EXHIBIT 3.(i)
Articles of Incorporation
of Sun Company, Inc.
2/1/96
Articles of Incorporation of Sun Company, Inc.
First: The name of the Corporation is "Sun Company, Inc."
Second: The location and post office address of its registered office in
this Commonwealth is 1801 Market Street, Philadelphia, Pennsylvania 19103.
Third: The Corporation shall have unlimited power to engage in and to do
any lawful act concerning any or all lawful business for which corporations may
be incorporated under the provisions of the Act of May 5, 1933 (P.L. 364, as
amended). The Corporation is incorporated under the provisions of said Act.
Fourth: The total number of shares of capital stock which this Corporation
shall have authority to issue is Two Hundred Fifteen Million (215,000,000) to be
divided into two classes consisting of Fifteen Million (15,000,000) shares
designated as "Cumulative Preference Stock" (hereinafter called "Preference
Stock"), without par value, and Two Hundred Million (200,000,000) shares
designated as "Common Stock," (hereinafter called "Common Stock"), $1 par value.
The following is a description of each class of capital stock and a
statement of the preferences, qualifications, privileges, limitations,
restrictions, and other special or relative rights granted to or imposed upon
the shares of each class:
Preference Stock
1. Authority of Board of Directors. Authority is hereby vested in the Board
of Directors, by resolution, to divide any or all of the authorized shares of
Preference Stock into series and, within the limitations provided by law and
this Article Fourth, to fix and determine the designations, preferences,
qualifications, privileges, limitations, options, conversion rights, and other
special rights of each such series, including but not limited to the right to
fix and determine:
(a) the designation of and the number of shares issuable in each such
series;
(b) the annual dividend rate, expressed in a dollar amount per share, for
each such series;
(c) the right, if any, of the Corporation to redeem shares of any such
series, and the terms and conditions on which shares of each such series may be
redeemed;
(d) the amounts payable upon shares of each such series in the event of the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(e) the sinking fund provisions, if any, for the redemption or purchase of
shares of each such series;
(f) the voting rights, if any, for the shares of each such series;
provided, however, that the number of votes per share of Preference Stock shall
in no event exceed one (1);
(g) the terms and conditions, if any, on which shares of each such series
may be converted into shares of stock of this Corporation; provided, however,
that shares of Preference Stock shall not be convertible into shares of any
class of stock of the Corporation other than Common Stock and shall not be
convertible
into more than one share of Common Stock, or such greater or lesser number as
will reflect the effect of stock dividends, stock splits or stock combinations
affecting Common Stock and occurring after May 9, 1980, subject to such terms
and conditions, including provision for fractional shares, as the Board of
Directors shall authorize;
(h) the stated value per share for each such series; and
(i) any and all such other provisions as may be fixed or determined by the
Board of Directors of the Corporation pursuant to Pennsylvania law.
2. Parity of Series of Preference Stock and Shares Within Series; Priority
of Preference Stock. All shares of the same series of Preference Stock shall be
identical with each other share of such series in all respects, except that
shares of any one series issued at different times may differ as to the dates
from which dividends thereon shall be cumulative. Except as determined by the
Board of Directors as permitted by the provisions of paragraph 1 hereof, all
series of Preference Stock shall rank equally with and be identical in all
respects to each other series.
Preference Stock shall rank, as to dividends and upon liquidation,
dissolution or winding up, prior to Common Stock and to any other capital stock
of the Corporation hereafter authorized, other than capital stock which shall by
its terms rank prior to or on a parity with Preference Stock and which shall be
authorized pursuant to subparagraph 9(a) hereof.
3. Dividends. Before any dividends (other than dividends payable in stock
ranking junior to Preference Stock) on any class or classes of stock of the
Corporation ranking junior to Preference Stock as to dividends or upon
liquidation shall be declared and set apart for payment or paid, the holders of
shares of Preference Stock of each series shall be entitled to receive cash
dividends, when and as declared by the Board of Directors at the annual rate,
and no more, fixed in the resolution adopted by the Board of Directors providing
for the issue of such series. Such dividends shall be payable in cash quarterly,
each such quarterly payment to be in respect of the quarterly period ending with
the day next preceding the date of such payment (except in the case of the first
dividend which shall be in respect of the period beginning with the initial date
of issue of such shares and ending with the day next preceding the date of such
payment), to holders of Preference Stock of record on the respective dates, not
exceeding forty (40) days preceding such quarterly dividend payment dates, fixed
for that purpose by the Board of Directors. With respect to each series of
Preference Stock, such dividends shall be cumulative from the date or dates of
issue of such series, which date or dates may be set by the Board of Directors
pursuant to the provisions of paragraph 1 hereof. No dividends shall be declared
or paid or set apart for payment on any series of Preference Stock in respect of
any quarterly dividend period unless there shall likewise be or have been
declared and paid or set apart for payment on all shares of Preference Stock of
each other series at the time outstanding like dividends in proportion
to the respective annual dividend rates fixed therefor as hereinbefore provided
for all quarterly dividend periods coinciding with or ending before such
quarterly dividend period. Accruals of dividends shall not bear interest.
4. Redemption. The Corporation, at the option of the Board of Directors,
may, at any time permitted by the resolution adopted by the Board of Directors
providing for the issue of any series of Preference Stock and at the redemption
price or prices stated in said resolution, redeem the whole or any part of the
shares of such series at the time outstanding. If at any time less than all of
the shares of Preference Stock then outstanding are to be called for redemption,
the shares to be redeemed may be selected by lot or by such other equitable
method as the Board of Directors in its discretion may determine. Notice of
every redemption, stating the redemption date, the redemption price, and the
placement of payment thereof, shall be given by mailing a copy of such notice at
least thirty (30) days and not more than sixty (60) days prior to the date fixed
for redemption to the holders of record of the shares of Preference Stock to be
redeemed at their addresses as the same shall appear on the books of the
Corporation. The Corporation, upon mailing notice of redemption as aforesaid or
upon irrevocably authorizing the bank or trust company hereinafter mentioned to
mail such notice, may deposit or cause to be deposited in trust with a bank or
trust company in the City of Philadelphia, Commonwealth of Pennsylvania, or in
the Borough of Manhattan, City and State of New York, an amount equal to the
redemption price of the shares to be redeemed plus any accrued and unpaid
dividends thereon, which amount shall be payable to the holders of the shares to
be redeemed upon surrender of certificates therefor on or after the date fixed
for redemption or prior thereto if so directed by the Board of Directors. Upon
such deposit, or if no such deposit is made, then from and after the date fixed
for redemption unless the Board of Directors shall default in making payment of
the redemption price plus accrued and unpaid dividends upon surrender of
certificates as aforesaid, the shares called for redemption shall cease to be
outstanding and the holders thereof shall cease to be stockholders with respect
to such shares and shall have no interest in or claim against the Corporation
with respect to such shares other than the right to receive the redemption price
plus accrued and unpaid dividends from such bank or trust company or from the
Corporation, as the case may be, without interest thereon, upon surrender of
certificates as aforesaid; provided, that conversion rights, if any, of shares
called for redemption shall terminate at the close of business on the business
day prior to the date fixed for redemption. Any funds so deposited which shall
not be required for such redemption because of the exercise of conversion rights
subsequent to the date of such deposit shall be returned to the Corporation. In
case any holder of shares of Preference Stock which have been called for
redemption shall not, within six (6) years after the date of such deposit, have
claimed the amount deposited with respect to the redemption thereof, such bank
or trust company, upon demand, shall pay over to the Corporation such unclaimed
amount and shall
thereupon be relieved of all responsibility in respect thereof to such holder,
and thereafter such holder shall look only to the Corporation for payment
thereof. Any interest which may accrue on funds so deposited shall be paid to
the Corporation from time to time.
5. Status of Shares of Preference Stock Redeemed or Acquired. Unless
otherwise specifically provided in the resolutions of the Board of Directors
authorizing the issue of any series of Preference Stock, shares of any series of
Preference Stock which have been redeemed, purchased or acquired by the
Corporation by means other than conversion (whether through the operation of a
sinking fund or otherwise) shall have the status of authorized and unissued
shares of Preference Stock and may be reissued as a part of the series of which
they were originally a part or may be reclassified and reissued as part of a new
series of Preference Stock to be created by resolution of the Board of Directors
or as part of any other series of Preference Stock. Shares of any series of
Preference Stock converted shall not be reissued and the Board of Directors
shall take appropriate actions to reflect the conversion of Preference Stock
from time to time by effecting reductions in the number of shares of Preference
Stock which the Corporation is authorized to issue.
