Exhibit 3 (a)
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
OWENS & MINOR, INC..
ARTICLE I.
NAME
The name of the Corporation shall be OWENS & MINOR, INC.
ARTICLE II.
PURPOSES.
The purposes for which the Corporation is formed are:
1. To buy, sell, distribute and trade in medical and
surgical supplies and equipment, pharmaceuticals, drugs and merchandise of
every sort, class and description at wholesale or at retail, as principal
or as agent, alone or in partnership with any other person, firm or
corporation within and without the Commonwealth of Virginia and the United
States of America and to do and perform every act and to carry on every
business which shall be incidental thereto.
2. In addition, the Corporation shall have the power to
transact any and all lawful business not required to be stated specifically
in the articles of incorporation for which corporations may be incorporated
under Chapter I of Title 13.1 of the Code of Virginia of 1950 as in effect
on the effective date of these Articles or as amended subsequently thereto.
ARTICLE III.
CAPITAL STOCK.
The maximum number of authorized shares of the capital
stock of the Corporation shall be Two Hundred Million (200,000,000) shares
of Common Stock of the par value of Two Dollars ($2.00) per share, and Ten
Million (10,000,000) shares of Cumulative Preferred Stock of the par value
of One Hundred Dollars ($100.00) per share, issuable in series as is
hereinafter provided.
The description of the Cumulative Preferred Stock and of
the Common Stock and the designations, preferences and voting powers of
such classes of stock, or restrictions or qualifications thereof and the
terms upon which such stock is to be issued are as follows:
PART A.
CUMULATIVE PREFERRED STOCK.
1. Issuance in Series. The Cumulative Preferred Stock
shall be divided into and issued from time to time in one or more series,
each which series shall be so designated as to distinguish the shares
thereof from all other series and classes. The Board of Directors shall
have the authority to divide the Cumulative Preferred Stock into series by
resolution setting forth the designation and number of shares of each
series and the relative rights and preferences thereof in the following
respects, as to which there may be variation between different series:
(a) The rate of dividend, the time of payment and the
dates from which any dividends shall be cumulative and the
extent of participation rights, if any;
(b) Any right to vote with holders of shares of any
other series or class and any right to vote as a class
either generally or as a condition to specified corporate
action, subject to the limitations of Section 4 of Part A
of this Article III;
(c) The price at which and the terms and conditions
upon which shares may be redeemed;
(d) The amount payable upon shares in the event of
involuntary liquidation;
(e) The amount payable upon shares in the event of
voluntary liquidation;
(f) Sinking fund provisions of the redemption or
purchase of shares, if any;
(g) The terms and conditions upon which shares may be
converted, if the shares of any series are issued with the
privilege of conversion.
The Board of Directors shall have the further authority to
redesignate any shares of any series theretofore established which have not
been issued or which have been issued and retired as shares of some other
series or to change the designation of outstanding shares when desired to
prevent confusion.
All shares of Cumulative Preferred Stock of any one series
shall be identical with each other in all respects except, if so determined
by the Board of Directors, as to the dates from which dividends thereon
shall be cumulative. The shares of Cumulative Preferred Stock shall be
equal in rank with each other regardless of series and shall be identical
with each other in all respects except as hereinabove provided.
2. Preferences over Common Stock. The Cumulative
Preferred Stock as a class shall have preference over the Common Stock as
to the payment of dividends and in the distribution of the assets of the
Corporation in the event of any liquidation and dissolution, whether
voluntary or involuntary. All shares of Cumulative Preferred Stock of
every series shall share ratably in the distribution of assets upon
dissolution if the assets of the Corporation are insufficient to pay the
full liquidation price of all shares of Cumulative Preferred Stock of every
series.
So long as any dividend on any series of Cumulative
Preferred Stock shall be in arrears, no dividend shall be declared and paid
on the Common Stock except dividends payable in shares of Common Stock, nor
shall the Corporation purchase or otherwise acquire for a consideration any
shares of Common Stock.
3. Redemption of Cumulative Preferred Stock. Subject to
any other provision of these Articles of Incorporation to the contrary and
to the right of the Board of Directors to fix in any resolution of serial
designation adopted by it the terms and conditions upon which shares of any
series may be redeemed, in the event of any redemption of shares of
Cumulative Preferred Stock by the Corporation, it may at the option of the
Board of Directors redeem the whole or any part of the Cumulative Preferred
Stock at any time outstanding upon not less than thirty (30) nor more than
sixty (60) days previous notice by mail to the holders of record of the
shares to be redeemed. If less than the whole of a series shall be
redeemed, the shares to be so redeemed shall be determined by lot or in
such other manner as the Board of Directors may determine. If such notice
of redemption shall have been duly given, and if on or before the
redemption date specified in such notice, the funds necessary for such
redemption shall have been deposited in trust with any bank or trust
company in the City of Richmond, Virginia, having capital and unrestricted
surplus aggregating at least TEN MILLION DOLLARS ($10,000,000) named in
such notice, to be applied to the redemption of the Cumulative Preferred
Stock so called for redemption, then from the time of such deposit all
shares of Cumulative Preferred Stock for the redemption of which such
deposit shall have been made shall be deemed no longer to be outstanding
for any purpose and all rights with respect to such shares shall thereupon
terminate, except the right to receive the redemption price on deposit,
without interest thereon. Any interest accrued upon or earned by such
deposit shall be paid to the Corporation. At the end of five (5) years
from the redemption date named in such notice, any funds so deposited which
then remain unclaimed shall be paid to the Corporation free of any trust.
Any holder of Cumulative Preferred Stock so called for redemption as shall
not have received the redemption price prior to such repayment to the
Corporation shall be deemed to be an unsecured creditor of the Corporation
for the amount of the redemption price and shall look only to the
Corporation for the payment thereof, without interest.
