EXHIBIT 3.1
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
APRIL 11, 1997
TO ALL WHOM THESE PRESENTS SHALL COME, GREETING:
CHEMICAL LEAMAN CORPORATION
I, Yvette Kane, Secretary of the Commonwealth of Pennsylvania do hereby
certify that the foregoing and annexed is a true and correct photocopy of Index
and Docket Record
which appear of record in this department
IN TESTIMONY WHEREOF, I have hereunto
[SEAL] set my hand and caused the Seal of the
Secretary's Office to be affixed, the
day and year, above written.
/s/ Yvette Kane
---------------------------------------
Secretary of the Commonwealth
PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
ROOM 308 NORTH OFFICE BUILDING
P.O. BOX 8722
HARRISBURG, PA 17105-8722
(717) 787-1057
RECORD SEARCH
APRIL 14, 1997
EXAMINATION OF THE INDICES IN THE DEPARTMENT OF STATE ON THE ABOVE DATE SHOWS A
PENNSYLVANIA BUSINESS CORPORATION WAS FILED ON MARCH 02, 1977 ENTITLED:
CHEMICAL LEAMAN CORPORATION
ENTITY #0647190
WITH ADDRESS AT: 102 PICKERING WAY
LIONVILLE, (CHESTER COUNTY), PA 19353
CORPORATE OFFICERS ON RECORD ARE:
CEO: DAVID R. HAMILTON
VP: EUGENE PARKERSON
SEC: DAVID BOUCHER
MAILING ADDRESS IS: 102 PICKERING WAY
EXTON, PA 19341
THIS IS A SUBSISTING ASSOCIATION.
3-1-77:11
DSCB: 17.3 (Rev. 8-72)
Filing Fee: None
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
Consent to Use of
Similar Name
Pursuant to 19 Pa. Code Section 17.3 (relating to use of a deceptively
similar name) the undersigned corporation, desiring to consent to the use by
another corporation of a name which is deceptively similar to its name, does
hereby certify that:
1. The name of the corporation executing this Consent of Use of Similar Name is:
Chemical Leaman Tank Lines, Inc. (63780)
- --------------------------------------------------------------------------------
2. The address of the registered office of the corporation is (the Department of
State is hereby authorized to correct the following statement to conform to the
records of the Department):
506 E. Lancaster Avenue
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Downingtown Pennsylvania 19335
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The date of its incorporation is: 5/14/48
--------------------------
4. The statute under which it was incorporated is:
General Corporation Law of the State of Delaware, enacted March 10, 1899, as
- --------------------------------------------------------------------------------
amended
5. The corporation(s) entitled to the benefit of this Consent to Use of Similar
Name is (are):
Chemical Leaman Corporation
- --------------------------------------------------------------------------------
6. A check in this box: / / indicates that the corporation executing this
Consent to Use of Similar Name is the parent or prime affiliate of a group of
corporations using the same name with geographic or other designations, and that
such corporation is authorized to and does hereby act on behalf of all such
affiliated corporations, including the following (sec 19 Pa. Code Section
17.3(cX7)):
3-1-77:11
DSCB: 17.3 (Rev. 8-72)-2
IN TESTIMONY WHEREOF, the undersigned corporation has caused this consent
to be signed by a duly authorized officer and its corporate seal, duly attested
by another such officer, to be hereunto affixed, this 1st day of March, 1976.
CHEMICAL LEAMAN TANK LINES, INC.
By: /s/ S. F. Niness, Jr.
-----------------------------
(SIGNATURE)
EXECUTIVE VICE PRESIDENT
------------------------------
(TITLE: PRESIDENT,
VICE PRESIDENT, ETC.)
Attest:
/s/ [Illegible]
- ---------------------------------
(SIGNATURE)
ASSISTANT SECRETARY
- ---------------------------------
(TITLE: SECRETARY,
ASSISTANT SECRETARY, ETC.)
(CORPORATE SEAL)
INSTRUCTIONS FOR COMPLETING FORM:
Where this form is executed by an unincorporated body which has registered
its name pursuant to statute (sec 19 Pa. Code Section 17.101 et. seq.) the
language of the form should be modified accordingly, and a seal need be
affixed only where the unincorporated body has adopted a seal.
3-1-77:11
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
ARTICLES OF INCORPORATION
In compliance with the requirements of the Business Corporation Law,
approved the 5th day of May, A.D. 1933, P.L. 364, as amended, the undersigned,
who is of full age, desiring that he may be incorporated as a business
corporation, does hereby certify:
1. The name of the corporation is:
CHEMICAL LEAMAN CORPORATION
2. The location and post office address of its initial registered office in
this Commonwealth is:
506 East Lancaster Avenue
Downingtown, Pennsylvania 19335
3. The purpose or purposes of the corporation which shall be organized
under this Act are as follows:
To engage in and do any lawful act concerning all lawful business for
which corporations may be incorporated under the Business Corporation Law
of Pennsylvania including, without limiting the generality of the
foregoing, manufacturing, and to do all things and exercise all powers,
rights and privileges which a business corporation may now or hereafter be
organized or authorized to do or to exercise under the Business Corporation
Law of the Commonwealth of Pennsylvania.
4. The term of its existence is: Perpetual.
5. The aggregate number of shares which the Corporation shall have
authority to issue is Three Million Five Hundred Thousand (3,500,000) shares of
which Five Hundred Thousand (500,000) shares shall be shares of Preferred Stock
without par value and Three Million (3,000,000) shares shall be shares of Common
Stock with a par value of Two Dollars and Fifty Cents ($2.50) per share.
The voting rights, designations, preferences, qualifications, privileges,
limitations, restrictions, options, conversion rights of the classes of stock
of the Corporation which are fixed by these Articles of Incorporation, and which
may be fixed by the Board of Directors are as follows:
(a) Preferred Stock to Be Issued in Series. The Preferred Stock may be
issued from time to time in one or more series of any number of shares;
provided that the aggregate number of shares issued and not cancelled of any
and all such series shall not exceed the total number of shares of Preferred
Stock hereinabove authorized. Each series of Preferred Stock shall be
distinctively designated by letter or descriptive words. All series of
Preferred Stock shall rank equally and be identical in all respects except as
permitted by the provisions of paragraph (b) of this Article 5.
(b) Authority of Board of Directors. Authority is hereby vested in the
Board of Directors from time to time to issue the Preferred Stock as
Preferred Stock of any series and in connection with the creation of each
such series to fix by resolution or resolutions providing for the issue of
shares thereof the voting rights, if any, the designations, preferences,
qualifications, privileges, limitations, restrictions, options, conversion
rights, and other special and relative rights of such series to the full
extent now or hereafter permitted by these Articles of Incorporation
and the laws of the Commonwealth of Pennsylvania. The authority of the
Board with respect to each series shall include, but not be limited to,
determination of the following:
1. The distinctive designation of such series and the number of shares
which shall constitute such series, which number may be increased or
decreased (but not below the number of shares thereof then outstanding)
from time to time by action of the Board of Directors;
-2-
2. The dividend rate, if any, of such series, any preferences to or
provisions in relation to the dividends payable on any other class or
classes or of any other series of stock whether or not the dividends are
cumulative or non- cumulative, and any limitations, restrictions or
conditions on the payment of dividends;
3. Whether the shares of such series shall be subject to redemption
and, if such shares are subject to redemption, the price or prices at
which, and the terms and conditions on which, the shares of such series may
be redeemed by the Corporation;
4. Whether the shares of such series shall be entitled to the benefits
of a sinking fund to be applied to the purchase or redemption of shares of
such series and, if so entitled, the amount of such fund and the manner of
its application;
5. The amount or amounts payable upon the shares of such series in the
event of any liquidation, dissolution or winding up of the Corporation;
6. Whether the shares of such series shall be made convertible into,
or exchangeable for, shares of any other class or classes of stock of the
Corporation or shares of any other series of Preferred Stock, and, if made
so convertible or exchangeable, the conversion price or prices, or the rate
or rates of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and conditions of
such conversion or exchange;
7. Whether the shares of such series have any voting powers and, if
voting powers are so granted, the extent of such voting powers;
8. Whether the issue of any additional shares of such series or of any
future series in addition to such series shall be subject to restrictions
in addition to the restrictions, if any, on the issue of additional shares
imposed in the resolution or resolutions fixing the terms of any
outstanding series of Preferred Stock theretofore issued pursuant to this
Article 5 and, if subject to additional restrictions, the extent of such
additional restrictions; and
-3-
9. Any other relative rights, preferences and limitations of that
series.
(c) Voting Rights
1. Except as otherwise provided by law, or these Articles of
Incorporation or by the resolution or resolutions providing for the issue
of any series of Preferred Stock, the holders of shares of Preferred Stock,
as such holders, (a) shall not have any right to vote, and are hereby
specifically excluded from the right to vote, in the election of directors
or for any other purpose, and (b) shall not be entitled to notice of any
meeting of stockholders.
