of the provisions of the Certificate of Incorporation
(including this Certificate of Designation) that would change the
preferences, rights or powers with respect to the Series A Preferred Stock so
as to affect the Series A Preferred Stock adversely;
but (except as otherwise required by applicable law) nothing herein
contained shall require such a vote or consent (i) in connection with any
increase in the total number of authorized shares of the Common Stock, or
(ii) in connection with the authorization or increase of any class or series of
shares ranking, as to dividends and distribution of assets upon liquidation,
junior to the Series A Preferred Stock; provided, however, that no such vote
or written consent of the holders of the shares of the Series A Preferred Stock
shall be required if, at or prior to the time when the issuance of any such
shares ranking prior to the Series A Preferred Stock is to be made or any
such change is to take effect, as the case may be, provision is made for the
redemption of all the then outstanding shares of the Series A Preferred
Stock.
Section 10. No Preemptive Rights. No holder of shares of the
Series A Preferred Stock will possess any preemptive rights to subscribe for
or acquire any unissued shares of capital stock of the Corporation (whether
now or hereafter authorized) or securities of the Corporation convertible into
or carrying a right to subscribe to or acquire shares of capital stock of the
Corporation.
DESIGNATIONS OF
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series B Junior Participating Preferred Stock"
(the "Series B Preferred Stock") and the number of shares constituting the
Series B Preferred Stock shall be 200,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Series B Preferred 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 Series B Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of Series
A Convertible Exchangeable Preferred Stock of the Corporation or of any
other series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series B Preferred Stock with respect to dividends, the
holders of shares of Series B Preferred Stock, in preference to the holders of
shares of common stock, par value $2.50 per share of the Corporation (the
"Common Stock"), and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the 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 Series B Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $1
or (b) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the shares of 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 Series B Preferred Stock. In the event
the Corporation shall at any time declare or pay any dividend on the shares
of 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 Series B
Preferred Stock were entitled immediately prior to such event under clause
(b) 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 Series B Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the shares of
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 shares of Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the Series B Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred 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
issueis a Quarterly Dividend Payment Date or is a date after the record date
for determination of holders of shares of Series B Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Series B Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series B Preferred 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.
Section 3. Voting Rights. The holders of shares of Series B
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the shares of Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series B Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Series B Preferred 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) Except as set forth herein, or as otherwise provided by
law, holders of Series B Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are entitled
to vote with holders of shares of Common Stock as set forth herein) for taking
any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided in Section
2 are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B Preferred 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 Series B
Preferred 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 Series B Preferred Stock, except dividends paid ratably on
the Series B Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series B
Preferred 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 Series B Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series B Preferred Stock, or any shares of stock
ranking on a parity with the Series B Preferred Stock, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or
classes.
(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 4, purchase or otherwise acquire such shares at such time and
in such manner.
Section 5. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Certificate of Incorporation,
or in any other Certificate of Designations creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of shares of Series B
Preferred Stock shall have received $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, provided that the holders of shares of
Series B Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of
shares of Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series B Preferred Stock, except distributions made ratably on the
Series B Preferred 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 shares of 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 Series B Preferred
Stock were entitled immediately prior to such event under the proviso in
clause (1) 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.
Section 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 Series B Preferred 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 shares of 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 Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series B Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series B Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Corporation's Preferred Stock
including without limitation the Corporation's Series A Convertible
Exchangeable Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of
the Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series B
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Series B
Preferred Stock, voting together as a single class.
FIFTH: This corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
SEVENTH: In addition to the powers conferred by statute the
board of directors is expressly authorized to (a) make, alter, amend and
repeal the bylaws and (b) have one or more offices outside of Delaware and
keep the books and records of the corporation in any of such offices, except as
prohibited by law.
EIGHTH: No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware or (iv) for any transaction from which the
director derived an improper personal benefit. Any repeal or modification of
this article Eighth shall be prospective only, and shall not affect, to the
detriment of any director, any limitation on the personal liability of a
director of the corporation existing at the time of such repeal or modification.
4. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF said Westmoreland Coal Company has
caused this certificate to be signed by Theodore E. Worcester, its Senior Vice
President, this 21st day of February, 1995.
WESTMORELAND COAL COMPANY
By ___________________________________
Theodore E. Worcester