Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
)
ARMSTRONG WORLD INDUSTRIES, ) Chapter 11
INC., et al., ) Case No. 00-4471 (RJN)
) (Jointly Administered)
Debtors )
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EXHIBIT 1.13
AMENDED AND RESTATED ARTICLES OF INCORPORATION
FORM OF AMENDED AND RESTATED ARTICLES OF INCORPORATION (SEPT. 5, 2003)
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AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
ARMSTRONG WORLD INDUSTRIES, INC.
(THE "CORPORATION")
FIRST: Name. The name of the Corporation is Armstrong World
Industries, Inc.
SECOND: Registered Office. The location and post office address of
its registered office in this Commonwealth is 2500 Columbia Avenue, Lancaster,
Lancaster County, Pennsylvania.
THIRD: Purposes. The purpose or purposes for which the Corporation is
incorporated under the Business Corporation Law of 1998 of the Commonwealth of
Pennsylvania (the "PBCL") are to engage in, and do any lawful act concerning,
any or all lawful business for which corporations may be incorporated under the
PBCL, including, but not limited to, manufacturing, purchasing and selling a
variety of interior furnishings, interior finish materials and related services
for residential, commercial and institutional interiors, including resilient
floors and carpeting, ceiling materials and ceiling systems, furniture and
related accessory items; as well as insulation materials and industrial
specialties; engaging in research and development, furnishing services, and
acquiring, owning, using, and disposing of real property of any nature
whatsoever.
FOURTH: Duration. The term of its existence is perpetual.
FIFTH: Authorized Shares.
(A) The authorized shares of the Corporation shall be of two classes:
15,000,000 Preferred Shares without par value, which may be issued in series as
hereinafter provided, and 200,000,000 Common Shares, par value $0.01 per share.
(B) A description of each class of shares and a statement of the
designations, voting rights, preferences, limitations and special rights granted
to or imposed upon the shares of each class and of the authority vested in the
Board of Directors of the Corporation to establish series of Preferred Shares
and to set, and determine variations in, the designations, voting rights,
preferences, limitations and special rights of the series of Preferred Shares
are as follows:
(i) The holders of Common Shares shall be entitled to receive
dividends, when and as declared by the Board of Directors, out of
assets legally available therefor.
(ii) The holders of Common Shares shall have one vote per share.
(iii) The Corporation may issue shares, option rights or securities
having conversion or option rights, without first offering them
to holders of Preferred Shares or Common Shares.
(iv) The Board of Directors may in its discretion, at any time or from
time to time, issue or cause to be issued all or any part of the
authorized and unissued Common Shares for consideration of such
character and value as the Board shall from time to time set or
determine.
(v) (a) Subject to paragraph (vii) of Article Sixth (H), the Board of
Directors is hereby expressly authorized, at any time or from
time to time, by resolution or resolutions adopted by the Board
to divide any or all of the Preferred Shares into one or more
series, and, before issuance of any of the shares thereof, to set
and determine the number of shares and the designation of such
series, so as to distinguish it from the shares of all other
series and classes, and to set and determine the voting rights,
preferences, limitations and special rights of the series of
Preferred Shares, or of all series of Preferred Shares, all by
amendment of these Articles without approval of the shareholders
and otherwise in the manner, and to the fullest extent now or
hereafter permitted, by the PBCL, including, but not limited to,
providing in respect of a series of Preferred Shares, and
providing for variations between different series of Preferred
Shares, in the following respects:
(1) the distinctive designation of such series and the number of
shares that shall constitute such series, which number may
be increased or decreased (but not below the number of
shares thereof then outstanding) from time to time by the
Board of Directors;
(2) the annual or other dividend rate for such series, and the
date or dates from which dividends shall commence to accrue
and whether or not dividends shall accumulate;
(3) the price or prices at which, and the terms and conditions
on which, the shares of such series may be made redeemable;
(4) the redemption or purchase, and sinking fund provisions, if
any, for the redemption or purchase, of shares of such
series;
(5) the preferential amount or amounts payable upon shares of
such series in the event of liquidation, dissolution, or
winding up of the Corporation;
(6) the voting powers and rights, if any, of shares of such
series;
(7) the terms and conditions, if any, upon which shares of such
series may be converted or exchanged and the class or
classes or series of shares of the Corporation or other
securities into which such shares may be converted or
exchanged;
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(8) the relative seniority, priority or junior rank of such
series as to dividends or assets with respect to any other
classes or series of stock then or thereafter to be issued;
and
(9) such other terms, qualifications, privileges, limitations,
options, restrictions, and special or relative rights and
preferences, if any, of shares of such series as the Board
of Directors may, at the time of such resolution or
resolutions, lawfully set or determine under the laws of the
Commonwealth of Pennsylvania.