2. Subject to the provisions of any applicable law, or of the By-Laws
of the Corporation as from time to time amended, with respect to the
closing of the transfer books or the fixing of a record date for the
determination of stockholders entitled to vote and except as otherwise
provided by law, or by these Articles of Incorporation or by the resolution
or resolutions providing for the issue of any series of Preferred Stock,
the holders of outstanding shares of Common Stock shall exclusively possess
voting power for the election of directors and for all other purposes, each
holder of record of shares of Common Stock being entitled to one vote for
each share of Common Stock standing in his name on the books of the
Corporation; holders of Common Stock shall not be entitled to cumulate
their votes for the election of directors.
(d) Consideration for Shares. Subject to the provisions of these Articles
of Incorporation and except as otherwise provided by law, the shares of
Preferred Stock of the Corporation, regardless of class, may be issued for
such consideration and for such corporate purposes as the Board of Directors
may from time to time determine.
-4-
6. The name and address of the incorporator and the number and classes of shares
subscribed by him are:
NUMBER AND
NAME ADDRESS CLASS OF SHARES
---- ------- ---------------
David B. Harwi 38th Floor Center Sq. West 80 shares of
Philadelphia, PA 19102 Common Stock
IN TESTIMONY WHEREOF, the incorporator has signed and sealed these Articles
of Incorporation this 1st day of March, 1977.
/s/ David B. Harwi (SEAL)
-------------------------------
David B. Harwi
Approved and filed in the Department of State on the 2nd day of
March, 1977.
/s/ C. Delores Tucker
--------------------------------------
SECRETARY OF THE COMMONWEALTH
-5-
3-1-77:11
Commonwealth of Pennsylvania
[LOGO]
Department of State
To All to Whom These Presents Shall Come, Greeting:
Whereas, Under the provisions of the Business Corporation Law, approved the
5th day of May, Anno Domini one thousand nine hundred and thirty-three, P.L.
364, as amended, the Department of State is authorized and required to issue a
CERTIFICATE OF INCORPORATION
evidencing the incorporation of a business corporation organized under the terms
of that law, and
Whereas, The stipulations and conditions of that law have been fully
complied with by the persons desiring to incorporate as
CHEMICAL LEAMAN CORPORATION
Therefore, Know Ye, That subject to the Constitution of this Commonwealth
and under the authority of the Business Corporation Law, I do by these presents,
which I have caused to be sealed with the Great Seal of the Commonwealth,
create, erect, and incorporate the incorporators of and the subscribers to the
shares of the proposed corporation named above, their associates and successors,
and also those who may thereafter become subscribers or holders of the shares of
such corporation, into a body politic and corporate in deed and in law by the
name chosen hereinbefore specified, which shall exist perpetually and shall be
invested with and have and enjoy all the powers, privileges, and franchises
incident to a business corporation and be subject to all the duties,
requirements, and restrictions specified and enjoined in and by the Business
Corporation Law and all other applicable laws of this Commonwealth.
Given under my Hand and the Great Seal of the
Commonwealth, at the City of Harrisburg,
this 2nd day of March in the year of our
Lord one thousand nine hundred and
seventy-seven and of the Commonwealth
the two hundred and first
/s/ C. Delores Tucker
----------------------------------------
Secretary of the Commonwealth
as
DSCB-20 (7-75)
APPLICANT'S ACC'T NO.
DSCB: BCL-307 (Rev. 8-72)
31-08 701
---------------------------------------
(Line of numbering)
647190
COMMONWEALTH OF PENNYSLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
Filed this 26th day of January, 1981.
Commonwealth of Pennsylvania
Department of State
/s/ William R. Davis
- -----------------------------------
Secretary of the Commonwealth
(Box for Certification) as
Filing Fee: $40
AB-2
Statement of
Change of Registered
Office-Domestic
Business Corporation
In compliance with the requirements of section 307 of the Business
Corporation Law, act of May 5, 1933 (P.L. 364)(15 P.S. section 1307) the
undersigned corporation, desiring to effect a change in registered office, does
hereby certify that:
1. The name of the corporation is:
CHEMICAL LEAMAN CORPORATION
- --------------------------------------------------------------------------------
2. The address of its present registered office in this Commonwealth is (the
Department of State is hereby authorized to correct the following statement to
conform to the records of the Department):
506 East Lancaster Avenue
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Downingtown, Pennsylvania 19335
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The address to which the rgistered office in this Commonwealth is to be
changed is:
102 Pickering Way
Lionville, Pennsylvania 19353
4. Such change was authorized by resolution duly adopted by at least a majority
of the members of the board of directors of the corporation.
IN TESTIMONY WHEREOF, the undersigned corporation has caused this statement
to be signed by a duly authorized officer, and its corporate seal, duly attested
by another such officer, to be hereunto affixed, this 6th day of January, 1981
CHEMICAL LEAMAN CORPORATION
---------------------------------
(NAME OF CORPORATION)
By: /s/ [Illegible]
-----------------------------
(SIGNATURE)
PRESIDENT
------------------------------
(TITLE: PRESIDENT,
VICE PRESIDENT, ETC.)
Attest:
/s/ [Illegible]
- ---------------------------------
(SIGNATURE)
ASSISTANT SECRETARY
- ---------------------------------
(TITLE: SECRETARY,
ASSISTANT SECRETARY, ETC.)
(CORPORATE SEAL)
(PA. - 1858 - 12/5/73)
APPLICANT'S ACC'T NO.
DSCB: BCL-806 (Rev. 8-72)
84341340
---------------------------------------
(Line of numbering)
647190
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
Filed this 14th day of May, 1984
Commonwealth of Pennsylvania
Department of State
/s/ William R. Davis
- -----------------------------------
Secretary of the Commonwealth
(Box for Certification) as
Filing Fee: $40
AB-2
Articles of
Amendment-
Domestic Business Corporation
In compliance with the requirements of section 806 of the Business
Corporation Law, act of May 5, 1933 (P.L. 364)(15 P.S. section 1806), the
undersigned corporation, desiring to amend its Articles, does hereby certify
that:
1. The name of the corporation is:
CHEMICAL LEAMAN CORPORATION
- --------------------------------------------------------------------------------
2. The location of its registered office in this Commonwealth is (the Department
of State is hereby authorized to correct the following statement to conform to
the records of the Department):
102 Pickering Way
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Lionville Pennsylvania 19353
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The statute by or under which it was incorporated is:
Pennsylvania Business Corporation Law
- --------------------------------------------------------------------------------
4. The date of its incorporation is: March 2, 1997
-------------------------------------------
5. (Check, and if appropriate, complete one of the following):
/X/ The meeting of the shareholders of the corporation at which the amendment
was adopted was held at the time and place and pursuant to the kind and period
of notice herein stated.
Time: The 8th day of May 1984
---- ---------
Place: 102 Pickering Way, Lionville, PA 19353
--------------------------------------
Kind and period notice Written Notice at least 10 days prior to the Annual
----------------------------------------------------
Meeting of Shareholders
-----------------------
/ / The amendment was adopted by a consent in writing, setting forth the
action so taken, signed by all of the shareholders entitled to vote thereon and
filed with the Secretary of the corporation.
6. At the time of the action of shareholders:
(a) The total number of shares outstanding was:
1,225,041
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(b) The number of shares entitled to vote was:
1,225,041
--------------------------------------------------------------------------
DSCB:BCL--806 (Rev. 8-72)-2
7. In the action taken by the shareholders:
(a) The number of shares voted in favor of the amendment was:
1,018,404
-------------------------------------------------------------------------
(b) The number of shares voted against the amendment was:
25,354
-------------------------------------------------------------------------
8. The amendment adopted by the shareholders, set forth in full, is as follows:
"RESOLVED, that Corporation's Articles of Incorporation be amended so
as to add a new paragraph 7 which shall read as follows:
'7. Section 910 of the Pennsylvania Business Corporation Law
shall not be applicable to the Corporation.'"
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles
of Amendment to be signed by a duly authorized officer and its corporate seal,
duly attested by another such officer, to be hereunto affixed this 8th day of
May 1984.
Chemical Leaman Corporation
--------------------------------
Attest: (NAME OF CORPORATION)
/s/ Charles E. Fernald, Jr. By: /s/ S.F. Niness, Chairman
- -------------------------------------- --------------------------------
(SIGNATURE) (SIGNATURE)
Charles E. Fernald, Jr., Asst. Secy S.F. Niness, Chairman
- ------------------------------------- --------------------------------
(TITLE; SECRETARY, (TITLE: PRESIDENT,
ASSISTANT SECRETARY. ETC.) VICE PRESIDENT, ETC.)
(CORPORATE SEAL)
INSTRUCTIONS FOR COMPLETION OF FORM
A. Any necessary copies of Form DSCB: 17.2 (Consent to Appropriation of
Name) or Form DSCB:17.3 (Consent to Use of Similar Name) shall accompany
Articles of Amendment effecting a change of name.
B. Any necessary governmental approvals shall accompany this form.
C. Where action is taken by partial written consent pursuant to the
Articles, the second alternate of Paragraph 5 should be modified
accordingly.
D. If the shares of any class were entitled to vote as a class, the number
of shares of each class so entitled and the number of shares of all
other classes entitled to vote should be set forth in Paragraph 6(b).