6. Redemption or Acquisition of Preference Stock During Default in Payment
of Dividends. If at any time the Corporation shall have failed to pay dividends
in full on Preference Stock, thereafter and until dividends in full including
all accrued and unpaid dividends on shares of all series of Preference Stock at
the time outstanding, shall have been declared and set apart for payment or
paid, (i) the Corporation, without the affirmative vote or consent of the
holders of at least a majority of the shares of Preference Stock at the time
outstanding, voting or consenting separately as a class without regard to
series, given in person or by proxy, either in writing or by resolution adopted
at a meeting, shall not redeem less than all the shares of Preference Stock at
such time outstanding, regardless of series, other than in accordance with
paragraph 8 hereof and (ii) neither the Corporation nor any subsidiary shall
purchase any shares of Preference Stock except in accordance with a purchase
offer made in writing or by publication, as determined by the Board of
Directors, in their sole discretion after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series, shall determine (which determination shall be final and conclusive) will
result in fair and equitable treatment among the respective series; provided,
however, that (iii) unless prohibited by the provisions applicable to any
series, the Corporation, to meet the requirements of any sinking fund provision
with respect to any series, may use shares of such series acquired by it prior
to such failure and then held by it as treasury stock, and (iv) nothing shall
prevent the Corporation from completing the
purchase or redemption of shares of Preference Stock for which a purchase
contract was entered into for any sinking fund purposes or the notice of
redemption of which was mailed to the holders thereof, prior to such default.
7. Dividends and Distributions on and Redemption and Acquisition of Junior
Classes of Stock. So long as any shares of Preference Stock are outstanding, the
Corporation shall not declare or set apart for payment or pay any dividends
(other than stock dividends payable on shares of stock ranking junior to
Preference Stock) or make any distribution on any other class or classes of
stock of the Corporation ranking junior to Preference Stock as to dividends or
upon liquidation and shall not redeem, purchase or otherwise acquire, or permit
any subsidiary to purchase or otherwise acquire, any shares of any such junior
class if at the time of making such declaration, payment, distribution,
redemption, purchase or acquisition the Corporation shall be in default with
respect to any dividend payable on, or any obligation to purchase, shares of any
series of Preference Stock; provided, however, 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 sale of, other shares of stock of any junior class.
8. Retirement of Shares. If in any case the amounts payable with respect to
any obligations to retire shares of Preference Stock are not paid in full in the
case of all series with respect to which such obligations exist, the number of
shares of the various series to be retired shall be in proportion to the
respective amounts which would be payable on account of such obligations if all
amounts payable were discharged in full.
9. Action by Corporation Requiring Approval of Preference Stock. The
Corporation shall not, without the affirmative vote or consent of the holders of
at least 66 2/3% of the number of shares of Preference Stock at the time
outstanding, voting or consenting (as the case may be) separately as a class
without regard to series, given in person or by proxy, either in writing or by
resolution adopted at a meeting:
(a) create any class of stock ranking prior to or on a parity with
Preference Stock as to dividends or upon liquidation or increase the authorized
number of shares of any such previously authorized class of stock;
(b) alter or change any of the provisions hereof so as adversely to affect
the preferences, special rights or powers given to the Preference Stock;
(c) increase the number of shares of Preference Stock which the Corporation
is authorized to issue; or
(d) alter or change any of the provisions hereof or of the resolution
adopted by the Board of Directors providing for the issue of such series so as
adversely to affect the preferences, special rights or powers given to such
series.
10. Special Voting Rights. If the Corporation shall have failed to pay, or
declare and set apart for payment, dividends on Preference Stock in an aggregate
amount equivalent to six (6) full quarterly dividends on all shares of
Preference Stock at the time outstanding, the number of Directors of the
Corporation shall be increased by two (2) at the first annual meeting of the
shareholders of the Corporation held thereafter, and at such meeting and at each
subsequent annual meeting until dividends payable for all past quarterly
dividend periods on all outstanding shares of Preference Stock shall have been
paid, or declared and set apart for payment, in full, the holders of the shares
of Preference Stock shall have, in addition to any other voting rights which
they otherwise may have, the exclusive and special right, voting separately as a
class without regard to series, each share of Preference Stock entitling the
holder thereof to one (1) vote per share, to elect two (2) additional members of
the Board of Directors to hold office for a term of one (1) year; provided, that
the right to vote as a class upon the election of such two (2) additional
Directors shall not limit the right of holders of any series of Preference Stock
to vote upon the election of all other Directors and upon other matters if and
to the extent that such holders are entitled to vote pursuant to the resolution
adopted by the Board of Directors pursuant to paragraph 1 hereof, providing for
the issue of such series. Upon such payment, or declaration and setting apart
for payment, in full, the terms of the two (2) additional Directors so elected
shall forthwith terminate, and the number of Directors of the Corporation shall
be reduced by two (2) and such voting right of the holders of shares of
Preference Stock shall cease, subject to increase in the number of Directors as
aforesaid and to revesting of such voting right in the event of each and every
additional failure in the payment of dividends in an aggregate amount equivalent
to six (6) full quarterly dividends as aforesaid.
11. Liquidation of the Corporation. Upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, Preference Stock
shall be preferred as to assets over Common Stock and any other class or classes
of stock ranking junior to Preference Stock so that the holders of shares of
Preference Stock of each series shall be entitled to be paid or to have set
apart for payment, before any distribution is made to the holders of Common
Stock and any other class or classes of stock ranking junior to Preference
Stock, the amount fixed in accordance with paragraph 1 hereof plus an amount
equal to all dividends accrued and unpaid up to and including the date fixed for
such payment and the holders of Preference Stock shall not be entitled to any
other payment.
If upon any such liquidation, dissolution or winding up of the Corporation,
its net assets shall be insufficient to permit the payment in full of the
respective amounts to which the holders of all outstanding shares of Preference
Stock are entitled as above provided, the entire remaining net assets of the
Corporation shall be distributed among the holders of Preference Stock in
amounts proportionate to the full preferential amounts to which they are
respectively entitled.
For the purposes of this paragraph 11, the voluntary sale, lease, exchange
or transfer for cash, shares of stock (securities or other consideration) of all
or substantially all the Corporation's property or assets to, or its
consolidation or merger with, one or more corporations shall not be deemed to be
a voluntary or involuntary liquidation, dissolution or winding up of the
Corporation.
12. Voting Rights. Except as otherwise provided by the provisions of this
Article Fourth or by statute or when fixed in accordance with the provisions of
paragraph 1 hereof, the holders of shares of Preference Stock shall not be
entitled to any voting rights.
13. Definitions. For the purposes of this Article Fourth and of any
resolution of the Board of Directors providing for the issue of any series of
Preference Stock or of any statement filed with the Secretary of State of the
Commonwealth of Pennsylvania (unless otherwise provided in any such resolution
or statement):
(a) The term "outstanding," when used in reference to shares of stock,
shall mean issued shares excluding:
(i) shares held by the Corporation or a subsidiary; and
(ii) shares called for redemption if funds for the redemption thereof
have been deposited in trust.
(b) Any class or classes of stock of the Corporation shall be deemed to
rank:
(i) prior to Preference Stock, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the holders of
Preference Stock;
(ii) on a parity with Preference Stock, either as to dividends or upon
liquidation, whether or not the dividend rates or dividend payment dates or the
redemption or liquidation prices per share thereof be different from those of
Preference Stock, if the holders of such class or classes shall be entitled to
the receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in proportion to their respective
dividend rates or liquidation prices, without preference or priority one (1)
over the other as between the holders of such class or classes and the holders
of Preference Stock; and
(iii) junior to Preference Stock, either as to dividends or upon
liquidation, if the rights of the holders of such class or classes shall be
subject or subordinate to the rights of the holders of Preference Stock in
respect of the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be.
(c) The term "subsidiary" as used herein shall mean any corporation 51% or
more of the outstanding stock having voting rights of which is at the time owned
or controlled directly or indirectly by the Corporation.
SERIES A CUMULATIVE PREFERENCE STOCK
1. Designation. The designation of the series of Preference Stock
authorized by this resolution shall be Series A Cumulative Preference Stock (the
"Series A Preference Stock") consisting of 12,500,000 shares.