(b) Unless otherwise provided by law, the articles of
incorporation or bylaws of the Corporation or in a resolution or
resolutions establishing any particular series of Preferred Shares
adopted pursuant to this Article Fifth, the aggregate number of
authorized Preferred Shares Stock may be increased by an amendment of
the articles of incorporation of the Corporation approved solely by
the affirmative vote of the holders of a majority of the outstanding
Common Shares.
(c) All shares within each series of Preferred Shares shall be
alike in every particular, except with respect to the dates from which
dividends shall commence to accrue or with respect to other rights,
powers or privileges which may vary among the holders of such shares
based on the number of shares held or the duration of their
shareholdings.
(d) The Board of Directors may in its discretion, at any time or
from time to time, issue or cause to be issued all or any part of the
authorized and unissued Preferred Shares for consideration of such
character and value as the Board of Directors shall from time to time
set or determine.
(vi) Notwithstanding the foregoing provisions of this Article Fifth,
the Board of Directors shall not issue or cause to be issued
nonvoting shares of the Corporation or warrants, rights or
options to acquire nonvoting shares of the Corporation (to the
extent that issuance of nonvoting equity securities is prohibited
by a debtor corporation by section 1123(a)(6) of title 11 of the
United States Code).
(C) Any or all classes and series of shares of the Corporation, or
any part thereof, may be represented by uncertificated shares to the extent
determined by the Board of Directors, except that shares represented by a
certificate that is issued and outstanding shall continue to be represented
thereby until the certificate is surrendered to the Corporation. Within a
reasonable time after the issuance or transfer of uncertificated shares, the
Corporation shall send to the registered owner thereof a written notice
containing the information required by law to be set forth or stated on share
certificates. The rights and obligations of the holders of shares represented by
certificates and the rights and obligations of the holders of uncertificated
shares of the same class and series shall be identical.
SIXTH: Management of the Corporation's Business and Affairs.
(A) Commencing with the effective date of these Amended and Restated
Articles of Incorporation (the "Effective Date"), the Board of Directors shall
be composed of nine members and, thereafter, subject to paragraph (vii) of
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Article Sixth (H) hereof, the Board of Directors shall have such number of
members as shall be determined by or pursuant to the bylaws of the Corporation,
provided (i) that, until the annual meeting of shareholders first held in
calendar year 2006 (the "2006 Annual Meeting"), the number of members shall not
be less than nine and (ii) no reduction in the number of members shall end the
term of office of any director earlier than such term of office would otherwise
end. Commencing with the Effective Date, the initial term of office of all
directors shall extend from the Effective Date until the annual meeting of
shareholders first held in 2005 (the "2005 Annual Meeting") and until the
election at such annual meeting and the qualification of the director's
successor or until his or her earlier disqualification, resignation, removal,
death or incapacity. The term of office of any director elected by the
shareholders or the Board of Directors, as permitted by law, to fill any vacancy
on the Board of Directors occurring before the 2005 Annual Meeting shall extend
until the 2005 Annual Meeting and until the election at such annual meeting and
qualification of the director's successor or until his or her earlier
disqualification, resignation, removal, death or incapacity. After the 2005
Annual Meeting, commencing in the case of each director upon his or her election
at such annual meeting and qualification, the term of office of all directors
shall extend until the next annual meeting of shareholders and the election at
such annual meeting and qualification of the director's successor or until his
or her earlier disqualification, resignation, removal, death or incapacity and
the term of office of any director elected by the shareholders or the Board of
Directors, as permitted by law, to fill any vacancy on the Board of Directors
occurring after the 2005 Annual Meeting shall extend until the next annual
meeting of shareholders and until the election at such annual meeting and