E. If the shares any class were entitled to vote as a class, the number of
shares of such class and the number of shares of all other classes voted
for and against such amendment respectively should be set forth in
Paragraphs 7(a) and 7(b).
F. BCL section 807 (15 P.S. section 1807) requires that the corporation
shall advertise its intention to file or the filing of Articles of
Amendment. Proofs of publication of such advertising should not be
delivered to the Department, but should be filed with the minutes of the
corporation.
647190
Commonwealth of Pennsylvania
[SEAL]
Department of State
To All to Whom These Presents Shall Come, Greeting:
Whereas, In and by Article VIII of the Business Corporation Law, approved
the fifth day of May, Anno Domini one thousand nine hundred and thirty-three,
P.L. 364, as amended, the Department of State is authorized and required to
issue a
CERTIFICATE OF AMENDMENT
evidencing the amendment of the Articles of Incorporation of a business
corporation organized under or subject to the provisions of that Law, and
Whereas, The stipulations and conditions of that Law pertaining to the
amendment of Articles of Incorporation have been fully complied with by
CHEMICAL LEAMAN CORPORATION
Therefore, Know Ye, That subject to the Constitution of this Commonwealth
and under the authority of the Business Corporation Law, I do by these presents,
which I have caused to be sealed with the Great Seal of the Commonwealth, extend
the rights and powers of the corporation named above, in accordance with the
terms and provisions of the Articles of Amendment presented by it to the
Department of State, with full power and authority to use and enjoy such rights
and powers, subject to all the provisions and restrictions of the Business
Corporation Law and all other applicable laws of this Commonwealth.
Given under my Hand and the Great Seal of the
Commonwealth, at the City of Harrisburg,
this 14th day of May in the year of our
Lord one thousand nine hundred and
eight-four and of the Commonwealth
the two hundred and eighth.
/s/ William R. Davis
----------------------------------------
Secretary of the Commonwealth
Microfilm Number: 9265-1574 Filed with the Department of State on
--------- August 18, 1992
Entity Number 647190 /s/ [Illegible]
------- --------------------------------------
Secretary of the Commonwealth
STATEMENT WITH RESPECT TO SHARES-DOMESTIC BUSINESS CORPORATION
DSCB:15-1522 (Rev 89)
In compliance with the requirements of 15 Pa. C.S. section 1522(b)
(relating to statement with respect to shares), the undersigned corporation,
desiring to state the designation and voting rights, preferences, limitations,
and special rights, if any, of a class or series of its shares, hereby states
that:
1. The name of the corporation is: CHEMICAL LEAMAN CORPORATION
--------------------------------------------
2. (Check and complete one of the following):
- ---- The resolution amending the Articles under 15 Pa. C.S. section 1522(b)
(relating to divisions and determinations by the board), set forth in full,
is as follows:
XX The resolution amending the Articles under 15 Pa. C.S. section 1522(b) is
- --- set forth in full in Exhibit A attached hereto and made a part hereof.
3. The aggregate number of shares of such class or series established and
designated by (a) such resolution, (b) all prior statements, if any, filed
under 15 Pa. C.S. section 1522 or corresponding provisions of prior law
with respect thereto, and (c) any other provision of the Articles is
130 shares.
4. The resolution was adopted by the Board of Directors or an authorized
committee thereof on July 15, 1992.
5. (Check, and if appropriate complete, one of the following):
XX The resolution shall be effective upon the filing of this statement
-- with respect to shares in the Department of State.
-- The resolution shall be effective on
--------------------------------
IN TESTIMONY WHEREOF, the undersigned corporation has caused this
statement to be signed by a duly authorized officer thereof this 18th day of
August, 1992.
CHEMICAL LEAMAN CORPORATION
--------------------------------------------
(Name of Corporation)
BY: /s/ [Illegible]
----------------------------------------
(Signature)
TITLE:
-------------------------------------
M. BURR KEIM COMPANY PHILADELPHIA
1-800-533-8113
EXHIBIT A to
Statement With Respect to Shares
CHEMICAL LEAMAN CORPORATION ON
RESOLVED, that the Company be and it hereby is authorized and directed to
amend its Articles of Incorporation to provide for the designation of the
preferences, limitations and rights for one hundred thirty (130) shares of the
Company's Series A Preferred Stock, no par value as set forth in the Designation
Statement to Series A Preferred Stock ("Designation Statement") attached hereto
as Exhibit 1 ("Series A Preferred Stock").
EXHIBIT 1 to
Resolutions of the Board of Directors
July 15, 1992
CHEMICAL LEAMAN CORPORATTON
SERIES A PREFERRED STOCK
OF
CHEMICAL LEAMAN CORPORATION
SERIES A PREFERRED STOCK
1. Designation and Amount. The designation of this series of capital stock
shall be "series A Preferred Stock," no par value per share (the "Series A
Stock") of Chemical Leaman Corporation, a Pennsylvania corporation. (the
"Corporation"). The number of shares, powers, terms, conditions, designations,
preferences and privileges, relative, participating, optional and other special
rights, and qualifications, limitations and restrictions, if any, of the Series
A Stock shall be as set forth herein. The number of authorized shares of the
Series A Stock is 130.
2. Definitions. All capitalized terms used herein which are not defined
when first used, are defined in Section 10 hereof.
3. Ranking. No class or series of capital stock of the Corporation shall be
issued which shall be senior in priority in any way to the Series A Stock while
any of the shares thereof are issued and outstanding. The Corporation's shares
of Series A Stock shall rank, as to dividends and upon Liquidation, equally with
each other and (i) senior and prior to the Corporation's Common Stock, and (ii)
senior to, or on a parity with, classes or series of capital stock (other than
the Corporation's Common Stock) hereafter issued by the Corporation.
4. Dividends.
(a) General Dividend Rights. The Holder of each share of Series A Stock
shall be entitled to receive, before any dividends shall be declared by the
Board of Directors of the Corporation on the Common Stock or on any other
capital stock of the Corporation which is junior to the Series A Stock with
respect to dividends, out of funds which the Board of Directors determines, in
its sole discretion, to be legally available for that purpose, dividends in cash
at the rate of six percent (6%) of the Stated Value per share per annum, and no
more, accruing from the Issuance Date payable quarterly on such days as may be
determined by the Board of Directors in accordance with the terms hereof;
provided, however, that (i) no dividend on the Series A Stock shall be paid if
and to the extent such payment will cause
a default under the Senior Debt, and (ii) dividends on the Series A Stock shall
only be required to be paid in any quarter if and to the extent that the
Corporation realized net after-tax profits (before deduction for the payment of
Accrued Dividends on the Series A Stock) for the preceding fiscal quarter in
excess of the Accrued Dividends for such Dividend Period. For purposes of this
paragraph, net after-tax profits of the Corporation shall be as shown on the
Corporation's financial statements determined in accordance with generally
accepted accounting principles.
(b) Payment. Accrued Dividends for each Dividend Period shall be payable
on the next succeeding Dividend Payment Date, subject to the limitations set
forth above.
(c) Priority. Dividends on shares of Series A Stock shall be cumulative
from the Issuance Date (whether or not there shall be net profits or net assets
of the Corporation legally available for the payment of such dividends) so that,
if at any time Full Cumulative Dividends upon the Series A Stock to the end of
the last completed Dividend Period have not been paid or declared and a sum
sufficient for payment thereof set apart, then the amount of the deficiency in
such dividends must be fully paid (but without interest) or dividends in such
amount must be declared on the shares of the Series A Stock and a sum sufficient
for the payment thereof must be set apart for such payment before any dividend
shall be declared or paid or any other distribution ordered or made upon the
Common Stock or any other class or series of the Corporation's capital stock
which is junior to the Series A Stock with respect to dividends (other than a
dividend payable in Common Stock or other class or series of capital stock of
the Corporation) and before any sum or sums be set aside for or applied to the
mandatory redemption at the option of the holder of any shares of any Common
Stock or any other class or series of the Corporation's capital stock which is
junior to the Series A Stock with respect to dividends. All dividends declared
upon the Series A Stock shall be declared pro rata per share. No cash dividends
shall be declared, set apart for payment or paid in respect of any Dividend
Period on any class or series of capital stock of the Corporation which is on a
parity with the Series A Stock with respect to dividends if Accrued Dividends
for any prior Dividend Period have not been paid in full, unless cash dividends
shall likewise be or have been declared and set apart for payment on all shares
of Series A Stock at the time outstanding ratably with such other classes or
series in accordance with the sums which would otherwise be payable on such
shares if all dividends were declared and paid in full; but in no event to
exceed, with respect to the Series A Stock, the Accrued Dividends up to and
including the immediately preceding Dividend Payment Period. Holders of shares
of Series A Stock shall not be entitled to any dividends, whether payable in
cash, property or stock, in excess of the Full Cumulative Dividends at the rate
set forth above.
(d) Record Date. The Accrued Dividends paid on any Dividend Payment Date
shall be payable to the Holders of record of the series A Stock on the last day
of the Dividend Period immediately preceding such Dividend Payment Date.