2. Rank. The Series A Preference Stock shall rank, as to dividends and upon
liquidation, dissolution or winding up, prior to the Common Stock and to any
other capital stock of the Corporation hereafter authorized, other than capital
stock which shall by its terms rank prior to or on a parity with the Series A
Preference Stock and which shall be authorized pursuant to paragraph 6(d)
hereof. Any class or classes of stock of the Corporation shall be deemed to
rank:
(i) prior to Series A Preference Stock, either as to dividends or
upon liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of Series A Preference Stock;
(ii) on a parity with Series A Preference Stock, either as to
dividends or upon liquidation, whether or not the dividend rates or
dividend payment dates or the redemption or liquidation prices per share
thereof be different from those of Series A Preference Stock, if the
holders of such class or classes shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority one (1) over
the other as between the holder of such class or classes and the holders of
Series A Preference Stock ("Parity Stock"); and
(iii) junior to Series A Preference Stock, either as to dividends
or upon liquidation, if the rights of the holders of such class or classes
shall be subject or subordinate to the rights of the holders of Series A
Preference Stock in respect of the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be ("Junior Stock").
3. Dividends.
(a) The holders of outstanding shares of the Series A Preference Stock
shall be entitled to receive, when and as declared by the Board of Directors,
cash dividends accruing at the per share rate of $3.60 per annum (the "Dividend
Rate") and no more, payable in cash quarterly, each such quarterly payment to be
in respect of the quarterly period ending with the day next preceding the date
of such payment (except in the case of the first dividend which shall be in
respect of the period beginning with June 12, 1995 and ending with the day next
preceding the
date of such payment), to holders of Series A Preference Stock of record on the
respective dates, not exceeding forty (40) days preceding such quarterly
dividend payment dates, fixed for that purpose by the Board of Directors. Such
dividends shall be cumulative from June 12, 1995 and shall accrue daily.
Accruals of dividends shall not bear interest. Dividends will be payable on or
before each March 13, June 13, September 13 and December 13 (or, if any such day
is not a business day, on the next succeeding business day).
(b) Before any dividends (other than dividends payable in Junior Stock)
on any class or classes of stock of the Corporation ranking junior to Series A
Preference Stock as to dividends or upon liquidation shall be declared and set
apart for payments or paid, the holders of shares of Series A Preference Stock
shall be entitled to receive cash dividends, when and as declared by the Board
of Directors at the Dividend Rate, and no more. No dividends shall be declared
or paid or set apart for payment on the Series A Preference Stock in respect of
any quarterly dividend period unless there shall likewise be or have been
declared and paid or set apart for payment on all shares of Preference Stock of
each other series at the time outstanding like dividends in proportion to the
respective annual dividend rates fixed therefor for all quarterly dividend
periods coinciding with or ending before such quarterly dividend period.
(c) So long as any shares of Series A Preference Stock are outstanding,
the Corporation shall not declare or set apart for payment or pay any dividends
(other than stock dividends payable on shares of Junior Stock) or make any
distribution on any other class or classes of stock of the Corporation ranking
junior to Series A Preference Stock as to dividends or upon liquidation and
shall not redeem, purchase or otherwise acquire, or permit any subsidiary to
purchase or otherwise acquire, any shares of any such Junior Stock if at the
time of making such declaration, payment, distribution, redemption, purchase or
acquisition the Corporation shall be in default with respect to any dividend
payable on, or any obligation to purchase, shares of Series A Preference Stock;
provided, however, that, notwithstanding the foregoing, the Corporation may at
any time redeem, purchase or otherwise acquire shares of stock of any such
Junior Stock in exchange for, or out of the net cash proceeds from the sale of,
other shares of stock of any Junior Stock.
4. Redemptions.
(a) Right to Call for Redemption. At any time and from time to time,
the Corporation shall have the right to call, in whole or in part, the
outstanding shares of the Series A Preference Stock for redemption, subject to
the notice provisions set forth in paragraph (4)(h). On the redemption date (the
"Redemption Date") with respect to any such redemption, the
Corporation shall deliver to the holders thereof, in exchange for each such
share called for redemption, the following consideration:
(1) in the event such Redemption Date is prior to June 12, 1998 (the
"Specified Date"),
(i) a number of shares of Common Stock equal to the Call Price
(as defined in paragraph (4)(g)(ii)) in effect on the Redemption
Date divided by the Current Market Price of the Common Stock
determined as of the second Trading Date immediately preceding the
Notice Date, plus
(ii) an amount in cash equal to all accrued and unpaid
dividends on such share of Series A Preference Stock to and
including the Redemption Date, whether or not declared, out of
funds legally available therefor (and dividends shall cease to
accrue on such share as of such Redemption Date); and
(2) in the event such Redemption Date is on or after the Specified
Date,
(i) shares of Common Stock at the Common Equivalent Rate
(determined as provided in this paragraph (4)) in effect on the
Redemption Date; plus
(ii) an amount in cash equal to all accrued and unpaid
dividends on such share of Series A Preference Stock to and
including the Redemption Date, whether or not declared, out of
funds legally available for the payment of dividends (and dividends
shall cease to accrue on such share as of such Redemption Date).
If at any time less than all of the shares of Series A Preference Stock then
outstanding are to be called for redemption, the shares to be redeemed may be
selected by lot or such other equitable method as the Board of Directors of the
Corporation in its discretion may determine.
(b) Redemption or Acquisition of Series A Preference Stock During
Default in Payment of Dividends. If at any time the Corporation shall have
failed to pay dividends in full on Preference Stock, thereafter and until
dividends in full including all accrued and unpaid dividends on shares of all
series of Preference Stock at the time outstanding, shall have been declared and
set apart for payment or paid, (i) the Corporation, without the affirmative vote
or consent of the holders of at least a majority of the shares of Preference
Stock at the time outstanding, voting or consenting separately as a class
without regard to series, given in person or by proxy,
either in writing or by resolution adopted at a meeting, shall not redeem less
than all the shares of Preference Stock at such time outstanding, regardless of
series, other than in accordance with paragraph 4(f) hereof and (ii) neither the
Corporation nor any subsidiary shall purchase any shares of Preference Stock
except in accordance with a purchase offer made in writing or by publication, as
determined by the Board of Directors, in their sole discretion after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series, shall determine (which determination
shall be final and conclusive) will result in fair and equitable treatment among
the respective series; provided, however, that (iii) unless prohibited by the
provisions applicable to any series, the Corporation, to meet the requirements
of any sinking fund provision with respect to any series, may use shares of such
series acquired by it prior to such failure and then held by it as treasury
stock, and (iv) nothing shall prevent the Corporation from completing the
purchase or redemption of shares of Preference Stock for which a purchase
contract was entered into for any sinking fund purposes or the notice of
redemption of which was mailed to the holders thereof, prior to such default.
(c) Common Equivalent Rate; Adjustments.
The Common Equivalent Rate to be used to determine the number of shares of
Common Stock to be delivered on the redemption of the Series A Preference Stock
in exchange for shares of Common Stock pursuant to paragraph (4)(a)(2) (a
"Specified Redemption") shall be initially two shares of Common Stock for each
share of Series A Preference Stock; provided, however, that such Common
Equivalent Rate shall be subject to adjustment from time to time as provided
below in this paragraph (4)(c). All adjustments to the Common Equivalent Rate
shall be calculated to the nearest 1/100th of a share of Common Stock. Such rate
as adjusted and in effect at any time is herein called the "Common Equivalent
Rate."
(i) If the Corporation shall do any of the following (an
"Adjustment Event"):
(A) pay a dividend or make a distribution with respect to Common
Stock in shares of Common Stock,
(B) subdivide, reclassify or split its outstanding shares of Common
Stock into a greater number of shares,
(C) combine or reclassify its outstanding shares of Common Stock
into a smaller number of shares, or
(D) issue by reclassification of its shares of Common Stock any
shares of Common Stock other than in a Fundamental Transaction (as
defined in paragraph 4(g)(iv)),
then the Common Equivalent Rate in effect immediately prior to such
Adjustment Event shall be adjusted so that the holder of a share of the
Series A Preference Stock shall be
entitled to receive on the redemption of such share of the Series A
Preference Stock, the number of shares of Common Stock that such holder
would have owned or been entitled to receive after the happening of the
Adjustment Event had such share of the Series A Preference Stock been
redeemed pursuant to paragraph 4(a) immediately prior to the record date
for such Adjustment Event, if any, or such Adjustment Event. Where the
Adjustment Event is a dividend or distribution, the adjustment to the
Common Equivalent Rate shall become effective as of the close of business
on the record date for determination of stockholders entitled to receive
such dividend or distribution; where the Adjustment Event is a subdivision,
split, combination or reclassification, the adjustment to the Common
Equivalent Rate shall become effective immediately after the effective date
of such subdivision, split, combination or reclassification; and any shares
of Common Stock issuable in payment of a dividend shall be deemed to have
been issued immediately prior to the close of business on the record date
for such dividend for purposes of calculating the number of outstanding
shares of Common Stock under clauses (ii) and (iii) below. Such adjustment
shall be made successively.