4. Voting Rights of Cumulative Preferred Stock. Except
as set forth elsewhere in these Articles of Incorporation and as shall be
provided in any resolution of serial designation adopted by the Board of
Directors, the holders of the Cumulative Preferred Stock shall not be
entitled to any vote except as to matters in respect of which they shall at
the time be indefeasibly vested by statute with such right. The Board of
Directors may grant to holders of any series of Cumulative Preferred Stock
the right to vote as a class for the election of Directors only upon the
following terms and conditions and subject to the following limitations:
(a) Such right to vote as a class for the election of
Directors shall not be exercisable unless and until the
Corporation shall be in arrears for the payment of four (4)
or more dividends on any series of Cumulative Preferred
Stock.
(b) The number of Directors elected by holders of
Cumulative Preferred Stock of all series shall not exceed
two (2) in the aggregate.
(c) Such power to elect Directors, if granted to more
than one series, shall apply to all series as a class, and
not separately.
(d) No Director elected by the Cumulative Preferred
Stock, if such power be conferred upon any series of such
stock, shall be classified with the Directors elected by
the Common Stock, but any such Directors so elected by the
Cumulative Preferred Stock shall serve as a separate class
to be elected annually and shall serve in addition to the
number of classified Directors elected by the Common Stock
as provided in the bylaws of the Corporation. They,
together with the classified Directors as provided in the
bylaws, shall constitute the Board of Directors.
(e) Immediately upon the payment of all dividends in
arrears, any Director or Directors so elected by the
Cumulative Preferred Stock shall cease to act and shall no
longer be Directors of the Corporation.
5. Series A Preferred Stock. The first series of
Cumulative Preferred Stock shall be designated "Series A Participating
Cumulative Preferred Stock" ("Series A Preferred Stock") and the number of
shares constituting such series shall be 300,000. The preferences,
limitations and relative rights of shares of Series A Preferred Stock shall
be as follows:
(a) Dividends and Distributions.
(1) Subject to the prior and superior rights of
the holders of any shares of any series of Preferred
Stock ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock in
preference to the holders of 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 therefor, dividends payable
quarterly on the fifteenth day of each February, May,
August and November (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 A Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the
greater of (a) $6.50 or (b) subject to the provision
for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions
other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a
share of Series A Preferred Stock. 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
amount to which holders of shares of Series A
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.
(2) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as
provided in paragraph (1) above immediately after it
declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend
or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend at the rate of $6.50
per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(3) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A
Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of
holders of shares of Series A 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 A 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 A
Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
(b) Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(1) Subject to the provision for adjustment
hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to
one vote on all matters submitted to a vote of the
shareholders of the Corporation.
(2) Except as otherwise provided herein, in the
Articles of Incorporation or under applicable law, the
holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock shall vote together
as one voting group on all matters submitted to a vote
of stockholders of the Corporation.
(3) (i) If at any time dividends on any shares
of Series A Preferred Stock shall be in arrears in an
amount equal to six quarterly dividends thereon, the
occurrence of such contingency shall mark the
beginning of a period (a "default period") that shall
extend until such time when all accrued and unpaid
dividends for all previous quarterly dividend periods
and for the current quarterly dividend period on all
shares of Series A Preferred Stock then outstanding
shall have been declared and paid or set apart for
payment. During each default period, all holders of
the outstanding shares of Series A Preferred Stock
together with any other series of Preferred Stock then
entitled to such a vote under the terms of the
Articles of Incorporation, voting as a separate voting
group, shall be entitled to elect two members of the
Board of Directors of the Corporation.
(ii) During any default period, such voting
right of the holders of Preferred Stock may be
exercised initially at a special meeting called
pursuant to subparagraph (iii) of this Section 5(b)(3)
or at any annual meeting of shareholders, and
thereafter at annual meetings of shareholders,
provided that neither such voting right nor the right
of the holders of any other series of Preferred Stock,
if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the
holders of ten percent (10%) in number of shares of
Preferred Stock outstanding shall be present in person
or by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At
any meeting at which the holders of Preferred Stock
shall exercise such voting right initially during an
existing default period, they shall have the right,
voting as a separate voting group, to elect Directors
to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors,
or if such right is exercised at an annual meeting, to
elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the
required number, the holders of the Preferred Stock
shall have the right to make such increase in the
number of Directors as shall be necessary to permit
the election by them of the required number. After the
holders of the Preferred Stock shall have exercised
their right to elect Directors in any default period
and during the continuance of such period, the number
of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with
the Series A Preferred Stock.
(iii) Unless the holders of Preferred Stock
shall, during an existing default period, have
previously exercised their right to elect Directors,
the Board of Directors may order, or any shareholder
or shareholders owning in the aggregate not less than
ten percent (10%) of the total number of shares of
Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the
holders of Preferred Stock, which meeting shall
thereupon be called by the Chairman, President, a
Vice-President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at
which holders of Preferred Stock are entitled to vote
pursuant to this paragraph 5(b)(3)(iii) shall be given
to each holder of record of Preferred Stock by mailing
a copy of such notice to him at his last address as
the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 10
days and not later than 60 days after such order or
request. In the event such meeting is not called
within 60 days after such order or request, such
meeting may be called on similar notice by any
shareholder or shareholders owning in the aggregate
not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding. Notwithstanding
the provisions of this paragraph 5(b)(3)(iii), no such
special meeting shall be called during the period
within 60 days immediately preceding the date fixed
for the next annual meeting of the shareholders.
(iv) In any default period, the holders of
Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until
the holders of Preferred Stock shall have exercised
their right to elect two (2) Directors voting as a
separate voting group, after the exercise of which
right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their
successors shall have been elected by such holders or
until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as
provided in paragraph 5(b)(3)(ii)) be filled by vote
of a majority of the remaining Directors theretofore
elected by the voting group which elected the Director
whose office shall have become vacant. References in
this paragraph 5(b)(3)(iv) to Directors elected by a
particular voting group shall include Directors
elected by such Directors to fill vacancies as
provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of
Preferred Stock, as a separate voting group, to elect
Directors shall cease, (y) the term of any Directors
elected by the holders of Preferred Stock, as a
separate voting group, shall terminate, and (z) the
number of Directors shall be such number as may be
provided for in, or pursuant to, the Articles of
Incorporation or bylaws irrespective of any increase
made pursuant to the provisions of paragraph
5(b)(3)(ii) (such number being subject, however, to
change thereafter in any manner provided by law or in
the Articles of Incorporation or bylaws). Any
vacancies in the Board of Directors affected by the
provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining
Directors, even though less than a quorum.