(e) Partial Payment. If the entire amount of Accrued Dividends as of the
end of any Dividend Period cannot be paid on the Dividend Payment Date therefor,
the unpaid balance of the Accrued Dividends shall be paid on the succeeding
Dividend Payment Dates as, when and to the extent permitted by the terms hereof.
5. Liquidation Rights.
(a) General Liquidation Rights. With respect to rights on Liquidation,
the shares of Series A Stock. shall rank equally with each other and (i) senior
and prior to the Corporation's Common Stock, and (ii) senior to, or on a parity
with, classes or series of capital stock (other than the Corporation's Common
Stock) hereinafter issued by the Corporation.
(b) Priority Right. In the event of any Liquidation, the Holders of the
Series A Stock shall be entitled to receive out of the assets of the Corporation
legally available for distribution to its stockholders, whether from capital,
surplus or earnings, before any payment shall be made to the holders of Common
Stock or any other class or series of stock ranking on Liquidation junior to
such Series A Stock, an amount per share equal to the Stated Value, plus the
Accrued Dividends from the Issuance Date until the date of Liquidation.
(c) Partial Payment. If, upon any Liquidation,, the assets of the
Corporation available for distribution to its stockholders shall be insufficient
to pay the Series A Stockholders the full amount as to which each of them shall
be entitled, then the Series A Stockholders shall share ratably with all other
classes and series of capital stock of the Corporation which is on a parity with
the Series A Stock with respect to rights on Liquidation in any distribution of
assets according to the respective amounts which would be payable to them in
respect of the shares held upon such distribution if all amounts payable on or
with respect to such shares were paid in full.
6. Shareholder Right of Redemption.
(a) Redemption Right. At the request of the Holder or Holders of any of
the shares of Series A Stock then outstanding (individually, a "Requesting
Holder") made at any date after August 1, 2002 the Corporation shall redeem
(unless otherwise prevented by law), at the Redemption Price, all or any portion
of the Series A Stock owned of record by such Requesting Holder on the date of
receipt by the Corporation of a Redemption Notice from the Requesting Holder.
Each Requesting Holder who
desires to have any of the Series A Stock owned of record by such Requesting
Holder redeemed shall specify in a written notice to the Corporation the number
of shares which the Requesting Holder elects to redeem (a "Redemption Notice"),
in accordance with Section 6(c) hereof. The Corporation shall redeem (unless
otherwise prevented by law) the shares of Series A Stock being redeemed by each
Requesting Holder on the Redemption Date, which shall be no later than sixty
(60) days after the termination of the period within which Holders of Series A
Stock are permitted to send Redemption Notices (as set forth above), and the
Corporation shall promptly advise each Requesting Holder of such Redemption Date
or of the relevant facts applicable thereto preventing such redemption. At any
time on or after the Redemption Date, the Requesting Holder shall be entitled to
receive the Redemption Price for each of the shares of Series A Stock held by
such Holder upon actual delivery to the Corporation or its transfer agent of the
certificate(s) representing the shares to be redeemed.
(b) Cancellation of Shares. On and after the Redemption Date, all rights
of any Requesting Holder with respect to the shares of Series A Stock being
redeemed by the Requesting Holder pursuant to Section 6(a), except the right to
receive the Redemption Price per share of Series A Stock as hereinafter
provided, shall cease and terminate, and such shares of Series A Stock shall no
longer be deemed to be outstanding, whether or not the certificates representing
such shares have been received by the Corporation; provided, however, that if
the Corporation defaults in the payment of the Redemption Payment, the rights of
the Requesting Holder with respect to such shares of Series A Stock shall
continue until the Corporation cures such default.
(c) Redemption Notice. Each Requesting Holder shall send its Redemption
Notice pursuant to this Section 6 by first-class, certified mail, return receipt
requested, postage prepaid, to the Corporation at its principal place of
business to the attention of the President, or to any transfer agent of the
Corporation. The Corporation shall, within twenty (20) business days after the
receipt of the Redemption Notice, notify all other Series A Stockholders of the
request by a Requesting Holder for the redemption of Series A Stock (the
"Corporation Notice"). If any other Series A Stockholder desires to redeem all
or any portion of the Series A Stock owned of record by such Series A
Stockholder, each such Series A Stockholder shall send a Redemption Notice to
the Corporation postmarked within ten (10) Business Days after the receipt of
the Corporation Notice, and such Series A Stockholder shall be deemed to be a
Requesting Holder.
(d) Partial Redemption. If, on the Redemption Date, less than all the
shares of Series A Stock requested to be redeemed may be legally redeemed by the
Corporation, the redemption of such Series A Stock shall be pro rata based upon
the number of outstanding shares of Series A Stock then owned by
each Requesting Holder thereof, and any shares of Series A Stock not redeemed
shall be redeemed, at the Holder's election, on any date following such
Redemption Date on which the Corporation may lawfully redeem such shares. Upon
redemption of only a portion of the number of shares covered by a Series A Stock
Certificate, the Corporation shall issue and deliver to or upon the written
order of the Holder of such Series A Stock Certificate, at the expense of the
Corporation, a new certificate covering the number of shares of the Series A
Stock representing the unredeemed portion of the Series A Stock Certificate,
which new certificate shall entitle the Holder thereof to all the rights, powers
and privileges of a Holder of such shares.
(e) Payment. Payment of the Redemption Price by the Corporation shall be
in the form of a check of the Corporation payable to each Requesting Holder
mailed to the address of each such Requesting Holder as shown on the
Corporation's transfer books.
(f) No Sinking Fund. Shares of the Series A Stock are not subject to or
entitled to the benefit of any sinking fund.
(g) Redeemed Shares to be Cancelled. Series A Stock redeemed pursuant to
this Section 6 will be automatically cancelled and will not under any
circumstances be reissued, sold or transferred.
7. Corporation Right of Redemption.
(a) Redemption Right. The Series A Stock is subject to redemption by the
Corporation at its election in whole or in part at any time after the Issuance
Date for the Redemption Price.
(b) Payment. Payment of the Redemption Price by the Corporation shall be
in the form of a check of the Corporation payable to each Holder of Series A
Stock mailed to the address of each such Holder as shown on the Corporation's
transfer books.
(c) Partial Redemption. If less than all of the outstanding shares of
the Series A Stock are redeemed at any time, such redemption shall be in
integral multiples of $100,000 of Stated Value, plus all Accrued Dividends for
such shares, and shall be made pro rata among the Holders of the Series A Stock
based on the number of outstanding shares of Series A Stock held by each. If
fractional shares are so redeemed then the Redemption Price therefor shall be
the applicable percentage of the Stated Value and Accrued Dividends. In case
less than the total number of shares represented by a certificate are redeemed,
a new certificate representing the number of unredeemed shares will be issued to
the Holder thereof without cost to such Holder.
(d) Dividends After Redemption Date. No share of Series A Stock is
entitled to any dividends calculated after its Redemption Date, and on such
Redemption Date all rights of the Holder of such shares, as a stockholder of the
Corporation by reason of the ownership of such share, will cease, except the
right to receive the Redemption Price of such share upon presentation and
surrender of the certificate representing such share, and such share will not be
deemed to be outstanding after such Redemption Date; provided, however, that if
the Corporation defaults in the payment of the Redemption Payment, the rights of
the Holder of the Series A Stock to have been redeemed shall continue until the
Corporation cures such default.
(e) Notice of Redemption. The Corporation shall mail written notice of
each redemption of shares of Series A Stock stating the Redemption Date, the
Redemption Price and the manner of redemption by certified or registered mail,
return receipt requested, or by any national overnight delivery service, to each
Holder of the Series A Stock at the address for such Holder as shown on the
Corporation's transfer books, not less than ten (10) days prior to the
Redemption Date. Any such notice of redemption may be qualified or unqualified,
in which latter event, the Corporation will become obligated to redeem the total
principal amount of Series A Stock specified therein on the Redemption Date.
(f) Redeemed Shares to be Cancelled. Series A Stock redeemed pursuant to
this Section 7 will be automatically cancelled and will not under any
circumstances be reissued, sold or transferred.
8. Voting Rights.
(a) Except as otherwise required by law or as set forth in subsection
(b) below, the Holders of the Series A Stock shall have no voting power and no
right to notice of shareholders' meetings, and no owner or Holder of the Series
A Stock shall, as such a Holder, have the right to participate in any action of
any nature taken by the Corporation or the holders of Common Stock.
(b)(i) The Holders of a majority of the shares of the Series A Stock,
voting as a separate class, shall have the exclusive right to elect one Director
to the Board of Directors of the Corporation ("Preferred Director"), regardless
of any increase or decrease in the size of the Board of Directors. In any
election of the Preferred Director pursuant to this Section 8(b), each Holder
of the Series A Stock shall be entitled to one vote for each share of the Series
A Stock held. The exclusive voting right of the Holders of the Series A Stock,
contained in this Section 8(b), may be exercised at any annual or special
meeting of the Stockholders of the Corporation at which the Holders of the
Series A Stock shall elect the Preferred Director,
called as provided in accordance with the By-laws of the Corporation, including
written notice of such meeting to the Holders, or by written consent of such
Holders of the Series A Stock in lieu of a meeting. The Preferred Director
elected pursuant to this Section 8(b) shall serve from the date of his or her
election and qualification until his or her successors have been duly elected
and qualified.