(ii) If the Corporation shall, after the date hereof, issue rights
or warrants to all holders of its Common Stock entitling them (for a period
not exceeding 45 days from the date of such issuance) to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price of the Common Stock (determined pursuant to paragraph
(4)(c)(v)), on the record date for the determination of stockholders
entitled to receive such rights or warrants, then in each case the Common
Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate
in effect immediately prior to the date of issuance of such rights or
warrants by a fraction (A) the numerator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus the number of
additional shares of Common Stock offered for subscription or purchase
pursuant to such rights or warrants, and (B) the denominator of which shall
be the number of shares of Common Stock outstanding on the date of issuance
of such rights or warrants, immediately prior to such issuance, plus the
number of shares of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so offered for subscription or
purchase pursuant to such rights or warrants would purchase at such Current
Market Price (determined by multiplying such total number of shares by the
exercise price of such rights or warrants and dividing the product so
obtained by such Current Market Price). Such adjustment shall become
effective as of the close of business on the record date for the
determination of stockholders entitled to receive such rights or warrants.
To the extent that shares of Common Stock are not delivered after the
expiration of such rights
or warrants, the Common Equivalent Rate shall be readjusted to the Common
Equivalent Rate which would then be in effect had the adjustments made upon
the issuance of such rights or warrants been made upon the basis of
delivery of only the number of shares of Common Stock actually delivered.
Such adjustment shall be made successively.
(iii) If the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock of evidences of its
indebtedness or other assets (including shares of capital stock of the
Corporation (other than Common Stock) but excluding any distributions and
dividends referred to in clause (i) above or any cash dividends), or shall
issue to all holders of its Common Stock rights or warrants to subscribe
for or purchase any of its securities (other than those referred to in
clause (ii) above), then in each such case, the Common Equivalent Rate
shall be adjusted by multiplying the Common Equivalent Rate in effect on
the record date mentioned below by a fraction (A) the numerator of which
shall be the Current Market Price of the Common Stock (determined pursuant
to paragraph (4)(c)(v)) on the record date for the determination of
stockholders entitled to receive such dividend or distribution, and (B) the
denominator of which shall be such Current Market Price per share of Common
Stock less the fair market value (as determined by the Board of Directors
of the Corporation, whose determination shall be conclusive) as of such
record date of the portion of the assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants, applicable to one
share of Common Stock. Such adjustment shall become effective on the
opening of business on the business day next following the record date for
the determination of stockholders entitled to receive such dividend or
distribution.
(iv) Anything in this paragraph (4) notwithstanding, the
Corporation shall be entitled to make such upward adjustment in the Common
Equivalent Rate, in addition to those required by this paragraph (4), as
the Corporation in its sole discretion may determine to be advisable, in
order that any stock dividends, subdivision of shares, distribution of
rights to purchase stock or securities, or a distribution of securities
convertible into or exchangeable for stock (or any transaction that could
be treated as any of the foregoing transactions pursuant to Section 305 of
the Internal Revenue Code of 1986, as amended) hereafter made by the
Corporation to its stockholders shall not be taxable. If the Corporation
determines that an adjustment to the Common Equivalent Rate should be made
pursuant to this paragraph (4)(c)(iv), such adjustment shall be made
effective as of such date as the Board of Directors of the Corporation
determines. The determination of the Board of Directors of the Corporation
as to whether an adjustment to the Common Equivalent Rate
should be made pursuant to the foregoing provisions of this paragraph
(4)(c)(iv), and, if so, as to what adjustment should be made and when,
shall be conclusive, final and binding on the Corporation and all
stockholders of the Corporation.
(v) As used in this paragraph (4), the "Current Market Price" of a
share of Common Stock on any date shall be, except as otherwise
specifically provided, the average of the daily Closing Prices (as defined
in paragraph (4)(g)(iii)) for the five consecutive Trading Dates ending on
and including the date of determination of the Current Market Price;
provided that if the Closing Price of the Common Stock on the Trading Date
next following such five-day period (the "next-day closing price") is less
than 95% of such average Closing Price, then the Current Market Price per
share of Common Stock on such date of determination will be the next-day
closing price; provided, further, that, with respect to any redemption or
antidilution adjustment, if any event that results in an adjustment of the
Common Equivalent Rate occurs during the period beginning on the first day
of the applicable determination period and ending on the applicable
redemption date, the Current Market Price as determined pursuant to the
foregoing will be appropriately adjusted to reflect the occurrence of such
event.
(vi) In any case in which paragraph (4)(c) shall require that an
adjustment as a result of any event become effective as of the close of
business on the record date and the date fixed for Specified Redemption
pursuant to paragraph (4)(a)(2) occurs after such record date, but before
the occurrence of such event, the Corporation may in its sole discretion
elect to defer the following until after the occurrence of such event: (A)
issuing to the holder of any redeemed shares of the Series A Preference
Stock the additional shares of Common Stock issuable upon such redemption
as a result of such adjustment and (B) paying to such holder any amount in
cash in lieu of a fractional share of Common Stock pursuant to paragraph
(4)(e).
(vii) Before taking any action which would cause an adjustment to
the Common Equivalent Rate that would cause the Corporation to issue shares
of Common Stock for consideration below the then par value (if any) of the
Common Stock upon redemption of the Series A Preference Stock, the
Corporation will take any corporate action that may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of such Common Stock at such
adjusted Common Equivalent Rate.
(d) Notice of Adjustments. Whenever the Common Equivalent Rate is
adjusted as herein provided, the Corporation shall:
(i) forthwith compute the adjusted Common Equivalent Rate in
accordance with this paragraph (4) and prepare a certificate signed by the
Chief Executive Officer, the Chief Financial Officer, any Vice President,
or the Treasurer of the Corporation setting forth the adjusted Common
Equivalent Rate, the method of calculation thereof in reasonable detail and
the facts requiring such adjustment and upon which such adjustment is
based, which certificate shall be conclusive, final and binding evidence of
the correctness of the adjustment, and file such certificate forthwith with
the transfer agent or agents for the Series A Preference Stock and the
Common Stock; and
(ii) mail a notice stating that the Common Equivalent Rate has been
adjusted, the facts requiring such adjustment and upon which such
adjustment is based and setting forth the adjusted Common Equivalent Rate
to the holders of record of the outstanding shares of the Series A
Preference Stock at or prior to the time the Corporation mails an interim
statement to its stockholders covering the fiscal quarter during which the
facts requiring such adjustment occurred, but in any event within 45 days
of the end of such fiscal quarter.
(e) No Fractional Shares. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon the redemption of any
shares of Series A Preference Stock. Instead of any fractional interest in a
share of Common Stock which would otherwise be deliverable upon the redemption
of a share of Series A Preference Stock, the Corporation shall pay to the holder
of such share an amount in cash (computed to the nearest cent) equal to the same
fraction of the Current Market Price of the Common Stock determined as of the
second Trading Date immediately preceding the relevant Notice Date. If more than
one share shall be surrendered for redemption at one time by the same holder,
the number of full shares of Common Stock issuable upon redemption thereof shall
be computed on the basis of the aggregate number of shares of Series A
Preference Stock so surrendered.
(f) Retirement. Shares of Series A Preference Stock which have been
redeemed, purchased or acquired by the Corporation (whether through the
operation of a sinking fund or otherwise) shall have the status of authorized
and unissued shares of Preference Stock and may be reissued as a part of the
series of which they were originally a part or may be reclassified and reissued
as part of a new series of Preference Stock to be created by resolution of the
Board of Directors or as part of any other series of Preference Stock. If in any
case the amounts payable with respect to any obligations to retire shares of
Series A Preference Stock and any other series of Preference
Stock are not paid in full in the case of all series with respect to which such
obligations exist, the number of shares of the various series to be retired
shall be in proportion to the respective amounts which would be payable on
account of such obligations if all amounts payable were discharged in full.