(4) Except as set forth herein or as otherwise
provided in the Articles of Incorporation, holders of
Series A 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 Common Stock as set forth herein) for taking any
corporate action.
(c) Certain Restrictions.
(1) Whenever quarterly dividends or other
dividends or distributions payable on the Series A
Preferred Stock as provided in Section 5(a) are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Corporation shall
not:
(i) declare or pay or set apart for payment
any dividends (other than dividends payable in shares
of any class or classes of stock of the Corporation
ranking junior to the Series A Preferred Stock) or
make any other distributions on, any class of stock of
the Corporation ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock and shall not redeem,
purchase or otherwise acquire, directly or indirectly,
whether voluntarily, for a sinking fund, or otherwise
any shares of any class of stock of the Corporation
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series
A Preferred Stock, provided that, notwithstanding the
foregoing, the Corporation may at any time redeem,
purchase or otherwise acquire shares of stock of any
such junior class in exchange for, or out of the net
cash proceeds from the concurrent sale of, other
shares of stock of any such junior class;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
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
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity 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
A Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock,
or any shares of stock ranking on a parity with the
Series A 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.
(2) 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 (1) of Section 5(c), purchase or otherwise
acquire such shares at such time and in such manner.
(d) Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set
forth herein.
(e) Liquidation, Dissolution or Winding Up.
(1) Upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to the
holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A
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 (the "Series A Liquidation
Preference"). Following the payment of the full amount
of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares
of Series A Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received
an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph f(iii) below to
reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common
Stock) (such number in clause (ii) being hereinafter
referred to as the "Adjustment Number"). Following
the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A
Preferred Stock and Common Stock, respectively,
holders of Series A Preferred Stock and holders of
shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1
with respect to such Series A Preferred Stock and
Common Stock, on a per share basis, respectively.
(2) In the event, however, that there are not
sufficient assets available to permit payment in full
of the Series A Liquidation Preference and the
liquidation preferences of all other series of
Preferred Stock, if any, then such remaining assets
shall be distributed ratably to the holders of all
such shares in proportion to their respective
liquidation preferences. In the event, however, that
there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the
holders of Common Stock.
(3) 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 Adjustment Number
in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment 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.
(f) Consolidation, Merger, Share Exchange, etc. In
case the Corporation shall enter into any consolidation,
merger, share exchange, combination or other transaction in
which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any
other property, then in any such case the shares of Series
A Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to
100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock
is changed or exchanged. In the event the Corporation shall
at any time (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 amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series
A 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.
(g) Redemption. The outstanding shares of Series A
Preferred Stock may be redeemed at the option of the Board
of Directors as a whole, but not in part, at any time, or
from time to time, at a cash price per share equal to (i)
the par value thereof, plus (ii) all dividends which on the
redemption date have accrued on the shares to be redeemed
and have not been paid or declared and a sum sufficient for
the payment thereof set apart, without interest.
(h) Ranking. The Series A Preferred Stock shall rank
on a parity with all other series of Preferred Stock as to
the payment of dividends and the distribution of assets.
(i) Amendment. The Articles of Incorporation shall not
be further amended in any manner that would adversely
affect the preferences, rights or powers of the Series A
Preferred Stock without the affirmative vote of the holders
of more than two-thirds of the outstanding shares of the
Series A Preferred Stock, if any, voting separately as one
voting group.
(j) Fractional Shares. Series A Preferred Stock may be
issues of one one-hundredth of a share (and integral
multiples thereof) which shall entitle the holder, in
proportion to such holders' fractional shares, to exercise
voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights
of holders of Series A Preferred Stock.
6. Series B Preferred Stock. The second series of
Cumulative Preferred Stock shall be designated "Series B Cumulative
Preferred Stock" ("Series B Preferred Stock") and the number of shares
constituting such series shall be 1,150,000. The preferences, limitations
and relative rights of shares of Series B Preferred Stock shall be as
follows:
(a) Dividends and Distributions.
(1) The holders of shares of Series B Preferred
Stock, in preference to the holders of Common Stock
and of any other capital stock of the Corporation
ranking junior to the Series B Preferred Stock as to
payment of dividends, shall be entitled to receive,
when, as and if declared by the Board of Directors out
of funds legally available therefor, a per annum cash
dividend of $4.50 per share, and no more, payable in
equal quarterly amounts of $1.125 each on the last day
of each January, April, July and October of each year,
beginning July 31, 1994 (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), to
holders of record on the fifteenth day of each such
respective month, commencing on the first Quarterly
Dividend Payment Date after the first issuance of a
share of Series B Preferred Stock.
(2) 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 of Series B
Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of
holders of shares of 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.
(b) Voting Rights. The holders of shares of Series B
Preferred Stock shall be entitled to vote on all
matters submitted to a vote of the shareholders of the
Corporation, voting together with the holders of
shares of other series of the Preferred Stock entitled
to vote thereon and the Common Stock as a single
voting group. Each share of Series B Preferred Stock
shall entitle the holder thereof to a number of votes
equal to the number of shares of Common Stock into
which such Series B Preferred share could be converted
in accordance with Section 6(g) on the record date for
determining the shareholders entitled to vote; it
being understood that whenever the "Conversion Price"
(as defined in Section 6(g)(1)) is adjusted as
provided in Section 6(g)(5) the number of votes to
which each share of Series B Preferred Stock is
entitled shall also be similarly adjusted.
(c) Certain Restrictions.