qualification of the director's successor or until his or her earlier
disqualification, resignation, removal, death or incapacity. (1)
(B) In addition to the right of the Board of Directors under law to
remove a director for cause, and subject to the voting rights of the holders of
any series of Preferred Stock, directors whose term of office is scheduled to
expire at the 2006 Annual Meeting may be removed from office before the
expiration of their terms of office only (i) for Cause (as defined below) with
the affirmative vote of the holders of a majority of the Common Shares present
(in person or by proxy) at a meeting of shareholders at which a quorum is
present or by the written consent in lieu of a meeting, as permitted by law, of
the holders of a majority of the Common Shares or (ii) without Cause with the
affirmative vote or written consent, as permitted by law, of the holders of 75%
of the Common Shares. In addition to the right of the Board of Directors under
law to remove a director for cause, and subject to the voting rights of the
holders of any series of Preferred Shares, commencing with the 2006 Annual
Meeting, directors may be removed from office before the expiration of their
terms of office at any time, with or without cause, by the affirmative vote of
the holders of a majority of the Common Shares present (in person or by proxy)
at a meeting of shareholders at which a quorum is present or, as permitted by
law, by the written consent in lieu of a meeting of the holders of a majority of
the Common Shares. For purposes of this Article Sixth (B), "Cause" for the
removal of a director shall mean conviction of a felony, any act of dishonesty
in respect of the Corporation or a breach of fiduciary duty to the Corporation.
With respect to the nomination of directors for election at the 2005 Annual
Meeting, the provisions of Section 4B of the bylaws as in effect on the
Effective Date shall apply.
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(1) [The provisions hereof regarding the term of office of the initial directors
as of the Effective Date, and related provisions, may be modified in order to
comply with applicable listing standards as pertinent to the initial listing of
the Common Shares.]
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(C) With respect to the election of directors, each shareholder shall
be entitled to cast for any candidate for election as a director only one vote
per share and shareholders shall not be entitled to cumulate their votes and
cast them in favor of one candidate or distribute them among any two or more
candidates.
(D) A director of the Corporation shall not be personally liable, as
such, for monetary damage for any action taken by him or her unless he or she
has breached or failed to perform the duties of his or her office under
subchapter B of chapter 17 of the PBCL and the breach or failure to perform
constitutes self-dealing, willful misconduct or recklessness, except as
otherwise specifically provided by the PBCL. No amendment or repeal of this
Article Sixth (D) shall apply to or have any effect on the liability or alleged
liability of any person who is or was a director of the Corporation for or with
respect to any act or omission occurring prior to the effective date of such
amendment or repeal. If Pennsylvania law is amended to permit a Pennsylvania
corporation to provide greater protection to persons who serve or have served as
directors of the corporation from personal liability with respect to their
service to the corporation as directors than provided by the terms of this
Article Sixth (D), then such protection shall also apply to the person who serve
or have served as directors of the Corporation and this Article Sixth (D) shall
be construed to provide such greater protection. To the fullest extent permitted
by law (including, without limitation, as permitted by section 1746 of the PBCL)
from time to time in effect, the Corporation shall indemnify persons who, after
the Effective Date, serve as its directors and officers and shall advance to
them expenses incurred in defending or responding to claims, actions,
investigations, inquiries and other proceedings and may, by provisions in its
bylaws, by contract and by any other means permitted by law, establish
reasonable procedures for the making of such indemnification and advancement of
expenses and may further obligate itself to provide indemnification or to
advance expenses to such persons and may set apart funds to provide for the
payment thereof. To the fullest extent permitted by law (including, without
limitation, as permitted by section 1746 of the PBCL) from time to time in