(g) Definitions. As used in this paragraph 4 or elsewhere herein:
(i) the term "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the State of
New York or the Commonwealth of Pennsylvania are authorized or obligated by
law or executive order to close or are closed because of a banking
moratorium or otherwise;
(ii) the term "Call Price" shall mean the per share price (payable
in shares of Common Stock) at which the Corporation may redeem shares of
Series A Preference Stock pursuant to paragraph 4(a)(1)), which shall be
initially equal to $84.79952, declining by $.004444 on each day following
June 12, 1995 (computed on the basis of a 360-day year of twelve 30-day
months) to $80.26664 on April 12, 1998 and equal to $80 thereafter through
June 11, 1998, if not sooner redeemed;
(iii) the term "Closing Price" on any day shall mean the closing
sale price regular way (with any relevant due bills attached) on such day,
or in case no such sale takes place on such day, the average of the
reported closing bid and asked prices regular way (with any relevant due
bills attached), in each case on the New York Stock Exchange Consolidated
Tape (or any successor composite tape reporting transactions on national
securities exchanges), or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading (which shall be the
national securities exchange on which the greatest number of shares of
Common Stock has been traded during the five consecutive Trading Dates
ending on and including the date of determination of the Current Market
Price), or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices regular way (with
any relevant due bills attached) of the Common Stock on the over-the-
counter market on the day in question as reported by the National
Association of Securities Dealers Automated Quotation System, or a
similarly generally accepted reporting service, or if not so available, as
determined in good faith by the Board of Directors on the basis of such
relevant factors as the Board of Directors in good faith considers
appropriate;
(iv) the term "Fundamental Transaction" shall mean a merger or
consolidation of the Corporation, a share exchange, division or conversion
of the Corporation's capital stock or an amendment of the Corporation's
Articles
of Incorporation that results in the conversion or exchange of Common Stock
into, or the right of the holders thereof to receive, in lieu of or in
addition to their shares of Common Stock, other securities or other
property (whether of the Corporation or any other entity);
(v) the term "Notice Date" with respect to any notice given by the
Corporation in connection with a redemption of any of the Series A
Preference Stock shall be the commencement of the mailing of such notice to
the holders of the Series A Preference Stock in accordance with paragraph
(4)(h);
(vi) the term "Outstanding," when used in reference to shares of
stock, shall mean issued shares excluding:
(A) shares held by the Corporation or a subsidiary; and
(B) shares called for redemption if funds for the redemption
thereof have been deposited in trust;
(vii) the term "Subsidiary" as used herein shall mean any
corporation 51% or more of the outstanding stock having voting rights of
which is at the time owned or controlled directly or indirectly by the
Corporation; and
(viii) the term "Trading Date" shall mean a date on which the New
York Stock Exchange (or any successor to such Exchange) is open for the
transaction of business.
(h) Method of Redemption. Notice of every redemption, stating the
redemption date, the redemption price, and the placement of payment thereof,
shall be given by mailing a copy of such notice at least thirty (30) days and
not more than sixty (60) days prior to the date fixed for redemption to the
holders of record of the shares of Series A Preference Stock to be redeemed at
their addresses as the same shall appear on the books of the Corporation. The
Corporation, upon mailing notice of redemption as aforesaid or upon irrevocably
authorizing the bank or trust company hereinafter mentioned to mail such notice,
may deposit or cause to be deposited in trust with a bank or trust company in
the City of Philadelphia, Commonwealth of Pennsylvania, or in the Borough of
Manhattan, City and State of New York, an amount equal to the redemption price
of the shares to be redeemed plus any accrued and unpaid dividends thereon,
which amount shall be payable to the holders of the shares to be redeemed upon
surrender of certificates therefor on or after the date fixed for redemption or
prior thereto if so directed by the Board of Directors. Upon such deposit, or if
no such deposit is made, then from and after the date fixed for redemption
unless the Board of Directors shall default in making payment of the redemption
price plus accrued and unpaid dividends upon surrender of certificates as
aforesaid, the shares called for redemption
shall cease to be outstanding and the holders thereof shall cease to be
stockholders with respect to such shares and shall have no interest in or claim
against the Corporation with respect to such shares other than the right to
receive the redemption price plus accrued and unpaid dividends from such bank or
trust company or from the Corporation, as the case may be, without interest
thereon, upon surrender of certificates as aforesaid. In case any holder of
shares of Series A Preference Stock which have been called for redemption shall
not, within six (6) years after the date of such deposit, have claimed the
amount deposited with respect to the redemption thereof, such bank or trust
company, upon demand, shall pay over to the Corporation such unclaimed amount
and shall thereupon be relieved of all responsibility in respect thereof to such
holder, and thereafter such holder shall look only to the Corporation for
payment thereof. Any interest which may accrue on funds so deposited shall be
paid to the Corporation from time to time.
(i) Surrender of Certificates; Status. Each holder of shares of Series
A Preference Stock to be redeemed shall surrender the certificates evidencing
such shares (properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice shall so state) to
the Corporation at the place designated in the notice of such redemption and
shall thereupon be entitled to receive certificates evidencing shares of Common
Stock and to receive any other funds payable pursuant to this paragraph (4)
following such surrender and following the date of such redemption. In case
fewer than all the shares represented by any such surrendered certificate are
called for redemption, a new certificate shall be issued at the expense of the
Corporation representing the unredeemed shares. If such notice of redemption
shall have been given, and if on the date fixed for redemption shares of Common
Stock and other funds necessary for the redemption shall have been either set
aside by the Corporation separate and apart from its other funds or assets in
trust for the account of the holders of the shares to be redeemed (and so as to
be and continue to be available therefor) or deposited with a bank or trust
company as provided in paragraph (4)(h), then, notwithstanding that the
certificates evidencing any shares of Series A Preference Stock so called for
redemption shall not have been surrendered, the shares represented thereby so
called for redemption shall be deemed no longer outstanding, dividends with
respect to the shares so called for redemption shall cease to accrue after the
date fixed for redemption, and all rights with respect to the shares so called
for redemption shall forthwith after such date cease and terminate, except for
the right of the holders to receive the shares of Common Stock and other funds,
if any, payable pursuant to this paragraph (4) without interest upon surrender
of their certificates therefor.
(j) Dividend Payments. The holders of shares of Series A Preference
Stock at the close of business on a dividend payment record date shall be
entitled to receive the dividend payable on such shares on the corresponding
dividend payment date notwithstanding the call for redemption thereof (except
that
holders of shares called for redemption on a date occurring between such record
date and the dividend payment date or on such dividend payment date shall not be
entitled to receive such dividend on such dividend payment date but instead will
receive accrued and unpaid dividends to such redemption date.
(k) Payment of Taxes. 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 the redemption of shares of Series A
Preference Stock pursuant to this paragraph (4); provided, however, that the
Corporation shall not be required to pay any tax which may be payable in respect
of any registration of transfer involved in the issue or delivery of shares of
Common Stock in a name other than that of the registered holder of Series A
Preference Stock redeemed or to be redeemed, and no such issue or delivery shall
be made unless and until the person requesting such issue 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.
5. Liquidation Preference.
(a) Upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the Series A Preference Stock shall be preferred
as to assets over Common Stock and any other Junior Stock so that the holder of
each share of the Series A Preference Stock shall be entitled to be paid or to
have set apart for payment in respect of each such share, before any
distribution is made to the holders of Common Stock and any other Junior Stock,
a liquidation preference equal to twice the fair market value (as determined by
the Board of Directors of the Corporation based on advice of tax counsel in
accordance with United States federal income tax principles, which determination
shall be conclusive) of a Series A Depositary Share (as defined in the Deposit
Agreement dated as of June 13, 1995 between the Corporation and First Chicago
Trust Company of New York, as Depositary) on the date of issuance thereof, plus
an amount equal to all dividends accrued and unpaid up to and including the date
fixed for such payment, and such holder of a share of the Series A Preference
Stock shall not be entitled to any other payment. If upon any such liquidation,
dissolution or winding up of the Corporation, its net assets shall be
insufficient to permit the payment in full of the respective amounts to which
the holders of all outstanding shares of the Series A Preference Stock and any
outstanding Preference Stock that is Parity Stock are entitled, the entire
remaining net assets of the Corporation shall be distributed among the holders
of the Series A Preference Stock and any outstanding Preference Stock that is
Parity Stock, in amounts proportionate to the full preferential amounts to which
they are respectively entitled.
(b) The voluntary sale, lease, exchange or transfer for cash, shares of
stock (securities or other consideration) of all or substantially all the
Corporation's
property or assets to, or its consolidation or merger with, one or more
corporations shall not be deemed to be a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
6. Voting Rights.
(a) The holders of record of shares of Series A Preference Stock shall
not be entitled to any voting rights except as hereinafter provided in this
paragraph (6) or as otherwise provided in the Articles of Incorporation or by
statute.
(b) The holders of shares of Series A Preference Stock shall be
entitled to vote on all matters submitted to a vote of the holders of the Common
Stock, voting together with the holders of the Common Stock (and any other class
or series of capital stock of the Corporation entitled to vote together with the
Common Stock) as one class. Each share of the Series A Preference Stock shall be
entitled to one vote.