(ii) A vacancy in the directorship to be elected by the Holders of
the Series A Stock, pursuant to Section 8(b)(i) hereof, may be filled only by
the vote at a meeting called in accordance with the By-laws of the Corporation,
including written notice of such meeting to the Holders, or written consent in
lieu of such meeting, of the Holders of at least a majority of the shares of
such Series A Stock.
9. Restrictions on Transferability of the Series A Stock. The Holders of
the Series A Stock shall not sell or offer to sell or transfer any of the shares
of Series A Stock or any interest therein without registration under the
Securities Act of 1933, as amended, and applicable state securities laws, or an
exemption from such registration that has been acknowledged by the Corporation,
after receipt of an opinion of counsel in form and substance and from counsel
reasonably satisfactory to the Corporation that such registration is not
required.
10. Definitions. As used herein, the following terms shall have the
corresponding meanings:
"Accrued Dividends" shall mean Full Cumulative Dividends to the date as
of which dividends on the Series A Stock are to be computed, less the
amount of all dividends paid upon the relevant share of Series A Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or
public holiday in the state where the principal executive office of the
Corporation is located.
"Dividend Payment Date" shall mean, as to each respective Dividend
Period, the day determined by the Corporation to be the day the Accrued
Dividends are paid, but in any event within 45 days after the expiration of
such Dividend Period.
"Dividend Period" shall mean each fiscal quarter or portion thereof
during which the relevant share of stock is outstanding.
"Full Cumulative Dividends" shall mean (whether or not in any Dividend
Period, or any part thereof, in respect of which such term is used there
shall have been net profits or net assets of the Corporation
legally available for the payment of such dividends) that amount which
shall be equal to dividends at the full rate fixed for the Series A Stock
as provided herein for the period of time elapsed from the Issuance
Date to the date as of which Full Cumulative Dividends are to be computed.
"Issuance Date" with respect to any share of Series A Stock shall mean
the date of first issuance of such share.
"Liquidation" shall mean a complete liquidation, dissolution or
winding-up of the affairs of the Corporation.
"Redemption Date" shall mean the date set forth for redemption of the
Series A Stock pursuant to Section 6 or section 7 hereof.
"Redemption Payment" shall mean the payment of the Redemption Price for
the shares of the Series A Stock redeemed on the Redemption Date.
"Redemption Price" shall mean the following redemption prices (expressed
as percentages of the Stated Value of the Series A Stock being redeemed),
plus all Accrued Dividends per share of Series A Stock being redeemed on
the Redemption Date:
Redemption Date Redemption Price
--------------- ----------------
On or prior to June 15, 1993 135%
June 16, 1993 through
June 15, 1994 130%
June 16, 1994 through
June 15, 1995 125%
June 16, 1995 through
June 15, 1996 120%
June 16, 1996 through
June 15, 1997 115%
June 16, 1997 through
June 15, 1998 110%
June 16, 1998 through
June 15, 1999 105%
June 16, 1999 and
thereafter 100%
"Requesting Holder" shall be as defined in Section 6 hereof.
"Senior Debt" shall mean any indebtedness of the Corporation, now or
hereafter incurred, to Corestates Bank, N.A., for itself or as agent, and
Associates
Commercial Corporation, or any other indebtedness for borrowed money to
commercial lenders.
"Series A Stockholders" or "Holders of the Series A Stock" or "Holder"
shall mean the registered owners of the shares of the Series A Stock as
shown on the Corporation's stock transfer books.
"Stated Value" shall mean, with respect to the Series A Stock, $20,000
per share.
11. Amendment and Waiver. No amendment, modification or waiver by the
Corporation (including any made by means of a merger) of any provision herein
(or of the percentage of Series A Stock required to approve such amendment,
modification or waiver) will be binding or effective without the prior written
consent of the Holder(s) of a majority of the Series A Stock outstanding at the
time such action is taken. Notwithstanding the foregoing, no such action may be
taken or effective without the prior written consent of the Holder(s) of at
least ninety percent (90%) of the Series A Stock then outstanding, which will:
(a) change the rate at which or the manner in which dividends are
calculated, or the time at which dividends become payable hereunder;
(b) change the provisions of Section 5 hereof regarding the liquidation
preference;
(c) change the provisions of Sections 6 and 7 hereof regarding
redemptions;
(d) change the percentage of Series A Stock required to approve any
change described in (a), (b) or (c) above.
No amendment, modification or waiver of any provision herein will extend to or
affect any obligation not expressly amended, modified or waived or impair any
right consequent thereon.
12. No Conversion. Series A Stock shall not be convertible into shares of
the Corporation's Common Stock or any other stock or securities of the
Corporation.
Microfilm Number Filed with the Department of State on
---------- --------
Entity Number: 647190 /s/ [Illegible]
------------ ----------------------------------------------
Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB:15-1915 (Rev 91)
In compliance with the requirements of 15 Pa.C.S. Section 1915 (relating
to articles of amendment), the undersigned business corporation, desiring
to amend its Articles, hereby states that:
1. The name of the corporation is: CHEMICAL LEAMAN CORPORATION
----------------------------------------------
-----------------------------------------------------------------------------
2. The address of this corporation's current registered office in this
Commonwealth and the county of venue is (the Department is hereby authorized
to correct the following address to conform to the records of the
Department):
102 Pickering Way Exton PA 19341-0200 Chester
-----------------------------------------------------------------------------
Number and Street City State Zip County
3. The statute by or under which it was incorporated is: Pennsylvania Business
------------------------
Corporation Law of 1988, as as amended.
-----------------------------------------------------------------------------
4. The original date of its incorporation is: March 2, 1977
-----------------------------------
5. (Check, and if appropriate, complete one of the following):
x The amendment shall be effective upon filing these Articles of Amendment
-- in the Department of State.
-- The amendment shall be effective on: at
-------------- ------------------
Date Hour
6. (Check one of the following):
x The amendment was adopted by the shareholders (or members) pursuant to
-- 15 Pa.C.S. Section 1914(a) and (b).
-- The amendment was adopted by the board of directors pursuant to
15 Pa.C.S. Section 1914(c).
7. (Check, and if appropriate, complete one of the following):
-- The amendment adopted by the corporation, set forth as follows:
x The amendment adopted by the corporation as set forth in full in
-- Exhibit A attached hereto and made a part hereof.
8. (Check if the amendment restates the Articles):
-- The restated Articles of Incorporation supersede the original Articles
and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles
of Amendment to be signed by a duly authorized officer thereof this 10th day
----
of September, 1994.
-----------------
CHEMICAL LEAMAN CORPORATION
--------------------------------------
(Name of Corporation)
BY: /s/ David M. Boucher
------------------------------------
(Signature)
TITLE: CHIEF FINANCIAL OFFICER
---------------------------------
EXHIBIT A to
Articles of Amendment of
Articles of Incorporation
CHEMICAL LEAMAN CORPORATION
The Articles of Incorporation of Chemical Leaman Corporation shall be
amended by adding a new paragraph 8, which new paragraph 8 shall be and read as
follows:
"8. Notwithstanding any provision in these Articles of
Incorporation to the contrary, on the effective date of this
Paragraph 8 each Two Hundred (200) shares of Common Stock
issued and outstanding on such date shall be converted into
one (1) share of Common Stock; provided, however, that
notwithstanding the provisions of this Article 8, the
authorized number of shares of Common Stock and the par value
thereof shall be and remain as set forth in Paragraph 5 of
these Articles of Incorporation, and not affected hereby."
Microfilm Number 9622 420 Filed with the Department of State on Mar 25 1996
-------- -----------
/s/ [Illegible]
Entity Number 647190 -------------------------------------------------
------ Secretary of the Commonwealth
ARTICLES OF MERGER-DOMESTIC BUSINESS CORPORATION
DSCB:15-1926 (Rev 90)
In compliance with the requirements of 15 Pa.C.S. ss. 1926 (relating to
articles of merger or consolidation), the undersigned business corporations,
desiring to effect a merger, hereby state that:
1. The name of the corporation surviving the merger is:
Chemical Leaman Corporation
----------------------------------------------------------------------------
----------------------------------------------------------------------------
2. (Check and complete one of the following):
X The surviving corporation is a domestic business corporation and the
-- (a) address of its current registered office in this Commonwealth or
(b) name of its commercial registered office provider and the county of
venue is (the Department is hereby authorized to correct the following
information to conform to the records of the Department):
(a) 102 Pickering Way Exton PA 19341 Chester
------------------------------------------------------------------------
Number and Street City State Zip County
(b) c/o:
-------------------------------------------------------------------
Name of Commercial Registered Office Provider County
-- For a corporation represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the corporation is
located for venue and official publication purposes.