effect, the Corporation may indemnify persons who before the Effective Date
served as directors or officers of the Corporation and persons who, before or
after the Effective Date, serve as its employees and agents and may advance to
them expenses incurred in defending or responding to claims, actions,
investigations, inquiries and other proceedings and may, by provisions in its
bylaws, by contract and by any other means permitted by law, obligate itself to
provide indemnification or to advance expenses to such persons and may set apart
funds to provide for the payment thereof. Notwithstanding the foregoing
provisions of this Article Sixth (D), if Pennsylvania law shall be amended so as
to limit or reduce the indemnification which a Pennsylvania corporation may
provide to its directors or officers from that in effect on the Effective Date,
then, to the fullest extent permitted by law, such limitation or reduction shall
not apply to or have any effect on the right to indemnity or advancement of
expenses provided by this Article Sixth (D) to a person who served as a director
or officer of the Corporation with respect to any act or omission occurring
prior to the effective date of such amendment.
(E) Commencing on the Effective Date, none of the provisions of
Subchapters 25D, 25E, 25F, 25G and 25H of the PBCL (as in effect on such date)
shall apply to the Corporation, except as may be required by law.
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(F) Special meetings of shareholders may be called by the Board of
Directors, by shareholders entitled to cast at least 20% of the votes that all
shareholders generally are entitled to cast in the election of directors, by
such holders of Preferred Shares as may be permitted to call a meeting of
shareholders by provision of an amendment to the articles of incorporation of
the Corporation adopted by the Board of Directors as provided by Article Fifth
(B) hereof and by such officers of the Corporation or other persons as may be
provided in the bylaws of the Corporation.
(G) To the fullest extent and in the manner permitted by law, any
action required or permitted to be taken at a meeting of shareholders or a class
or series of shareholders may be taken without a meeting of the shareholders or
of such class or series of shareholders upon the consent in writing signed by
such shareholders who would have been entitled to vote the minimum number of
votes that would be necessary to authorize the action at a meeting at which all
the shareholders entitled to vote thereon were present and voting.
(H) Commencing on the Effective Date and continuing until the
Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust (the
"Settlement Trust") first ceases to be the Beneficial Owner (as hereinafter
defined) of at least 20% of the outstanding Common Shares of the Corporation,
the following additional provisions shall apply to the management of the
business and affairs of the Corporation:
(i) Until the 2006 Annual Meeting, in addition to any requirements or
limitations relating to the establishment or functions of a committee of the
Board of Directors provided by law and to any requirements relating thereto
established by the bylaws, the selection of the members of any committee of the
Board of Directors shall require approval by the affirmative vote of at least
all but one of the members of the Board of Directors (assuming no vacancies).
(ii) The Board of Directors shall present to the shareholders
nominations of candidates for election to the Board of Directors (or recommend
the election of such candidates as nominated by others) such that, and shall
take such other corporate actions as may be reasonably required to provide that,
to the best knowledge of the Board of Directors, if such candidates are elected
by the shareholders, at least a majority of the members of the Board of
Directors shall be Independent Directors (as hereinafter defined). The Board of
Directors shall only elect any person to fill a vacancy on the Board of
Directors if, to the best knowledge of the Board of Directors, after such
person's election at least a majority of the members of the Board of Directors
shall be Independent Directors. The foregoing provisions of this paragraph shall
not cause a director who, upon commencing his or her service as a member of the
Board of Directors was determined by the Board of Directors to be an Independent
Director but did not in fact qualify as such, or who by reason of any change in
circumstances ceases to qualify as an Independent Director, from serving the
remainder of the term as a director for which he or she was selected.