(c) (i) If the Corporation shall have failed to pay, or declare and set
apart for payment, dividends on Preference Stock in an aggregate amount
equivalent to six (6) full quarterly dividends on all shares of Preference Stock
at the time outstanding, the number of Directors of the Corporation shall be
increased by two (2) at the first annual meeting of the shareholders of the
Corporation held thereafter, and at such meeting and at each subsequent annual
meeting until dividends payable for all past quarterly dividend periods on all
outstanding shares of Preference Stock shall have been paid, or declared and set
apart for payment, in full, the holders of the shares of Preference Stock shall
have, in addition to any other voting rights which they otherwise may have, the
exclusive and special right, voting separately as a class without regard to
series, each share of Preference Stock entitling the holder thereof to one (1)
vote per share, to elect two (2) additional members of the Board of Directors to
hold office for a term of one (1) year; provided, that the right to vote as a
class upon the election of such two (2) additional Directors shall not limit the
right of holders of the Series A Preference Stock to vote upon the election of
all other Directors and upon other matters set forth in paragraph 6(b) above.
(ii) Upon such payment, or declaration and setting apart for payment,
in full, the terms of the two (2) additional Directors so elected shall
forthwith terminate, and the number of Directors of the Corporation shall be
reduced by two (2) and such voting right of the holders of shares of Preference
Stock shall cease, subject to increase in the number of Directors as aforesaid
and to revesting of such voting right in the event of each and every additional
failure in the payment of dividends in an aggregate amount equivalent to six (6)
full quarterly dividends as aforesaid.
(d) The Corporation shall not, without the affirmative vote or consent
of the holders of at least 66 2/3% of the number of shares of Preference Stock
at the time outstanding, voting or consenting (as the case may be) separately as
a class without regard to series, given in person or by proxy, either in writing
or by resolution adopted at a meeting:
(i) create any class of stock ranking prior to or on a parity with
Preference Stock as to dividends or upon liquidation or increase the
authorized number of shares of any such previously authorized class of
stock;
(ii) alter or change any of the provisions of the Articles of
Incorporation so as to adversely affect the preferences, special rights or
powers given to the Preference Stock;
(iii) increase the number of shares of Preference Stock which the
Corporation is authorized to issue; or
(iv) alter or change any of the provisions of the Articles of
Incorporation or hereof so as to adversely affect the preferences, special
rights or powers given to the Series A Preference Stock.
7. Conversion. The Series A Preference Stock shall not have any
conversion rights to convert into Common Stock.
8. Fundamental Transactions. Upon the effectiveness of a Fundamental
Transaction at any time, each share of Series A Preference Stock shall be
entitled to receive consideration per share (i) of the same type as is offered
to or to be received by holders of Common Stock pursuant to or in connection
with such Fundamental Transaction and (ii) having a fair value equal to the fair
value of the Common Stock that each share of Series A Preference Stock would
receive if such share of Series A Preference Stock were redeemed by the Company
immediately prior to such time in accordance with paragraph 4 hereof.
SERIES B PARTICIPATING CUMULATIVE PREFERENCE STOCK
Section 1. Designation and Number of Shares. The shares of such series
shall be designated as "Series B Participating Cumulative Preference Stock" (the
"Series B Preference Stock"), and the number of shares constituting such series
shall be 1,743,019. Such number of shares of the Series B Preference Stock may
be increased or decreased by resolution of the Board of Directors; provided that
no decrease shall reduce the number of shares of Series B Preference Stock to a
number less than the number of shares then outstanding plus the number of shares
issuable upon exercise or conversion of outstanding rights, options or other
securities issued by the Corporation.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series B Preference Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable on or before March 13,
June 13, September 13 and December 13 (or, if any such day is not a business
day, on the next succeeding business day) of each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of any share or
fraction of a share of Series B Preference Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00 and (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends or other distributions and 100 times the
aggregate per share amount of all non-cash dividends or other distributions
(other than (i) a dividend payable in shares of Common Stock, par value $1.00
per share, of the Corporation (the "Common Stock")) or (ii) 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 B Preference Stock.
If the Corporation shall at any time after February 1, 1996 (the "Rights
Declaration Date") pay any dividend on Common Stock payable in shares of Common
Stock or effect a subdivision or combination of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which holders of
shares of Series B Preference Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
B Preference Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than as described
in clauses (i) and (ii) of the first sentence of paragraph (A)); provided that
if 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 (or, with respect to the first
Quarterly Dividend Payment Date, the period between the first issuance of any
share or fraction of a share of Series B Preference Stock and such first
Quarterly Dividend Payment Date), a dividend of $1.00 per share on the Series B
Preference Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series B Preference Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series B Preference Stock, unless
the date of issue of such shares is on or before the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue and be cumulative from the date of issue of such shares, or
unless the date of issue is a date after the record date for the determination
of holders of shares of Series B Preference Stock entitled to receive a
quarterly dividend and on or before such Quarterly Dividend Payment Date, in
which case 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 shares of Series B Preference Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series B Preference Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall not be more than 60 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. Except as otherwise provided by Article FOURTH of
the Articles of Incorporation of the Corporation or by statute, holders of
Series B Preference Stock shall have no voting rights, and their consent shall
not be required for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series B Preference Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on outstanding shares of Series B
Preference Stock shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, or make any other distributions on, any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preference 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 Preference Stock,
except dividends paid ratably on the Series B Preference Stock and all such
other 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, purchase or otherwise acquire for value any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Preference Stock; provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of stock of the Corporation ranking
junior (as to dividends and upon dissolution, liquidation or winding up) to
the Series B Preference Stock; or
(iv) redeem, purchase or otherwise acquire for value any shares of Series B
Preference Stock, or any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series B
Preference Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of Series B Preference Stock and all such other parity stock upon
such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for value any shares of stock of the Corporation
unless the Corporation could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B Preference Stock
redeemed, 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 Series B Preference Stock without designation as to series and may be
reissued as part of a new series of Series B Preference Stock to be created by
resolution or resolutions of the Board of Directors as permitted by the Articles
of Incorporation or as otherwise permitted under Pennsylvania Law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preference Stock unless,
prior thereto, the holders of shares of Series B Preference Stock shall have
received $1.00 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment;
provided that the holders of shares of Series B Preference Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of Common Stock, or (2) to the holders of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preference Stock, except
distributions made ratably on the Series B Preference Stock and all such other
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. If the
Corporation shall at any time after the Rights Declaration Date pay any dividend
on Common Stock payable in shares of Common Stock or effect a subdivision or
combination of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the aggregate amount to which holders of shares of Series B
Preference Stock were entitled immediately prior to such event under the
provision clause (1) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. If the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash or any other property, then in any such case the shares of Series B
Preference Stock shall at the same time be similarly exchanged for or changed
into an amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount of stock, securities, cash or
any other property, as the case may be, into which or for which each share of
Common Stock is changed or exchanged. If the Corporation shall at any time after
the Rights Declaration Date pay any dividend on Common Stock payable in shares
of Common Stock or effect a subdivision or combination of the outstanding shares
of Common Stock (by reclassification or otherwise) into a greater or lesser
number of shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of
Series B Preference Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The Series B Preference Stock shall not be
redeemable.
Section 9. Rank. The Series B Preference Stock shall rank junior (as to
dividends and upon liquidation, dissolution and winding up) to all other series
of the Corporation's preference stock except any series that specifically
provides that such series shall rank junior to the Series B Preference Stock.
Section 10. Fractional Shares. Series B Preference Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series B Preference Stock.
Common Stock
Each holder of record of Common Stock shall have the right to one (1) vote
for each share of Common Stock standing in his name on the books of the
Corporation. Except as required by law or as otherwise specifically provided in
this Article Fourth, the holders of Preference Stock having voting rights and
holders of Common Stock shall vote together as one class.
Preemptive Rights
Neither the holders of Preference Stock nor the holders of Common Stock
shall have any preemptive rights, and the Corporation shall have the right to
issue and to sell to any person or persons any shares of its capital stock or
any option rights or any securities having conversion or option rights, without
first offering such shares, rights or securities to any holders of Preference
Stock or Common Stock.
Fifth: 1. The affirmative vote of the holders of not less than 75% of the
outstanding shares of "Voting Stock" held by shareholders other than a "Related
Person" shall be required for the approval or authorization of any "Business
Combination" of the Corporation with any Related Person; provided, however, that
the 75% voting requirement shall not be applicable if:
(i) The "Continuing Directors" of the Corporation by at least a two-thirds
vote of such Continuing Directors have expressly approved such Business
Combination either in advance of or subsequent to such Related Person's having
become a Related Person; or
(ii) The cash or fair market value (as determined by at least two-thirds of
the Continuing Directors) of the property, securities or other consideration to
be received per share by holders of Voting Stock of the Corporation in the
Business Combination is not less than the "Highest Per Share Price" or the
"Highest Equivalent Price" paid by the Related Person in acquiring any of its
holdings of the Corporation's Voting Stock.