The surviving corporation is a qualified foreign business corporation
under the laws of and the (a) address of its current
---------------
registered office in this Commonwealth or (b) name of its commerical
registered office provider and the county of venue is (the Department
is hereby authorized to correct the following information to conform
to the records of the Department):
(a) -------------------------------------------------------------------------
Number and Street City State Zip County
(b) c/o:
---------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider,
the county in (b) shall be deemed the county in which the corporation is
located for venue and official publication purposes.
--- The surviving corporation is a nonqualified foreign business corporation
incorporated under the laws of
-----------------------------------------------------------------------------
Number and Street City State Zip County
(PA.-1424-11/1/93)
DSCB:15-1926 (Rev 90)-2
3. The name and the address of the registered office in this Commonwealth or
name of its commercial registered office provider and the county of venue
of each other domestic business corporation and qualified foreign business
corporation which is a party to the plan of merger are as follows:
Name of Corporation Address of Registered Office or Name of Commercial Registered Office Provider County
CLC Merger Corp. 102 Pickering Way, Exton, PA 19341 Chester
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
4. (Check, and if appropriate complete, one of the following):
x The plan of merger shall be effective upon filing these Articles of Merger
-- in the Department of State.
The plan of merger shall be effective on at
-- -------------- -----------------
Date Hour
5. The manner in which the plan of merger was adopted by each domestic
corporation is as follows:
Name of corporation Manner of adoption
Chemical Leaman Corporation Unanimous written consent of Board and
Partial written consent of shareholders
CLC Merger Corp. Unanimous written consent of Board and
shareholders
7. (Check, and if appropriate complete, one of the following):
The plan of merger is set forth in full in Exhibit A attached hereto and
- -- made a part hereof.
x Pursuant to 15 Pa.C.S. section 1901 (relating to omission of certain
- -- provisions from filed plans) the provisions, if any, of the plan of merger
that amend or constitute the operative Articles of Incorporation of the
surviving corporation as in effect subsequent to the effective date of the
plan are set forth in full in Exhibit A attached hereto and made a part
hereof. The full text of the plan of merger is on file at the principal
place of business of the surviving corporation, the address of which is:
102 Pickering Way Exton PA 19341
- --------------------------------------------------------------------------------
Number and Street City State Zip
DSCB:15-1926 (Rev 90)-3
IN TESTIMONY WHEREOF, the undersigned corporation or each undersigned
corporation has caused these Articles of Merger to be signed by a duly
authorized officer thereof this 25th day of March, 1996.
CHEMICAL LEAMAN CORPORATION
-------------------------------------------
(Name of Corporation)
BY: /s/ David M. Boucher
---------------------------------------
(Signature)
David M. Boucher
TITLE: Senior Vice President
------------------------------------
CLC MERGER CORP.
-------------------------------------------
(Name of Corporation)
BY: /s/ David M. Boucher
---------------------------------------
(Signature)
David M. Boucher
TITLE: Vice President
------------------------------------
Microfilm Number Filed with the Department of State on
-------- May 16, 1996
Entity Number 647190 /s/ [Illegible]
------ ---------------------------------------------
Secretary of the Commonwealth
STATEMENT WITH RESPECT TO SHARES-DOMESTIC BUSINESS CORPORATION
DSCB:15-1522 (Rev 9C)
In compliance with the requirements of 15 Pa.C.S. section 1522(b) (relating
to statement with respect to shares), the undersigned corporation, desiring to
state the designation and voting rights, preferences, limitations, and special
rights, if any of a class or series of its shares, hereby states that:
1. The name of the corporation is: Chemical Leaman Corporation
------------------------------------------
--------------------------------------------------------------------------
2. (Check and complete one of the following):
- ---- The resolution amending the Articles under 15 Pa.C.S. section 1522(b)
(relating to divisions and determinations by the board), set forth in full,
is as follows:
XX The resolution amending the Articles under 15 Pa.C.S. section 1522(b) is
- --- set forth in full in Exhibit A attached hereto and made a part hereof.
3. The aggregate number of shares of such class or series established and
designated by (a) such resolution, (b) all prior statements, if any, filed
under 15 Pa.C.S. section 1522 or corresponding provisions of prior law
with respect thereto, and (c) any other provision of the Articles is
453 shares.
4. The resolution was adopted by the Board of Directors or an authorized
committee thereof on March 12, 1996
--------------
5. (Check, and if appropriate complete, one of the following):
XX The resolution shall be effective upon the filing of this statement
-- with respect to shares in the Department of State.
-- The resolution shall be effective on at
-------------- -----------------
Date Hour
IN TESTIMONY WHEREOF, the undersigned corporation has caused this
statement to be signed by a duly authorized officer thereof this 16th day of
May, 1996.
CHEMICAL LEAMAN CORPORATION
-------------------------------------------
(Name of Corporation)
BY: /s/ David M. Boucher
-------------------------------------------
(Signature)
TITLE: David M. Boucher, Senior Vice
President and CFO
------------------------------------------
M. BURR KEIM COMPANY PHILADELPHIA
1-800-533-8113
EXHIBIT A to
Statement With Respect to Shares
CHEMICAL LEAMAN CORPORATION
RESOLVED, the Company be and it hereby is, authorized and directed to amend
its Articles of Incorporation by the filing of a Statement with Respect to
Shares with the Secretary of State of the Commonwealth of Pennsylvania in order
to provide for the voting rights, designations, preferences, qualifications,
limitations, and special rights for one hundred fifty one (151) shares of the
Company's Series B Cumulative Convertible Preferred Stock, no par value, as set
forth in the Designation Statement attached hereto as Annex 1.
FURTHER RESOLVED, that the Company be and it hereby is, authorized and
directed to amend its Articles of Incorporation by the filing of a Statement
with Respect to Shares with the Secretary of State of the Commonwealth of
Pennsylvania in order to provide for the voting rights, designations,
preferences, qualifications, limitations, and special rights for three hundred
two (302) shares of the Company's Series C Preferred Stock, no par value, as set
forth in the Designation Statement attached hereto as Annex 1.
ANNEX 1
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
AND
SERIES C CUMULATIVE PREFERRED STOCK
OF
CHEMICAL LEAMAN CORPORATION
SERIES B CONVERTIBLE PREFERRED STOCK
1. Designation and Amount. The designation of this series of capital stock
shall be "Series B Cumulative Convertible Preferred Stock," no par value per
share (the "Series B Stock") of Chemical Leaman Corporation, a
Pennsylvania corporation (the "Corporation"). The number of shares, powers,
terms, conditions, designations, preferences and privileges, relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions, if any, of the Series B Stock shall be as set
forth herein. The number of authorized shares of the Series B Stock is 151.
2. Definitions. All capitalized terms used herein which are not defined
when first used, are defined in Section 11 hereof.
3. Ranking. Except for the shares of Series A Preferred Stock of the
Corporation, which shall be senior to the Series B Stock, no class or series of
capital stock of the Corporation shall be issued which shall be senior in
priority in any way to the Series B Stock while any of the shares thereof are
issued and outstanding. The Corporation's shares of Series B Stock shall rank,
as to dividends and upon Liquidation, (i) equally with each other, (ii) equally
with shares of the Corporation's Series C Preferred Stock (the "Series C
Stock"), (iii) senior and prior to the Corporation's Common Stock, and (iv)
senior to. or on a parity with, classes or series of capital stock (other than
the Corporation's Common Stock and Series A Preferred Stock) hereafter issued by
the Corporation.
4. Dividends.
(a) General Dividend Rights. The Holder of each share of Series B Stock
shall be entitled to receive, before any dividends shall be declared by the
Board of Directors of the Corporation on the Common Stock or on any other
capital stock of the Corporation which is junior to the Series B Stock with
respect to dividends, out of funds which the Board of Directors determines, in
its sole discretion, to be legally available for that purpose, dividends in cash
at the rate of six percent (6%) of the Series B Stated Value per share per annum
(or $360.00), and no more, accruing from the Series B Issuance Date payable
quarterly in arrears on such days as may be determined by the Board of Directors
in accordance with the terms hereof, provided, however, that no dividend on the
Series B Stock shall be paid if
and to the extent such payment will cause a default under the Senior Debt.
(b) Payment. Accrued Dividends on the Series B Stock for each Dividend
Period shall be payable on the Dividend Payment Date relating to such Dividend
Period, subject to the limitations set forth above.