Notwithstanding the foregoing provisions of this paragraph, no action of the
Board of Directors shall be invalid by reason of the failure at any time of a
majority of the members of the Board of Directors to be Independent Directors.
For purposes hereof, "Independent Director" shall mean a director who (i)
qualifies as an "independent director" within the meaning of the corporate
governance listing standards from time to time adopted by the New York Stock
Exchange or the Nasdaq Stock Market, whichever the Common Shares are listed for
trading on at the time (or, if at any time the Common Shares are not listed on
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either such market, as would be applicable if the Common Shares were then listed
on the New York Stock Exchange) with respect to the composition of the board of
directors of a listed company (without regard to any independence criteria
applicable under such standards only to the members of a committee of the board
of directors) and (ii) also satisfies the minimum requirements of director
independence of Rule 10A-3(b)(1) under the Securities Exchange Act, as amended,
as from time to time in effect (the "Exchange Act")), whether or not such
director is a member of the audit committee.
(iii) The Settlement Trust will not Transfer (as hereinafter
defined), in one transaction or a series of related transactions, any Common
Shares representing more than five percent of the outstanding Common Shares (or
Voting Shares (as hereinafter defined) entitling the holders thereof to cast
more than five percent of all the votes which the holders of all Voting Shares
are entitled to cast in the election of directors of the Corporation) to any
Person (a "Proposed Purchaser") who, after giving effect to the transaction or
series of related transactions, would Beneficially Own Voting Shares entitling
the holders thereof to cast more than 35% of the votes which the holders of all
Voting Shares are entitled to cast in the election of directors of the
Corporation or more of such votes than the Settlement Trust is entitled to cast,
and the Corporation will not register or give effect to any such Transfer,
unless (A) such Transfer is (1) pursuant to a bona fide public distribution made
either under an effective registration statement under the Securities Act of
1933, as amended (and from time to time in effect), (2) in a transaction
satisfying the requirements of Regulation S (and from time to time in effect)
under such Act, (3) in a transaction satisfying the requirements of Rule 144 (as
from time to time in effect) under such Act, other than by reason of satisfying
the provisions of Rule 144(k) thereof, or (4) is effected through "brokers'
transactions" within the meaning of Section 4(4) of such Act or a transaction
with a "market maker" as defined in Section 3(c)(38) of the Exchange Act, or (B)
all other Common Shareholders are afforded the opportunity to participate in the
transaction or series of transactions on the same terms (including, without
limitation, the same type and amount of consideration per share) as the
Settlement Trust, which requirement shall be deemed satisfied if the other
Common Shareholders are provided an opportunity to sell the Voting Shares they
own in accordance with the following provisions of this paragraph, or (C) in the
case of a disposition of shares of Voting Shares by the Settlement Trust
pursuant to a merger, consolidation, recapitalization or similar corporate
transaction involving the Corporation, the material terms of the transaction
have been approved by a majority of the Disinterested Directors (as defined in
paragraph (v) of this Article Sixth (H)) or such vote of the holders of the
Common Shares as is required by law, the articles of incorporation or the bylaws
of the Corporation or applicable listing standards; provided, however, that, if
the transaction would result in the Settlement Trust receiving a type or amount
of consideration per share in respect of its shares that is different from the
other Common Shareholders, the transaction has been approved by the affirmative
vote of the holders of a majority of the Common Shares not Beneficially Owned by
the Settlement Trust (in addition to approval by any other shareholder vote
required). The entry by the Settlement Trust into a prepaid variable share
forward contract or other derivative contract (such as those known as TRACES or
SAILS) shall not constitute a Transfer of shares for purposes of this paragraph,
even if it relates to Voting Shares entitling the holders thereof to cast more
than five percent of all the votes which the holders of all Voting Shares are
entitled to cast in the election of directors of the Corporation, to the extent
such contract is a legitimate hedging transaction and neither such contract nor
the settlement thereof will result in a counterparty becoming the Beneficial
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Owner of Voting Shares entitling the holders thereof to cast more than 35% of
the votes which the holders of all Voting Shares are entitled to cast in the
election of directors of the Corporation or more of such votes than the
Settlement Trust is entitled to cast). The terms and conditions of a Transfer by
the Settlement Trust of Common Shares to a Proposed Purchaser will be deemed
permitted by this paragraph if, in connection with such Transfer, the Proposed
Purchaser shall have publicly undertaken to commence a tender offer in