(1) Whenever quarterly dividends or other
dividends or distributions payable on Series B
Preferred Stock as provided in Section 6(a) 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, or declared and set
apart for payment, the Corporation shall not:
(i) declare or pay or set apart for payment
any dividends (other than dividends payable in
shares of any class or classes of stock of the
Corporation ranking junior to Series B Preferred
Stock as to payment of dividends or warrants or
rights to acquire such stock) or make any other
distributions on, any class of stock of the
Corporation ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to
Series B Preferred Stock ("Junior Stock"), other
than distributions of rights ("Rights") pursuant
to the Rights Agreement, dated as of June 22,
1988, between Owens & Minor, Inc. and the rights
agent thereunder, as heretofore amended and as it
may be further amended, in accordance with it
terms, or replaced from time to time (such
agreement, as so amended or replaced, being
hereinafter referred to as the "Rights
Agreement"), and shall not redeem, purchase or
otherwise acquire, directly or indirectly, whether
voluntarily, for a sinking fund, or otherwise any
shares of Junior Stock, provided that,
notwithstanding the foregoing, the Corporation may
at any time redeem, purchase or otherwise acquire
shares of Junior Stock in exchange for, or out of
the net cash proceeds from the concurrent sale of,
other shares of Junior Stock or warrants or rights
to acquire Junior Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series B Preferred Stock ("Parity Stock"), except
dividends paid or distributions made ratably on
Series B Preferred Stock and all such Parity Stock
on which dividends are payable or in arrears in
proportion to the total amounts of such dividends
to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any Parity
Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares
of any Parity Stock in exchange for shares of any
Junior Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series B Preferred
Stock, or any shares of Parity Stock, except as
permitted by the Articles of Incorporation of the
Corporation or 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, the amount of dividends in arrears
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.
(2) Notwithstanding the foregoing, nothing in
this Section 6(c) shall prevent the Corporation from
(i) declaring a dividend or distribution of Rights or
issuing Rights in connection with the issuance of
Series B Preferred Stock, Junior Stock or Parity
Stock, or (ii) redeeming Rights at a price not to
exceed $.01 per Right.
(3) 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 (1) of Section 6(c), purchase or otherwise
acquire such shares at such time and in such manner.
(d) 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 to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(e) Liquidation, Dissolution or Winding Up.
(1) Upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to the
holders of shares of stock ranking junior upon
liquidation, dissolution or winding up to 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 thereon, whether or not declared, to
the date of such payment, and no more (the "Series B
Liquidation Preference").
(2) In the event, however, that there are not
sufficient assets available to permit payment in full
of the Series B Liquidation Preference and the
liquidation preferences of all other series of
Preferred Stock, if any, then such remaining assets
shall be distributed ratably to the holders of all
such shares in proportion to their respective
liquidation preferences.
(f) Redemption. The outstanding shares of Series B
Preferred Stock may be redeemed only at the option of
the Corporation as a whole or in part at any time on
or after April 30, 1997, or from time to time
thereafter, at a cash price per share equal to (i) the
par value thereof, plus (ii) all accrued and unpaid
dividends thereon, whether or not declared, to the
redemption date; provided, however, that: (i) any
such redemption made before April 30, 2004 may be made
solely to the extent of the sum of (x) the net
proceeds from the sale or issuance by the Corporation
for cash from time to time after January 1, 1994 of
shares of capital stock of the Corporation or any
other securities convertible into, or exchangeable or
exercisable for such capital stock, plus (y) the fair
market value (as determined in good faith by the Board
of Directors of the Corporation) of all such capital
stock or other securities sold or issued by the
Corporation from time to time after January 1, 1994 in
exchange for other property (including, without
limitation, any thereof issued in exchange for stock,
securities or assets of other corporations or other
entities); and (ii) any redemption in part may only be
made if the aggregate market value (based on the
average of the closing prices of the Common Stock on
the New York Stock Exchange for the ten trading days
immediately preceding the date the Redemption Notice
(as defined below) is given) of the total number of
shares of Common Stock into which the Series B
Preferred Stock to be redeemed are at the time
convertible pursuant to Section (g)(1) is at least
$50,000,000.
Not less than 30 days nor more than 60 days prior
to the date fixed by the Corporation for redemption
(the "Redemption Date"), written notice (the
"Redemption Notice") shall be mailed by the
Corporation, postage prepaid, to each holder of record
of the Series B Preferred Stock at such holder's
address as it appears on the stock transfer books of
the Corporation. The Redemption Notice shall state:
(i) the total number of shares of Series B
Preferred Stock to be redeemed;
(ii) the number of shares of Series B Preferred
Stock held by the holder which the Corporation will
redeem;
(iii) the Redemption Date and the redemption
price;
(iv) the fact that the holder's conversion rights
will continue until the close of business on the
second business day preceding the Redemption Date;
(v) that the holder is to surrender to the
Corporation, in the manner and at the place
designated, his certificate or certificates
representing the shares of Series B Preferred Stock to
be redeemed; and
(vi) if the redemption is in part, the
Corporation's calculations showing compliance with
clause (ii) of the proviso in the first paragraph of
this Section 6(f).
(g) Conversion.
(1) Subject to and upon compliance with the
provisions of this Section (g), the holders of a majority
of the shares of Series B Preferred Stock outstanding at
the time shall have the right, at such holders' option and
upon written notice to the Corporation, at any time to
convert all of the outstanding shares of Series B Preferred
Stock into the number of fully paid and nonassessable
shares of Common Stock (calculated as to each conversion,
for the purpose of determining the amount of any cash
payments provided in Section (g)(4), to the nearest cent or
to the nearest .01 of a share of Common Stock, as the case
may be, with one-half cent and .005 of a share,
respectively, being rounded upward), obtained by dividing
$100 by the Conversion Price (as defined below) and
multiplying such resulting number by the number of shares
of Series B Preferred Stock to be converted. Such
conversion shall be effective at the close of business on
the first business day following the Corporation's receipt
of such notice. Except as provided in paragraph (2), no
shares of Series B Preferred Stock may be converted unless
all outstanding shares of Series B Preferred Stock are
surrendered for conversion.
The term "Conversion Price" shall mean $24.735, as
adjusted in accordance with the provisions of this Section
(g).