(c) Priority. Dividends on shares of Series B Stock shall be cumulative
from the Series B Issuance Date (whether or not there shall be net profits or
net assets of the Corporation legally available for the payment of such
dividends) so that, if at any time Full Cumulative Dividends upon the Series B
Stock to the end of the last completed Dividend Period have not been paid or
declared and a sum sufficient for payment thereof set apart, then the amount of
the deficiency in such dividends must be fully paid (but without interest) or
dividends in such amount must be declared on the shares of the Series B Stock
and a sum sufficient for the payment thereof must be set apart for such payment
before any dividend shall be declared or paid or any other distribution ordered
or made upon the Common Stock or any other class or series of the Corporation's
capital stock which is junior to the Series B Stock with respect to dividends
(other than a dividend payable in Common Stock or other class or series of
capital stock of the Corporation) and before any sum or sums be set aside for or
applied to the mandatory redemption at the option of the holder of any shares of
any Common Stock or any other class or series of the Corporation's capital stock
which is junior to the Series B Stock with respect to dividends. All dividends
declared upon the Series B Stock shall be declared pro rata per share; provided
that no dividends shall be paid on any shares of Series B Stock unless
proportionate dividends are also paid on all shares of Series C Stock
outstanding at the time of payment. No cash dividends shall be declared, set
apart for payment or paid in respect of any Dividend Period on any class or
series of capital stock of the Corporation which is on a parity with the Series
B Stock with respect to dividends if Accrued Dividends for any prior Dividend
Period have not been paid in full, unless cash Dividends shall likewise be or
have been declared and set apart for payment on all shares of Series B Stock at
the time outstanding ratably with such other classes or series in accordance
with the sums which would otherwise be payable on such shares if all dividends
were declared and paid in full, but in no event to exceed, with respect to the
Series B Stock, the Accrued Dividends up to and including the immediately
preceding Dividend Payment Period. Holders of shares of Series B Stock shall not
be entitled to any dividends, whether payable in cash, property or stock, in
excess of the Full Cumulative Dividends at the rate set forth above.
(d) Record Date. The Accrued Dividends paid on any Dividend Payment Date
shall be payable to the Holders of record of the Series B Stock on the last day
of the Dividend Period relating to such Dividend Payment Date.
(e) Partial Payment. If the entire amount of Accrued Dividends as of the
end of any Dividend Period cannot be paid on the Dividend Payment Date therefor,
the unpaid balance of the Accrued Dividends shall be paid on the succeeding
Dividend Payment Dates as, when and to the extent permitted by the terms hereof.
5. Liquidation Rights.
(a) General Liquidation Rights. With respect to rights on Liquidation,
the shares of Series B Stock shall rank (i) equally with each other, (ii)
equally with shares of Series C Stock, (iii) senior and prior to the
Corporation's Common Stock, and (iv) senior to, or on a parity with, classes or
series of capital stock (other than the Corporation's Common Stock) hereafter
issued by the Corporation.
(b) Priority Right. In the event of any Liquidation, the Holders of the
Series B Stock shall be entitled to receive out of the assets of the Corporation
legally available for distribution to its shareholders, whether from capital,
surplus or earnings, before any payment shall be made to the holders of Common
Stock or any other class or series of stock ranking on Liquidation junior to
such Series B Stock, an amount per share equal to the Series B Stated Value,
plus the Accrued Dividends from the Series B Issuance Date until the date of
Liquidation.
(c) Partial Payment. If, upon any Liquidation, the assets of the
Corporation available for distribution to its shareholders shall be insufficient
to pay the Series B Shareholders the full amount and to which each of them shall
be entitled, then the Series B Shareholders shall share ratably with all other
classes and series of capital stock of the Corporation which is on a parity with
the Series B Stock with respect to rights on Liquidation in any distribution of
assets according to the respective amounts which would be payable to them in
respect of the shares held upon such distribution if all amounts payable on or
with respect to such shares were paid in full.
6. Shareholder Right to Require Redemption.
(a) Redemption Right. At the request of the Holder or Holders of any of
the shares of Series B Stock then outstanding (individually, a "Requesting
Series B Holder") made at any date after the tenth (10th) anniversary of the
Series B Issuance Date, the Corporation shall redeem (unless otherwise prevented
by law or by the terms of the Senior Debt), at the Series B Redemption Price,
all or any portion of the Series B Stock owned of record by such Requesting
Series B Holder on the date of receipt by the Corporation of a Series B
Redemption Notice from the Requesting Series B Holder. Each Requesting Series B
Holder who desires to have any of the Series B Stock owned of record by such
Requesting Series B Holder redeemed shall
specify in a written notice to the Corporation the number of shares which the
Requesting Series B Holder elects to redeem (a "Series B Redemption Notice"), in
accordance with section 6(c) hereof. The Corporation shall redeem (unless
otherwise prevented by law or by the terms of the Senior Debt) the shares of
Series B Stock being requested to be redeemed by each Requesting Series B Holder
on the Series B Redemption Date, which shall be no later than ninety (90) days
after the date on which the Corporation shall first receive a Requesting Series
B Holder's Series B Redemption Notice, and the Corporation shall promptly advise
each Requesting Series B Holder of such Series B Redemption Date or of the
relevant facts applicable thereto preventing such redemption At any time on or
after the Series B Redemption Date, the Requesting Series B Holder shall be
entitled to receive the Series B Redemption Price for each of the shares of
Series B Stock held by such Holder upon actual delivery to the Corporation or
its transfer agent of the certificate(s) representing the shares to be redeemed.
No Holder of Series B Stock may deliver to the Corporation a Series B Redemption
Notice, or request the redemption of any of such Holder's shares of Series B
Stock} in any manner whatsoever (except following the receipt of a Series B
Corporation Notice in accordance with the provisions of Section 6(c) hereof and
pursuant thereto) for a period of six (6) months following the delivery of a
Series B Redemption Notice to the Corporation pursuant to this Section 6(a).
(b) Cancellation of Shares. On and after the Series B Redemption Date,
ail rights of any Requesting Series B Holder with respect to the shares of
Series B Stock being redeemed pursuant to a Series B Redemption Notice delivered
by the Requesting Series B Holder pursuant to Section 6(a) except the right to
receive the Series B Redemption Price per share of Series B Stock as hereinafter
provided, shall cease and terminate, and such shares of Series B Stock shall no
longer be deemed to be outstanding, whether or not the certificates representing
such shares have been received by the Corporation; provided, however, that if
the Corporation defaults in the payment of the Series B Redemption Payment, the
rights of the Requesting Series B Holder to be redeemed shall continue until the
Corporation cures such default.
(c) Series B Redemption Notice. Each Requesting Series B Holder shall
send its Series B Redemption Notice pursuant to this Section 6 by first-class,
certified mail, return receipt requested, postage prepaid, by hand delivery, or
by recognized overnight courier, to the Corporation at its principal place of
business to the attention of the President, the Chief Financial Officer, or to
any transfer agent of the Corporation. The Corporation shall, within twenty (20)
business days after the receipt of the Series B Redemption Notice, notify all
other Series B Shareholders and all Series C Shareholders of the request by a
Requesting Series B Holder for the redemption of Series B Stock or the request
by a Series C Shareholder for the redemption of Series C Stock, as the case may
be (the "Series B
Corporation Notice"). If any Series B Shareholder thereafter desires to redeem
all or any portion of the Series B Stock owned of record by such Series B
Shareholder, each such Series B Shareholder shall send a Series B Redemption
Notice that shall be received by the Corporation within twenty (20) days after
the date of the Series B Corporation Notice, and such Series B Shareholder shall
be deemed to be a Requesting Series B Holder, In the event Series B Stock is to
be redeemed by the Corporation solely as a result of the Series B Stockholders'
receipt of a notice from the Corporation to the effect that shares of Series C
Stock are to be redeemed. the Series B Redemption Date shall be the same date as
the date that such shares of Series C Stock shall be redeemed.
(d) Partial Redemption. If, on the Series B Redemption Date, less than
all the shares of Series B Stock and Series C Stock (if any) requested to be
redeemed may (i) be legally redeemed by the Corporation or (ii) be redeemed
without causing a default under the Senior Debt, the redemption of such Series B
Stock and Series C Stock (if any) shall be pro rata based upon the number of
outstanding shares of Series B Stock and Series C Stock (if any) then owned by
each Requesting Series B Holder and each Series C Holder so requesting
redemption (as the case may be), and any shares of Series B Stock and Series C
Stock (if any) not redeemed shall be redeemed, at the holder's election, on any
date following such Series B Redemption Date on which the Corporation may
lawfully redeem such shares or may redeem such shares under the terms of the
Senior Debt (as the case may be). Upon redemption of only a portion of the
number of shares covered by a Series B Stock Certificate, the corporation shall
issue and deliver to or upon the written order of the Holder of such Series B
Stock Certificate, at the expense of the Corporation, a new certificate covering
the number of shares of the Series B Stock representing the unredeemed portion
of the Series B Stock Certificate, which new certificate shall entitle the
Holder thereof to all the rights, powers and privileges of a Holder of such
shares.
(e) Payment. Payment of the Series B Redemption Price by the corporation
shall be in the form of a check of the corporation payable to each Requesting
Series B Holder mailed to the address of each such Requesting Series B Holder as
shown on the Corporation's transfer books.
(f) No Sinking Fund. Shares of the Series B Stock are not subject to or
entitled to the benefit of any sinking fund.
(g) Redeemed Shares to be Canceled. Series B Stock redeemed pursuant to
this Section 6 will be automatically canceled and will not under any
circumstances be reissued, sold or transferred.
7. Corporation Right of Redemption.
(a) Redemption Right. The Series B Stock is subject to redemption by the
Corporation at its election in whole or in part at any time after the tenth
(lOth) anniversary of the Series B Issuance Date for the Series B Redemption
Price.