accordance with the Exchange Act and the applicable regulations thereunder,
which shall be scheduled to close not later than 60 days after the Transfer of
the Settlement Trust's shares (subject to any extension where required to
satisfy conditions established by such tender offer), pursuant to which the
other Common Shareholders will have the right to tender for purchase for the
same type and amount of consideration per share available to the Settlement
Trust in the Transfer, at each other Common Shareholder's option, a number of
Common Shares equal to the product of (i) the total number of Common Shares
owned by the other Common Shareholders and (ii) a fraction, the numerator of
which shall be the number of Common Shares that the Settlement Trust proposes so
to Transfer to the Proposed Purchaser and the denominator of which shall be the
total number of Common Shares then owned by the Settlement Trust. For purposes
hereof, (i) "Transfer" shall mean, directly or indirectly transfer, to sell,
assign, donate, contribute, place in trust (including a voting trust), or
otherwise voluntarily or involuntarily dispose of, (ii) "Voting Shares" shall
mean shares of the Corporation, of any class or series, entitled to vote for the
election of directors of the Corporation (including Common Shares), other than
Preferred Shares entitled to vote for the election of directors who are to be
elected only by the holders of a particular class or series of shares, or
collectively by the holders of two or more classes or series of shares, and only
in the event of an arrearage in payment of dividends on such class or series of
shares and who constitute less than one-third of all the directors (assuming no
vacancies on the Board of Directors), and (iii) "Beneficially Owned" or
"Beneficial Ownership" shall have the meaning prescribed by Regulation 13D-G
under the Exchange Act, as amended and from time to time in effect.
(iv) The Corporation shall not, without the prior written approval of
the Settlement Trust, adopt or maintain a shareholder rights plan, "poison pill"
or similar plan (however designated) which provides some, but not all, holders
of Common Shares, in the event of the acquisition by any person or group of
persons acting in concert of Voting Shares (as defined in paragraph (iii) of
Article Sixth (H) hereof) constituting more than a specified level of ownership
of the Corporation and with or without additional conditions or exceptions (an
"Acquiring Person"), the right to acquire securities of the Corporation or of
any successor company, or of any controlling person thereof, on more favorable
terms than available to the Acquiring Person, or which limits the voting or
other rights or the Acquiring Person, or which is otherwise designed to, or has
the effect of, similarly making acquisition of additional Voting Shares by an
Acquiring Person more difficult or expensive than would be the case in the
absence of such shareholder rights or similar plan by providing to other
shareholders any right or benefit which the Acquiring Person is not accorded.
(v) Any transaction between the Corporation or any Subsidiary (as
hereinafter defined) and the Settlement Trust or any Affiliate (as hereinafter
defined) thereof (other than a dividend or other distribution made to all
shareholders pro rata to their shareholdings and otherwise on terms which are
the same with respect to the Settlement Trust and all other participating
shareholders), shall require review by and approval of a majority of the
Disinterested Directors (as hereinafter defined), whether or not such review and
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approval is required by law or applicable listing standards, subject to any
exception from such review and approval for transactions of an immaterial nature
determined under such criteria as have been approved in advance by a majority of
the Disinterested Directors; provided, however, that, in the case of any
transaction or series of related transactions involving the cancellation,
retirement, disposition, conversion, exchange or reclassification of the shares
of the Corporation, or any dividend, distribution or payment in respect of
outstanding shares of the Corporation, pursuant to a merger, consolidation,
recapitalization, reorganization or similar corporate transaction, which
transaction would result in the Settlement Trust receiving any dividend,
distribution, security, other property or payment that differs from that which
would be received by all other holders of Common Shares, then the approval of
the holders of a majority of the Common Shares not owned or controlled by the
Settlement Trust shall be required (in addition to approval by any shareholder
vote otherwise required, but approval of the Disinterested Directors shall not
be required hereby). For the purposes hereof, (A) "Affiliate" (and "Affiliated")
shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange
Act, as in effect on the Effective Date, (B) "Disinterested Directors" in
respect of a transaction or potential transaction (or category of immaterial
transactions) shall mean the directors of the Corporation who are not Affiliated
with the Settlement Trust and who have no personal financial interest in the
transaction (other than the same interest, if a shareholder of the Corporation,
as the other shareholders of the Corporation) and (iii) "Subsidiary" shall mean
any company controlled, directly or indirectly, by the Corporation.