(2) Notwithstanding the requirement of conversion
in Section (g)(1), any shares of Series B Preferred Stock
called for redemption may be converted at any time before
the close of business on the second business day preceding
the Redemption Date, without causing the conversion of any
other shares. Upon any conversion pursuant to this Section
(g)(2), the Corporation shall pay to the holder of Series B
Preferred Stock so converted an amount in cash equal to all
accrued and unpaid dividends on such shares to and
including the date of conversion, whether or not declared
(with such amount being pro rated with respect to the then
current dividend period).
(3) In order to exercise the conversion privilege
in the case of a conversion specified in Section (g)(2), or
in order to receive certificates evidencing Common Stock
issuable upon a conversion specified in Section (g)(1) or
(g)(2), the holder of each share of Series B Preferred
Stock to be converted, or so converted, as the case may be,
shall surrender the certificate representing such share at
the office of any transfer agent for the Common Stock and
shall give written notice to the Corporation at such office
that such holder elects to convert the same, specifying the
name or names and denominations in which such holder wishes
the certificate or certificates for the Common Stock to be
issued (which notice may be in the form of a notice of
election to convert which may be printed on the reverse
side of the certificates for the shares of Series B
Preferred Stock). Unless the shares issuable on conversion
are to be issued in the same name as the name in which such
share of Series B Preferred Stock is registered, each
certificate evidencing shares surrendered for conversion
shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the
holder or his duly authorized attorney, and by an amount in
cash sufficient to pay any transfer or similar tax.
The holders of shares of Series B Preferred Stock
at the close of business on a Quarterly Dividend Payment
Date shall be entitled to receive any previously declared
dividend payable on such shares on such date
notwithstanding the Corporation's default in payment of the
dividend due on such Quarterly Dividend Payment Date.
Except as provided in Section (g)(2) and above in this
Section (g)(3), and without limiting the effect of Section
(g)(5)(b), the Corporation shall not be obligated to make
any payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or for dividends on the
shares of Common Stock issued upon such conversion, payable
in respect of any period before such conversion.
As promptly as practicable after the surrender of
the certificates for shares of Series B Preferred Stock as
provided above, the Corporation shall issue and shall
deliver at the office of any transfer agent for the Common
Stock to such holder, or on his written order, a
certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion of such shares
in accordance with the provisions of this Section (g),
together with a certificate or certificates representing
any shares of Series B Preferred Stock that are not to be
converted but shall have constituted part of the shares of
Series B Preferred Stock represented by the certificate or
certificates so surrendered, and any fractional interest in
respect of a share of Common Stock arising upon such
conversion shall be settled as provided in Section (g)(4).
Each conversion shall be deemed to have been
effected immediately prior to the close of business on the
date on which the certificates for shares of Series B
Preferred Stock shall have been surrendered and such notice
received by the Corporation as provided above (or such
later time as may be specified in such notice), and the
person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented
thereby at such time on such date, and such conversion
shall be at the Conversion Price in effect at such time on
such date, unless the stock transfer books of the
Corporation shall be closed on such date, in which event
such person or persons shall be deemed to have become such
holder or holders of record at the close of business on the
next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Price
in effect on the date upon which such shares shall have
been surrendered and such notice received by the
Corporation. All shares of Common Stock delivered upon
conversion of the shares of Series B Preferred Stock will
upon delivery be duly and validly issued and fully paid and
nonassessable, free of all liens and charges and not
subject to any preemptive rights.
(4) No fractional shares or scrip representing
fractions of shares of Common Stock shall be issued upon
conversion of shares of Series B Preferred Stock. Instead
of any fractional interest in a share of Common Stock that
would otherwise be deliverable upon the conversion of a
share of Series B Preferred Stock, the Corporation shall
pay to the holder of such share of Series B Preferred Stock
an amount in cash (computed to the nearest cent, with one-
half cent being rounded upward) equal to the Conversion
Price multiplied by the fraction of a share of Common Stock
represented by such fractional interest. If more than one
share of Series B Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of
full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate
Conversion Price of the shares of Series B Preferred Stock
so surrendered.
(5) The Conversion Price shall be adjusted (and
the other actions specified herein shall be taken) from
time to time as follows:
(a)
In case the Corporation shall (x) pay a dividend or
make a distribution on the Common Stock in shares of
Common Stock, (y) subdivide the outstanding Common
Stock into a greater number of shares or (z) combine
the outstanding Common Stock into a smaller number of
shares, the Conversion Price shall be adjusted so that
the holder of any share of Series B Preferred Stock
thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common
Stock of the Corporation that he would have been
entitled to receive after the happening of any of the
events described above had such share been converted
immediately prior to the record date, in the case of a
dividend, or the effective date, in the case of
subdivision or combination. An adjustment made
pursuant to this subparagraph (a) shall become
effective immediately after the record date in the
case of a dividend, and shall become effective
immediately after the effective date, in the case of a
subdivision or combination.
(b)
In case the Corporation shall distribute to holders of
Common Stock generally any shares of capital stock of
the Corporation (other than Common Stock) or evidences
of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings
or other legally permitted sources of the Corporation
or dividends payable in Common Stock, but including
any distribution of securities or other property
pursuant to the Rights Agreement) or rights or
warrants to subscribe for or purchase any of its
securities including any rights issued at any time
under the Rights Agreement (any of the foregoing being
hereinafter in this subparagraph (b) called the
"Securities"), then, in each such case, the
Corporation shall make appropriate provisions to
reserve an adequate amount of such Securities for
distribution to the holders of the shares of Series B
Preferred Stock upon the conversion of the shares of
Series B Preferred Stock so that any such holder
converting shares of Series B Preferred Stock will
receive upon such conversion, in addition to the
shares of Common Stock to which such holder is
entitled, the amount and kind of such Securities that
such holder would have received if such holder had,
immediately prior to the record date for the
distribution of the Securities or the event that
required the distribution of the Securities, as the
case may be, converted its shares of Series B
Preferred Stock into Common Stock.