2. For purposes of this Article FIFTH:
(i) The term "Business Combination" shall mean (a) any merger or
consolidation of the Corporation or a subsidiary of the Corporation with or into
a Related Person, (b) any sale, lease, exchange, transfer or other disposition,
including without limitation a mortgage or any other security device, of all or
any "Substantial Part" of the assets either of the Corporation (including
without limitation any voting securities of a subsidiary) or of a subsidiary of
the Corporation to a Related Person, (c) any merger or consolidation of a
Related Person with or into the Corporation or a subsidiary of the Corporation,
(d) any sale, lease, exchange, transfer or other disposition,
including without limitation a mortgage or other security device, of all or any
Substantial Part of the assets of a Related Person to the Corporation or a
subsidiary of the Corporation, (e) the issuance of any securities of the
Corporation or a subsidiary of the Corporation to a Related Person other than
the issuance on a pro rata basis to all holders of shares of the same class
pursuant to a stock split or stock dividend, or a distribution of warrants or
rights, (f) any recapitalization that would have the effect of increasing the
voting power of a Related Person, and (g) any agreement, contract or other
arrangement providing for any of the transactions described in this definition
of Business Combination.
(ii) The term "Related Person" shall mean and include any individual,
corporation, partnership or other person or entity which, together with its
"Affiliates" and "Associates" becomes the "Beneficial Owner" of an aggregate of
10% or more of the outstanding Voting Stock of the Corporation, and any
Affiliate or Associate of any such individual, corporation, partnership or other
person or entity; provided, however, that the term "Related Person" shall not
include (1) a person or entity whose acquisition of such aggregate percentage of
Voting Stock was approved in advance by two-thirds of the Continuing Directors
or (2) any trustee or fiduciary when acting in such capacity with respect to any
employee benefit plan of the Corporation or a wholly owned subsidiary of the
Corporation. No person who became a Related Person prior to December 31, 1983
shall be treated as a Related Person for the purpose of voting on any amendment,
alteration, change or repeal of this Article FIFTH or voting on any Business
Combination to which such Related Person is not a party.
(iii) The term "Substantial Part" shall mean an amount equal to 10% or more
of the fair market value as determined by two-thirds of the Continuing Directors
of the total consolidated assets of the Corporation and its subsidiaries taken
as a whole as of the end of its most recent fiscal year ended prior to the time
the determination is being made.
(iv) The term "Beneficial Owner" shall mean any person (1) who beneficially
owns shares of Voting Stock within the meaning ascribed in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on the date of adoption of this Article FIFTH by the shareholders of the
Corporation, or (2) who has the right to acquire Voting Shares (whether or not
such right is exercisable immediately) pursuant to any agreement, contract,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise.
(v) For purposes of subparagraph l(ii) of this Article FIFTH, the term
"other consideration to be received" shall include, without limitation, the
value per share of Common Stock or other capital stock of the Corporation
retained by its existing shareholders as adjusted to give effect to the proposed
Business Combination in the event of any Business Combination in which the
Corporation is a surviving corporation.
(vi) The term "Voting Stock" shall mean all of the outstanding shares of
Common Stock entitled to vote on each matter on which the holders of record of
Common Stock shall be entitled to vote, and each reference to a proportion of
shares of Voting Stock shall refer to such proportion of the votes entitled to
be cast by such shares.
(vii) The term "Continuing Director" shall mean a Director who was a member
of the Board of Directors of the Corporation immediately prior to the time that
the Related Person involved in a Business Combination became a Related Person.
As to any person who became a Related Person prior to December 31, 1983, a
Continuing Director shall mean a Director who was a member of the Board of
Directors on December 31, 1983.
(viii) A Related Person shall be deemed to have acquired a share of the
Voting Stock of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to the shares owned by Affiliates,
Associates or other persons whose ownership is attributed to a Related Person
under the foregoing definition of Related Person, if the price paid by such
Related Person for such shares is not determinable by two-thirds of the
Continuing Directors, the price so paid shall be deemed to be the higher of (a)
the price paid upon the acquisition thereof by the Affiliate, Associate or other
person or (b) the market price of the shares in question at the time when the
Related Person became the Beneficial Owner thereof.
(ix) The terms "Highest Per Share Price" and "Highest Equivalent Price" as
used in this Article FIFTH shall mean the following: If there is only one (1)
class of capital stock of the Corporation issued and outstanding, the Highest
Per Share Price shall mean the highest price that can be determined to have been
paid at any time by the Related Person for any share or shares of that class of
capital stock. If there is more than one class of capital stock of the
Corporation issued and outstanding, the Highest Equivalent Price shall mean,
with respect to each class and series of capital stock of the Corporation, the
amount determined by two-thirds of the Continuing Directors, on whatever basis
they believe is appropriate, to be the highest per share price equivalent of the
highest price that can be determined to have been paid at any time by the
Related Person for any share or shares of any class of series of capital stock
of the Corporation. In determining the Highest Per Share Price and Highest
Equivalent Price, all purchases by the Related Person shall be taken into
account regardless of whether the shares were purchased before or after the
Related Person became a Related Person. Also, the Highest Per Share Price and
the Highest
Equivalent Price shall include any brokerage commissions, transfer taxes and
soliciting dealers' fees or other value paid by the Related Person with respect
to the shares of capital stock of the Corporation acquired by the Related
Person.
(x) The terms "Affiliate" and "Associate" shall have the same meaning as in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934 as on the date of the adoption of this Article FIFTH by the
shareholders of the Corporation.
3. The provisions set forth in this Article FIFTH may not be amended, altered,
changed or repealed in any respect unless such action is approved by the
affirmative vote of the holders of not less than 75% of the outstanding shares
of Voting Stock of the Corporation at a meeting of the shareholders duly called
for the consideration of such amendment, alteration, change or repeal; provided,
however, that if there is a Related Person, such action must also be approved by
the affirmative vote of the holders of not less than 75% of the outstanding
shares of Voting Stock not held by any Related Person.
Sixth: The duration of the Corporation shall be perpetual.
Seventh: The business and affairs of the Corporation shall be managed by a
Board of Directors. The number of Directors of the Corporation shall be fixed
from time to time by the Bylaws but shall not be fixed at less than five (5).
The number of the Directors may be increased or diminished (but not to less than
five (5)), as may from time to time be provided in the Bylaws. In case of any
increase in the number of Directors the additional Directors shall be elected as
may be provided in the Bylaws, either by the Directors or by the shareholders.
The shareholders of the Corporation shall not be entitled to cumulative
voting rights in the election of Directors.
Any officer elected or appointed by the Board of Directors may be removed
at any time by affirmative vote of a majority of the whole Board of Directors.
The Board of Directors, by the affirmative vote of a majority of the whole
Board, may appoint from the Directors an Executive Committee, of which a
majority shall constitute a quorum, and to such extent as shall be provided in
the Bylaws such Committee shall have and may exercise all or any of the powers
of the Board of Directors, including the power to cause the seal of the
Corporation to be affixed to all papers that may require it.
The Board of Directors, by the affirmative vote of a majority of the whole
Board, may appoint any other standing committees, and such standing committees
shall have and may exercise such powers as shall be conferred or authorized by
the Bylaws.
The Board of Directors shall have power from time to time to fix and to
determine and to vary the amount of the working capital of the Corporation and
to direct and determine the use and disposition of any surplus or net profits
over and above the capital stock paid in.
Subject always to alteration and repeal by the shareholders, and to Bylaws
made by the shareholders, the Board of Directors may make Bylaws and from time
to time may alter, amend or repeal any Bylaws; and any Bylaws made by the Board
of Directors may be so altered or repealed by the shareholders at any annual
meeting or at any special meeting, provided notice of such proposed alteration
or repeal be included in the notice of the special meeting.
Eighth: 1. Any direct or indirect purchase or other acquisition by the
Corporation of any "Equity Security" of any class or series from any "Five
Percent Holder", if such Five Percent Holder has been the "Beneficial Owner" of
such security for less than two years prior to the earlier of the date of such
purchase or any agreement in respect thereof at a price in excess of the "Fair
Market Value" thereof, shall, except as hereinafter expressly provided, require
the affirmative vote of the holders of at least a majority of the "Voting Stock"
excluding Voting Stock of which such Five Percent Holder is the Beneficial
Owner; provided, however, that the foregoing majority voting requirement shall
not be applicable with respect to (i) any purchase or other acquisition of an
Equity Security made as part of a tender or exchange offer by the Corporation to
purchase Equity Securities of the same class made on the same terms to all
holders of such security, or (ii) a purchase program effected on the open market
and not the result of a privately-negotiated transaction, or (iii) any optional
or required redemption of an Equity Security pursuant to the terms of such
security.