(vi) Sections 4 and 5 of Article II of the bylaws of the Corporation
as in effect on the Effective Date shall not apply to the Settlement Trust and
the Board of Directors shall not adopt any bylaw or take any other action that
would eliminate, limit, regulate or subject to any condition or procedural
requirement the submission of any matter by the Settlement Trust for
consideration by the shareholders at a meeting or by written consent, including
(without limitation) the nomination of candidates for election of directors;
provided, however, that this provision shall not prevent the Board of Directors
from taking any action regarding shareholder nominations or shareholder
proposals applicable to shareholders generally (even though also applicable to
the Settlement Trust on a basis no more restrictive than any other shareholder)
if such action is required by the Exchange Act or a regulation issued thereunder
or by listing standards of the market on which the Common Shares are listed for
trading and the Corporation cannot comply with such requirement by taking any
action that does not restrict the Settlement Trust or is less restrictive on the
Settlement Trust.
(vii) The Corporation shall not without the prior, written consent of
the Trust (in addition to any shareholder vote required under applicable law):
(a) authorize any new class of shares (i.e., other than the
Common Shares or Conventional Preferred
Shares);
(b) issue any Preferred Shares, other than Conventional
Preferred Shares (as hereinafter defined);
(c) [before the fifth anniversary of the Effective Date,]
implement any stock option, restricted stock,
stock bonus or stock purchase plan, or any similar plan or arrangement, pursuant
to which any one or more of the officers, directors or employees of, or
consultants to, the Corporation or any of its Subsidiaries, or any person who is
the Beneficial Owner of 5% or more of the Voting Shares, may acquire shares of
the Corporation, except:
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(1) as permitted by the Long-Term Incentive Plan of the
Corporation adopted on or about the Effective Date,
(2) for a dividend reinvestment plan or any plan or arrangement
whereby any dividend, distribution, offer, issuance or sale of options,
warrants, subscription rights or other equity interests is offered or made to
shareholders of the Corporation generally, substantially in proportion to their
shareholdings, or
(3) where options or shares are to be issued to a person not
previously employed by the Corporation, as an inducement to such person's
entering into an employment or consulting contract with the Corporation.