(c)
Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall prepare and retain at
its principal office a certificate, signed by the
Chairman of the Board, any Vice Chairman, the
President, any Senior Vice President or any Vice
President of the Corporation, setting forth the
Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such
adjustment; provided, however, that the failure of the
Corporation to prepare and retain such officer's
certificate shall not invalidate any corporate action
by the Corporation.
(6) Whenever the Conversion Price is adjusted as
provided in subparagraph (c) of Section (g)(5), the
Corporation shall cause to be mailed to each holder of
shares of Series B Preferred Stock at his then registered
address by first-class mail, postage prepaid, a notice of
such adjustment of the Conversion Price setting forth such
adjusted Conversion Price and the effective date of such
adjusted Conversion Price; provided, however, that the
failure of the Corporation to give such notice shall not
invalidate any corporate action by the Corporation.
(7) The Corporation covenants that it will at all
times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued
shares of Common Stock, for the purpose of effecting
conversions of shares of Series B Preferred Stock, the full
number of shares of Common Stock deliverable upon the
conversion of all outstanding shares of Series B Preferred
Stock not theretofore converted. For purposes of this
Section (g)(7), the number of shares of Common Stock that
shall be deliverable upon the conversion of all outstanding
shares of Series B Preferred Stock shall be computed as if
at the time of computation all such outstanding shares were
held by a single holder.
(8) The Corporation will pay any and all
documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares of
Common Stock on conversions of shares of Series B Preferred
Stock pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may
be payable in respect of any transfer involved in the issue
or delivery of shares of Common Stock in a name other than
that of the holder of shares of Series B Preferred Stock to
be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or
delivery has paid to the Corporation the amount of any such
tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
(9) Notwithstanding any other provision herein to
the contrary, if any of the following events occur: (i)
any reclassification or change of outstanding shares of
Common 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 subdivision or combination of the Common
Stock), (ii) any consolidation, merger or combination of
the Corporation with or into another corporation or a
statutory share exchange as a result of which holders of
Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect
to or in exchange for such Common Stock, or (iii) any sale
or conveyance of all or substantially all the properties
and assets of the Corporation as, or substantially as, an
entirety to any other entity as a result of which holders
of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock, then
appropriate provision shall be made so that the holder of
each share of Series B Preferred Stock then outstanding
shall have the right to convert such share into the kind
and amount of shares of stock and other securities and
property or assets that would have been receivable upon
such reclassification, change, consolidation, merger,
combination, exchange, sale or conveyance by a holder of
the number of shares of Common Stock issuable upon
conversion of such share of Series B Preferred Stock
immediately prior to such reclassification, change,
consolidation, merger, combination, exchange, sale or
conveyance. If, in the case of any such consolidation,
merger, combination, exchange, sale or conveyance, the
stock or other securities and property receivable thereupon
by a holder of shares of Common Stock includes shares of
stock, securities or other property or assets (including
cash) of an entity other than the successor or acquiring
entity, as the case may be, in such consolidation, merger,
combination, exchange, sale or conveyance, then the
Corporation shall enter into an agreement with such other
entity for the benefit of the holders of Series B Preferred
Stock that shall contain such provisions to protect the
interests of such holders as the Board of Directors of the
Corporation shall reasonably consider necessary by reason
of the foregoing.
(10) Upon any conversion of any shares of
Series B Preferred Stock, the shares of Series B Preferred
Stock so converted shall have the status of authorized and
unissued shares of Preferred Stock, without designation as
to series, until such shares are once more designated as
part of a particular series by the Board of Directors of
the Corporation.
(h) Mandatory Conversion. Except as provided in
Section (g)(2), each share of Series B Preferred Stock
shall be converted automatically into the number of shares
of Common Stock determined as provided in Section (g)(1)
immediately upon the conversion of shares of Series B
Preferred Stock pursuant to such Section.
(i) Ranking. The Series B Preferred Stock shall rank
on a parity with all other series of Preferred Stock as to
the payment of dividends and the distribution of assets
upon liquidation.
(j) Series B Director. (1) So long as any share of
Series B Preferred Stock remains outstanding, the Series B
Preferred Stock, voting as a separate voting group, shall
be entitled to elect one member of the Board of Directors
of the Corporation. Such director (the "Series B
Director") shall be in addition to the number of Directors
of the Corporation otherwise prescribed by the Articles of
Incorporation or bylaws. Such voting right of the holders
of Series B Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (2) of this
Section 6(j) or at any annual meeting of shareholders, and
thereafter at annual meetings of shareholders, (or by
unanimous written consent in lieu of any such meeting)
provided that such voting right at any such meeting may not
be exercised unless the holders of ten percent (10%) in
number of shares of Series B Preferred Stock outstanding
shall be present in person or by proxy. The absence of a
quorum of the holders of Common Stock at any such meeting
shall not affect the exercise by the holders of Series B
Preferred Stock of such voting right.
(2) Unless the holders of Series B Preferred
Stock shall have previously exercised their right to elect
the Series B Director, the Board of Directors may order, or
any holder or holders owning in the aggregate not less than
ten percent (10%) of the total number of shares of Series B
Preferred Stock outstanding, may request, the calling of a
special meeting of the holders of Series B Preferred Stock
for the purpose of electing the Series B Director, which
meeting shall thereupon be called by the Chairman,
President, a Vice-President or the Secretary of the
Corporation. Notice of such meeting and of any annual
meeting at which holders of Preferred Stock are entitled to
vote pursuant to this Section 6(j) shall be given to each
holder of record of Series B Preferred Stock by mailing a
copy of such notice to him at his last address as the same
appears on the books of the Corporation. Such meeting
shall be called for a time not earlier than 10 days and not
later than 60 days after such order or request. In the
event such meeting is not called within 60 days after such
order or request, such meeting may be called on similar
notice by any holder or holders owning in the aggregate not
less than ten percent (10%) of the total number of shares
of Series B Preferred Stock outstanding. Notwithstanding
the provisions of this 6(j), no such special meeting shall
be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the
holders.