2. For purposes of this Article EIGHTH:
(i) The term "Equity Security" means an equity security of the Corporation
within the meaning ascribed to such term in Section 3(a)(11) of the Securities
Exchange Act of 1934, as in effect on January 1, 1985.
(ii) The term "Fair Market Value" means, in the case of any Equity
Security, the closing sale price on the trading day immediately preceding the
earlier of the date of any purchase subject to Paragraph 1 of this Article
EIGHTH, or the date of any agreement in respect thereof (such earlier date, the
"Valuation Date"), of a share of such Equity Security on the Composite Tape for
New York Stock Exchange Listed Stocks, or, if such security is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such security is not
listed on such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such security is
listed, or, if such security is not listed on any such Exchange, the closing bid
quotation with respect to such security on the trading day immediately preceding
the Valuation Date on the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such quotations
are available, the Fair Market Value on the Valuation Date of such security as
determined by the Board of Directors in good faith.
(iii) The term "Person" shall mean any individual, corporation, partnership
or other entity and shall include any group comprised of any Person and any
other Person with whom such Person or any Affiliate or Associate of such Person
has any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Voting Stock, and any
member of such group.
(iv) The term "Five Percent Holder" shall mean and include any Person
which, together with its "Affiliates" and "Associates" becomes the Beneficial
Owner of an aggregate of five percent (5%) or more of any class of Voting Stock
of the Corporation, and any Affiliate or Associate of any such Person; provided,
however, that for purposes of this Article EIGHTH, including, without
limitation, Paragraphs 1 and 4 hereof, the term Five Percent Holder shall not
include (1) any trustee or fiduciary when acting in such capacity with respect
to any employee benefit plan of the Corporation or a wholly owned subsidiary of
the Corporation or (2) any Person that would have been a Five Percent Holder on
December 31, 1984 if this Article EIGHTH were then in effect.
(v) The terms "Affiliate" and "Associate" shall have the meanings ascribed
to them in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on May 3, 1984.
(vi) The term "Beneficial Owner" shall mean any person (1) who beneficially
owns shares of Voting Stock within the meaning ascribed in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on May 3, 1984, or (2) who has the right to acquire Voting Stock (whether
or not such right is exercisable immediately) pursuant to any agreement,
contract, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise.
(vii) The term "Voting Stock" shall mean all of the outstanding shares of
Common Stock, and the outstanding shares of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation entitled
to vote on each matter on which the holders of Common Stock shall be entitled to
vote, and each reference to a vote of a proportion of shares of Voting Stock
shall refer to such proportion of the votes entitled to be cast by such shares.
(viii) In any determination whether a Person is a Five Percent Holder for
purposes of this Article EIGHTH, the relevant class of securities outstanding
shall be deemed to comprise all such securities deemed owned by such Person and
its Affiliates and Associates through application of Paragraph 2(vi)(2) of this
Article EIGHTH, but shall not include any other securities of such class which
may be issuable pursuant to any agreement, contract, arrangement or
understanding, or upon exercise of conversion rights, exchange rights, warrants
or options, or otherwise.
3. The Board of Directors shall have the power to interpret all the provisions
of this Article EIGHTH and their application to a particular transaction,
including, without limitation, the power to determine (a) whether a Person is a
Five Percent Holder, (b) the number of shares of Voting Stock or other Equity
Securities of which any Person and its Affiliates and Associates are the
Beneficial Owners, (c) whether a Person is an Affiliate or Associate of another,
and (d) what is Fair Market Value and whether a price is above Fair Market Value
as of a given date. Any such determination made by the Board of Directors shall
be conclusive and binding to the fullest extent permitted by law.
4. The provisions set forth in this Article EIGHTH may not be amended, altered,
changed or repealed in any respect and no provision inconsistent herewith shall
be adopted unless such action is approved by the affirmative vote of the holders
of at least 75% of the Voting Stock of the Corporation at any annual meeting of
shareholders or at any special meeting duly called for that purpose, provided
notice of such amendment, alteration, change or repeal or adoption be included
in the notice of the special meeting; provided, however, that if there is a Five
Percent Holder such action must also be approved by the affirmative vote of the
holders of at least 75%. of the Voting Stock excluding Voting Stock of which any
Five Percent Holder is the Beneficial Owner.
Ninth: 1. Directors and Officers as Fiduciaries. A Director or Officer of
the Corporation shall stand in a fiduciary relation to the Corporation and shall
perform his duties as a Director or Officer, including his duties as a member of
any committee of the Board upon which he may serve, in good faith, in a manner
he reasonably believes to be in the best interests of the Corporation, and with
such care, including reasonable inquiry, skill and diligence, as a person of
ordinary prudence would use under similar circumstances. In performing his
duties, a Director or Officer shall be entitled to rely in good faith on
information, opinions, reports or statements, including financial statements and
other financial data, in each case prepared or presented by one or more Officers
or employees of the Corporation whom the Director or Officer reasonably believes
to be reliable and competent with respect to the matters presented, counsel,
public accountants or other persons as to matters that the Director or Officer
reasonably believes to be within the professional or expert competence of such
person, or a committee of the Board of Directors upon which the Director or
Officer does not serve, duly designated in accordance with law, as to matters
within its designated authority, which committee the Director or Officer
reasonably believes to merit confidence. A Director or Officer shall not be
considered to be acting in good faith if he has knowledge concerning the matter
in question that would cause his reliance to be unwarranted. Absent breach of
fiduciary duty, lack of good faith or self-dealing, actions taken as a Director
or Officer of the Corporation or any failure to take any action shall be
presumed to be in the best interests of the Corporation.
2. Personal Liability of Directors. A Director of the Corporation shall not be
personally liable, as such, for monetary damages (including without limitation,
any judgment, amount paid in settlement, penalty, punitive damages or expense of
any nature (including, without limitation, attorneys' fees and disbursements))
for any action taken, or any failure to take any action, unless (1) the Director
has breached the duties of his office or has failed to perform his duties as a
Director in good faith, in a manner he reasonably believed to be in the best
interests of the Corporation and with such care, including reasonable inquiry,
skill and diligence, as a person of ordinary prudence would use under similar
circumstances; and (2) the breach or failure to perform constitutes self-
dealing, willful misconduct or recklessness.
3. Personal Liability of Officers. An Officer of the Corporation shall not be
personally liable, as such, to the Corporation or its shareholders for monetary
damages (including without limitation, any judgment, amount paid in settlement,
penalty, punitive damages or expense or any nature (including, without
limitation, attorneys' fees and disbursements)) for any action taken, or any
failure to take any action, unless (1) the Officer has breached the duties of
his office or has failed to perform his duties as an Officer in good faith, in a
manner he reasonably believed to be in the best interests of the Corporation and
with such care, including reasonable inquiry, skill and diligence, as a person
of ordinary prudence would use under similar circumstances; and (2) the breach
or failure to perform constitutes self-dealing, willful misconduct or
recklessness.
Tenth: Any record holder of at least ten percent (10%) of the outstanding
shares of the Corporation's Voting Stock shall have the rights to:
(a) call a special meeting of the shareholders; and
(b) to propose an amendment to the Articles by a petition setting forth the
proposed amendment, which petition shall be directed to, and filed with, the
Board of Directors; subject, however, to all limitations and restrictions which
are, or may hereafter be, imposed on, or with respect to, the Corporation's
Voting Stock and/or record holders of the Corporation's Voting Stock by
Pennsylvania statutory law (other than the provisions of Section 2521(a) of the
Pennsylvania Business Corporation Law of 1988), these Articles, or the
Corporation's Bylaws. For purposes of this Article TENTH, the term "Voting
Stock" shall mean all of the outstanding shares of Common Stock, and the
outstanding shares of any class or series of stock having preference over the
Common Stock as to dividends or as to liquidation entitled to
vote on each matter on which the holders of Common Stock shall be entitled to
vote, and reference to a percentage of shares of Voting Stock shall refer to the
percentage of votes entitled to be cast by such shares.
Approved and Filed: August 4, 1971
Amended and Restated: March 30, 1990
Amended: December 23, 1992
Amended: May 4, 1995
Amended: June 13, 1995
Amended: February 1, 1996
Articles of Incorporation
Footnote: all references to gender are denoted as "he."
I, Ann C. Mule', Secretary of Sun Company, Inc. hereby certify that the
foregoing is a true and correct copy of the Articles of Incorporation of Sun
Company, Inc.
Date: February 1, 1996
s/ ANN C. MULE' Secretary
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