"Conventional Preferred Shares" shall mean Preferred Shares which satisfy all of
the following requirements:
(a) the Preferred Shares are not convertible into, exchangeable for
or exercisable to acquire Common Shares or any other class or series of shares
of the Corporation, except that Preferred Shares shall be Conventional Preferred
Shares if, but only if, they may be convertible into, exchangeable for or
exercisable (1) only at a fixed conversion, exchange or exercise ratio or price
(except that such conversion, exchange or exercise ratio or price may be subject
to anti-dilution adjustments that are conventional for publicly-offered,
investment-grade convertible preferred shares), (2) only at a conversion,
exchange or exercise price (or ratio equivalent to a price) that, in the good
faith judgment of the Board of Directors based on the advice of a nationally
recognized investment banking firm, represents a premium to the market price of
the Common Shares at the time of issuance of such Preferred Shares, and (3) only
to acquire the number of Common Shares that (together with any other Preferred
Shares to be issued in any related transaction), at the time of issuance of such
Preferred Shares, would represent not more than 20% of the sum of the total
number of Common Shares outstanding at the time of issuance of such Preferred
Shares plus the number of Common Shares that would be issued upon exercise in
full of such conversion, exchange or acquisition rights of such Preferred
Shares;
(b) the Preferred Shares are not entitled to participate in dividends
or distributions with the Common Shares or to dividends or distributions based
on earnings or other results of operations of the Company (except insofar as
earnings or results of operations may affect the amount legally available for
the payment of dividends);
(c) the Preferred Shares and are not entitled to vote in the election
of directors or vote on or consent to any other matter, except to vote on or
consent to the election of not more than two directors in the event of an
arrearage in the payment of preferred dividends thereon for a period of not less
than 180 days and to vote on or consent to any amendment to the articles of
incorporation of the Corporation that would adversely affect the rights, powers
or privileges of such Preferred Shares or a merger, consolidation or other
similar corporate transaction that would have the effect of leaving the
Preferred Shares outstanding and amending the rights, powers or privileges of
such Preferred Shares as established by the articles of incorporation of the
Corporation in a way that would adversely affect such rights, powers or
privileges, and
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(d) the Preferred Shares do not have, in the good faith judgment of
the Board of Directors approved by the affirmative vote of three-fourths of the
members of the Board of Directors based on the advice of a nationally recognized
investment banking firm and after consultation with the Settlement Trust, other
rights, powers or privileges which are not customary for publicly-offered,
investment-grade preferred shares.
(viii) Any amendment or repeal of the bylaws of the Corporation by
the Board of Directors permitted by Article Eighth (B) hereof, and any change in
the number of members of the Board of Directors permitted by Article Sixth (A)
hereof to be made by the Board of Directors as provided pursuant to the bylaws
of the Corporation, shall require the affirmative vote of at least 75% of the
Board of Directors (assuming no vacancy on the Board of Directors); provided,
however, that, without the prior written consent of the Settlement Trust, the
Board may not increase the number of members of the Board of Directors to be
more than nine at any time when the holders of Preferred Shares (of one or more
series) are permitted to elect one or more directors.
(ix) Any amendment of the articles of incorporation of the
Corporation, other than an amendment permitted without a vote of the
shareholders in accordance with Article Fifth (B) hereof, and any action by the
Board of Directors of the Corporation to establish or issue any series of
Preferred Shares as permitted by Article Fifth (B) hereof shall require the
affirmative vote of at least 75% of the Board of Directors (assuming no vacancy
on the Board of Directors).
SEVENTH: Amendment of Articles of Incorporation: The articles of
incorporation of the Corporation may be amended, modified or repealed and new
provisions adopted as permitted by law, except that the provisions of Articles
Sixth (A), (B), (F), (G) and (H) and this Article Seventh of these Amended and
Restated Articles of Incorporation may be amended, modified or repealed, and any
inconsistent provision may be adopted, only with the affirmative vote or written
consent, as permitted by law, of the holders of 80% of the Common Shares.
EIGHTH: Effective Time; Bylaws.
(A) These Amended and Restated Articles of Incorporation shall become
effective upon filing with the Office of the Secretary of State of the
Commonwealth of Pennsylvania [at _:__ _.m. on _________, __, 200_ ].
(B) The bylaws of the Corporation adopted by the sole shareholder of
the Corporation before the effective time of these Amended and Restated Articles
of Incorporation and by their terms effective upon the effectiveness hereof
shall be the bylaws of the Corporation commencing on the effectiveness hereof
and may thereafter be amended, to the extent provided by such bylaws, by the
shareholders or (to the fullest extent permitted by law, including, without
limitation, with respect to the matters referred to in section 1504(b) of the
PBCL) by the Board of Directors (subject, however, to the power of the
shareholders to adopt, amend and repeal bylaws).
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