Immediately upon the retirement (whether upon
redemption, conversion or otherwise), of all outstanding
shares of the Series B Preferred Stock, (x) the right of
the holders of Preferred Stock, as a separate voting group,
to elect a Director shall cease, (y) the term of the Series
B Director shall terminate, and (z) the number of Directors
shall be such number as may then be provided for in, or
pursuant to, the Articles of Incorporation or bylaws.
(k) Amendment. The Articles of Incorporation shall
not be further amended in any manner that would (i) amend
this Section 6 or (ii) adversely affect the preferences,
rights or powers of Series B Preferred Stock without the
affirmative vote of the holders of a majority of the
outstanding shares of Series B Preferred Stock, if any,
voting separately as one voting group.
PART B.
COMMON STOCK.
1. Voting Rights. The holders of Common Stock shall to
the exclusion of the holders of Cumulative Preferred Stock have the sole
and full power to vote for the election of directors and for all other
purposes without limitation except only as otherwise provided under the
applicable sections of these Articles of Incorporation or by any applicable
provision of law.
2. Dividends. Dividends may be declared and paid and
distributions may be made on the Common Stock and shares of Common Stock
may be purchased or otherwise acquired for value out of any funds of the
Corporation legally available therefore without limit in any amount except
as provided in the sections of these Articles of Incorporation applicable
to cumulative preferred stock. The Corporation may hold or dispose of
shares so purchased from time to time for its corporate purposes or may
retire such shares as provided by law.
3. Distribution of Assets. The holders of the Common
Stock in the event of any dissolution, liquidation or winding up of the
affairs of the Corporation shall be entitled to receive all assets of the
Corporation remaining after satisfaction of the full preferential amounts
to which holders of the Cumulative Preferred Stock are entitled under the
provisions of these Articles of Incorporation, including rights conferred
by any articles of serial designation.
PART C.
PROVISIONS APPLICABLE TO ALL CLASSES OF STOCK.
1. Voting Rights. Each shareholder of record of shares
of any class shall be entitled in any meeting of shareholders in which such
shares are entitled to be voted to cast one (1) vote for each share of
stock so held by such shareholder as shown by the stock books of the
Corporation and may cast such vote in person or by proxy.
2. Certain Required Votes. Except as expressly otherwise
required by these Articles of Incorporation or by the Board of Directors
acting pursuant to Subsection C of Section 13.1-707 of the Virginia Stock
Corporation Act, the vote required to approve an amendment or restatement
of these Articles that requires shareholder approval, other than an
amendment or restatement that (i) amends or affects the shareholder vote
required by the Virginia Stock Corporation Act to approve a merger,
statutory share exchange, sale of all or substantially all of the
Corporation's assets or the dissolution of the Corporation or (ii) amends
or affects this Part C or Article IV of these Articles of Incorporation,
shall be a majority of the votes entitled to be cast by each voting group
that is entitled to vote on the matter.
3. Preemptive Rights. No holder of shares of stock of
the Corporation of any class shall have any preemptive right with respect
to shares of that class of stock or of any other class of stock of the
Corporation. Nothing contained herein shall, however, prevent the Board of
Directors in its discretion without any action by the shareholders in
connection with the issuance of any obligations or stock of the Corporation
to grant rights or options for the purchase of shares of the Corporation,
either preferred or common, or to provide for the conversion of shares of
one class of stock of the Corporation into shares of another class having
prior or superior rights and preferences as to dividends or distribution of
assets upon liquidation.
ARTICLE IV.
NUMBER OF DIRECTORS, TERM OF OFFICE AND CLASSIFICATION.
The Board of Directors shall consist of three (3) directors
or such greater number of directors as shall from time to time be fixed by
the bylaws of the Corporation provided that in the event the holders of
Cumulative Preferred Stock shall become entitled to and shall elect not to
exceed two (2) additional directors as provided in Article III, Part A,
Section 4 above, such director or directors shall be in addition to the
number of directors permitted and subsisting under this section and bylaws
adopted pursuant hereto.
Promptly after these restated Articles of Incorporation
shall become effective, the directors shall be divided into three (3)
classes, each class to be as nearly equal in number as possible. At the
first annual meeting after the effective date of these restated Articles of
Incorporation, the first class of directors shall be elected for a term of
one (1) year, the second class for a term of two (2) years and the third
class for a term of three (3) years. At each annual meeting after such
classification, the number of directors equal to the number of the class
whose term expires at the time of such meeting shall be elected to hold
office until the third succeeding annual meeting of the shareholders.
ARTICLE V.
LIMIT ON LIABILIBY AND INDEMNIFICATION
1. Definitions. For purposes of this Article V, the
following terms shall have the meanings indicated:
(a) "APPLICANT" means the person
seeking indemnification pursuant to this
Article V;
(b) "EXPENSES" includes counsel fees;
(c) "LIABILITY" means the obligation
to pay a judgment, settlement, penalty,
fine, including any excise tax assessed with
respect to an employee benefit plan, or
reasonable expenses incurred with respect to
a proceeding;
(d) "PARTY" includes an individual who
was, is, or is threatened to be made a named
defendant or respondent in a proceeding; and
(e) "PROCEEDING" means any threatened,
pending, or completed action, suit, or
proceeding, whether civil, criminal,
administrative or investigative and whether
formal or informal.
2. Limitation of Liability. In any proceeding brought by
a shareholder of the Corporation in the right of the Corporation or brought
by or on behalf of shareholders of the Corporation, no director or officer
of the Corporation shall be liable to the Corporation or its shareholders
for monetary damages with respect to any transaction, occurrence or course
of conduct, whether prior or subsequent to the effective date of this
Article V, except for liability resulting from such person's having engaged
in willful misconduct or a knowing violation of the criminal law or any
federal or state securities law.
3. Indemnification. The Corporation shall indemnify (i)
any person who was or is a party to any proceeding, including a proceeding
brought by a shareholder in the right of the Corporation or brought by or
on behalf of shareholders of the Corporation, by reason of the fact that he
is or was a director or officer of the Corporation, and (ii) any director
or officer who is or was serving at the request of the Corporation as a
director, trustee, partner or officer of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
any liability incurred by him in connection with such proceeding unless he
engaged in willful misconduct or a knowing violation of the criminal law.
A person is considered to be serving an employee benefit plan at the
Corporation's request if his duties to the Corporation also impose duties
on, or otherwise involve services by, him to the plan or to participants in
or beneficiaries of the plan. The Board of Directors is hereby empowered,
by a majority vote of a quorum of disinterested directors, to enter into a
contract to indemnify any director or officer in respect of any proceedings
arising from any act or omission, whether occurring before or after the
execution of such contract.
4. Application; Amendment. The provisions of this
Article shall be applicable to all proceedings commenced after the adoption
hereof by the shareholders of the Corporation, arising from any act or
omission, whether occurring before or after such adoption. No amendment or
repeal of this Article V shall have any effect on the rights provided under
this Article V with respect to any act or omission occurring prior to such
amendment or repeal. The Corporation shall promptly take all such actions,
and make all such determinations, as shall be necessary or appropriate to
comply with its obligation to make any indemnity under this Article V and
shall promptly pay or reimburse all reasonable expenses incurred by any
director or officer in connection with such actions and determinations or
proceedings of any kind arising therefrom.
5. Termination of Proceeding. The termination of any
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not of itself create a presumption
that the applicant did not meet the standard of conduct described in
section 2 or 3 of this Article V.
6. Determination of Availability. Any indemnification
under this Article V (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination
that indemnification of the applicant is proper in the circumstances
because he has met the applicable standard of conduct set forth in section
3 of this Article V.
The determination shall be made:
(a) By the Board of Directors by a majority vote
of a quorum consisting of Directors not at the time parties to the
proceeding;
(b) If a quorum cannot be obtained under
subsection (a) of this section, by a majority vote of a committee duly
designated by the Board of Directors (in which designation Directors who
are parties may participate), consisting solely of two or more directors
not at the time parties to the proceeding;
(c) By special legal counsel:
(i) Selected by the Board of Directors or its
committee in the manner prescribed in subsection (a) or (b) of this
section; or
(ii) If a quorum of the Board of Directors
cannot be obtained under subsection (a) of this section and a committee
cannot be designated under subsection (b) of this section, selected by
majority vote of the full Board of Directors, in which selection directors
who are parties may participate;
(d) By the shareholders, but shares owned by or
voted under the control of Directors who are at the time parties to the
proceeding may not be voted on the determination. Any evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is appropriate, except that if the
determination is made by special legal counsel, such evaluation as to
reasonableness of expenses shall be made by those entitled under subsection
(c) of this section 6 to select counsel. Notwithstanding the foregoing, in
the event there has been a change in the composition of a majority of the
Board of Directors after the date of the alleged act or omission with
respect to which indemnification is claimed, any determination as to
indemnification and advancement of expenses with respect to any claim for
indemnification made pursuant to this Article V shall be made by special
legal counsel agreed upon by the Board of Directors and the applicant. If
the Board of Directors and the applicant are unable to agree upon such
special legal counsel, the Board of Directors and the applicant each shall
select a nominee, and the nominees shall select such special legal counsel.
7. Advances. (a) The Corporation shall pay for or
reimburse the reasonable expenses incurred by any applicant who is a party
to a proceeding in advance of final disposition of the proceeding or the
making of any determination under section 3 of this Article V if the
applicant furnishes the Corporation:
(i) a written statement of his good faith
belief that he has met the standard of conduct described in section 3; and
(ii) a written undertaking, executed personally
or on his behalf, to repay the advance if it is ultimately determined that
he did not meet such standard of conduct.
(b) The undertaking required by paragraph (ii) of
subsection (a) of this section 7 shall be an unlimited general obligation
of the applicant but need not be secured and may be accepted without
reference to financial ability to make repayment.
(c) Authorizations of payments under this section
shall be made by the persons specified in section 6 of this Article V.
8. Indemnification of Others. The Board of Directors is
hereby empowered, by majority vote of a quorum consisting of disinterested
Directors, to cause the Corporation to indemnify or contract to indemnify
any person not specified in section 2 or 3 of this Article V who was or is
a party to any proceeding, by reason of the fact that he is or was an
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, to the same extent as if such person were specified as
one to whom indemnification is granted in section 3 of this Article V. The
provisions of sections 4 through 7 of this Article V shall be applicable to
any indemnification provided hereafter pursuant to this section 8.
9. Insurance. The Corporation may purchase and maintain
insurance to indemnify it against the whole or any portion of the liability
assumed by it in accordance with this Article V and may also procure
insurance, in such amounts as the Board of Directors may determine, on
behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
any liability asserted against or incurred by him in any such capacity or
arising from his status as such, whether or not the Corporation would have
power to indemnify him against such liability under the provisions of this
Article V.
10. Further Indemnity. Every reference herein to
directors, officers, employees or agents shall include former directors,
officers, employees and agents and their respective heirs, executors and
administrators. The indemnification hereby provided and provided hereafter
pursuant to the power conferred by this Article V on the Board of Directors
shall not be exclusive of any other rights to which any person may be
entitled, including any right under policies of insurance that may be
purchased and maintained by the Corporation or others, with respect to
claims, issues or matters in relation to which the Corporation would not
have the power to indemnify such person under the provisions of this
Article V. Such rights shall not prevent or restrict the power of the
Corporation to make or provide for any further indemnity, or provisions for
determining entitlement to indemnity, pursuant to one or more
indemnification agreements, bylaws, or other arrangements (including,
without limitation, creation of trust funds or security interests funded by
letters of credit or other means) approved by the Board of Directors
(whether or not any of the directors of the Corporation shall be a party to
or beneficiary of any such agreements, bylaws or arrangements); provided,
however, that any provision of such agreements, bylaws or other
arrangements shall not be effective if and to the extent that it is
determined to be contrary to this Article V or applicable laws of the
Commonwealth of Virginia.
11. Severability. Each provision of this Article V shall
be severable, and an adverse determination as to any such provision shall
in no way affect the validity of any other provision.