(b) Payment. Payment of the Series B Redemption Price by the Corporation
shall be in the form of a check of the Corporation payable to each Holder of
Series B Stock mailed to the address of each such Holder as shown on the
Corporation's transfer books.
(c) Partial Redemption. If less than all of the outstanding shares of
the Series B Stock are redeemed at any time, such redemption shall be in
integral multiples of $6,000 of Series B Stated Value, plus all Accrued
Dividends for such shares, and shall be made pro rata among the Holders of the
Series B Stock based on the number of outstanding shares of Series B Stock held
by each. If fractional shares are so redeemed then the Series B Redemption Price
therefor shall be the applicable percentage of the Series b Stated Value and
Accrued Dividends. In case less than the total number of shares represented by a
certificate are redeemed, a new certificate representing the number of
unredeemed shares will be issued to the Holder thereof without cost to such
Holder.
(d) Dividends After Series B Redemption Date. No share of Series B Stock
is entitled to any dividends calculated after its Series B Redemption Date, and
on such Series B Redemption Date all rights of the Holder of such shares, as a
shareholder of the Corporation by reason of the ownership of such share, will
cease, except the right to receive the Series B Redemption Price of such share
upon presentation and surrender of the certificate representing such share, and
such share will not be deemed to be outstanding after such Series B Redemption
Date; provided, however, that if the Corporation defaults in the payment of the
Series B Redemption Payment, the rights of the Holder of the Series B Stock to
have been redeemed shall continue until the Corporation cures such default.
(e) Notice of Redemption. The Corporation shall mail written notice of
each redemption of shares of Series B Stock stating the Series B Redemption
Date, the Series B Redemption Price and the manner of redemption by certified or
registered mail, return receipt requested, or by any national overnight delivery
service, to each Holder of the Series B Stock at the address for such Holder as
shown on the Corporation's transfer books, not less than ten (10) days prior to
the Series B Redemption Date. Any such notice of redemption may be qualified or
unqualified, in which latter event, the Corporation will become obligated to
redeem the total principal amount of Series B Stock specified therein on the
Series B Redemption Date.
(f) Redeemed Shares to be Canceled. Series B Stock redeemed pursuant to
this Section 7 will be automatically canceled and will not under any
circumstances be reissued, sold or transferred.
8. Conversion into Shares of Common Stock.
(a) The Holders of any shares of Series B Stock shall each have the
right, at any time and from time to time, to convert any of such shares of
Series B Stock into an equal number of fully paid and nonassessable shares of
Common Stock, subject to adjustment as set forth in Section 8(e) below.
(b) The Holders of any shares of Series B Stock may exercise the
conversion right pursuant to Section 8(a) hereof as to any shares thereof by
delivering to the Corporation during regular business hours, at the office of
any transfer agent of the Corporation for the Series B Stock, or at such other
place as may be designated by the Corporation, the certificate or certificates
for the shares to be converted, duly endorsed or assigned in blank or to the
Corporation (if required by it), accompanied by written notice stating that the
holder elects to convert such shares and stating the name or names (with
address) in which the certificate or certificates for the shares of Common Stock
are to be issued. Conversion shall be deemed to have been effected on the date
when the aforesaid delivery is made (the "Conversion Date"). As promptly as
practicable thereafter, the Corporation shall issue and deliver to or upon the
written order of such Holder, to the place designated by such Holder, a
certificate or certificates for the number of full shares of Common Stock to
which such Holder is entitled, and a check or cash in respect of (x) any
fractional interest in a Common Share as provided in Section 8(d) hereof and (y)
all Accrued Dividends which remain unpaid as of the Conversion Date. Each person
in whose name the certificate or certificates for shares of Common Stock are to
be issued shall be deemed to have become a shareholder of record on the
applicable Conversion Date unless the transfer books of the Corporation are
closed on that date, in which event he or she shall be deemed to have become a
shareholder of record on the next succeeding date on which the transfer books
are open. Upon conversion of only a portion of the number of shares covered by a
certificate representing shares of Series B Stock, surrendered for conversion,
the Corporation shall issue and deliver to or upon the written order of the
holder of the certificate so surrendered for conversion, at the expense of the
Corporation, a new certificate covering the number of shares of Series B Stock,
representing the unconverted portion of the certificate so surrendered, which
new certificate shall entitle the holder thereof to dividends on the shares of
Series B Stock, represented thereby to the same extent as if the certificate
theretofore covering such uncontroverted shares had not been surrendered for
conversion.
(c) No fractional shares of Common Stock or scrip shall be issued upon
conversion of shares of Series B Stock. If more than one share of Series B Stock
shall be surrendered for conversion at any one time by the same Holder, the
number of full shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of Series B Stock, so
surrendered. Instead of any fractional shares of Common Stock which would
otherwise be issuable upon conversion of any shares of Series B Stock, the
Corporation shall pay a cash adjustment in respect of such fractional interest
in an amount equal to the price paid for a share of Common Stock in the Event of
Conversion or Optional Event of Conversion (as the case may be) multiplied by
such fractional interest, or if a fixed dollar price per share is not paid, an
amount determined by the Board of Directors of the Corporation in good faith.
Fractional interests shall not be entitled to dividends, and the Holders of
fractional interests shall not be entitled to any rights as shareholders of the
Corporation in respect of such fractional interest.
(d) The number of shares of Common Stock to be issued upon conversion of
Series B Stock shall be subject to adjustment from time to time as follows:
(i) If, at any time after the Series B Issuance Date, the number of
shares of Common Stock outstanding is increased by a stock dividend payable
in shares of Common Stock or by a subdivision or split-up of shares of
Common Stock, then, following the record date fixed for the determination
of Holders of shares of Common Stock entitled to receive such stock
dividend, subdivision or split-up, the number of shares of Common Stock
issuable upon conversion shall be appropriately increased in proportion to
such increase in outstanding shares.
(ii) If, at any time after the Series B Issuance Date, the number of
shares of Common Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock then, following the record date for such
combination, the number of shares of Common Stock issuable upon Conversion
shall be appropriately decreased in proportion to such decrease in
outstanding shares.
(iii) In case, at any time after the Series B Issuance Date, of any
reclassification of the stock of the Corporation (other than a change in
par value or from par value to no par value or from no par value to par
value or as a result of a stock dividend or subdivision, split-up or
combination of shares), or the merger or consolidation of the Corporation
(other than a consolidation or merger in which the Corporation is the
continuing corporation and which does not result in an change in the shares
of Common Stock), each share of Series B Stock shall after such
reorganization, reclassification, merger or consolidation be (unless, in
the case of a merger or consolidation, such merger or consolidation
constitutes a Merger, Consolidation or Sale) convertible into the kind and
number of
shares of stock. or other securities or property of the Corporation or of
the Corporation resulting from such merger or consolidation to which the
Holder of the number of shares of Common Stock deliverable (immediately
prier to the time of such reorganization. reclassification, merger or
consolidation) upon conversion of such share would have been entitled upon
such reorganization, reclassification, merger or consolidation. The
provisions of this Section 8(e) shall similarly apply to successive
reorganizations, reclassifications, mergers or consolidations.
(e) The Corporation shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of
capital stock of the Corporation upon conversion of shares of Series B Stock;
provided, however, that the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in the issuance or
delivery of any certificate for such shares in a name other than that of the
Holder of the shares of Series B Stock in respect of which such shares are being
issued.
(f) The Corporation shall reserve and at all times from and after the
Series B Issuance Date keep reserved free from preemptive rights, out of its
authorized but unissued shares of Common Stock. solely for the purpose of
effecting the conversion of the shares of Series B Stock sufficient shares to
provide for the conversion of all outstanding shares of Series B Stock.
(g) All shares of Common Stock which may be issued in connection with
the conversion provisions set forth herein will, upon issuance by the
Corporation, be validly issued, fully paid and nonassessable with no personal
liability attaching to the ownership thereof and free from all taxes, liens or
charges with respect thereto.
(h) Once converted pursuant to the provisions hereof, shares of Series B
Stock so converted shall be canceled and not subject to reissuance, and such
converted shares shall, without any action on the part of the Corporation or the
shareholders of the Corporation, be eliminated from the authorized capital of
the Corporation.
(i) The Corporation shall give each Holder of Series B Stock at least
thirty (30) days prior written notice of the Corporation's intent to consummate
a Notice Event.
9. Voting Rights. Except as otherwise required by law, the Holders of the
Series B Stock shall have no voting power and no right to notice of
shareholders' meetings, and no owner or Holder of the Series B Stock shall, as
such a Holder, have the right to participate in any action of any nature taken
by the Corporation or the holders of Common Stock
10. Restrictions on Transferability of the Series B Preferred Stock; Right
of First Refusal.
(a) The Holders of the Series B Stock shall not Transfer (as defined in
Section 10(b) below) or offer to Transfer any of the shares of Series B Stock or
any interest therein without registration under the Securities Act of 1933, as
amended, and applicable state securities laws or an exemption from such
registration that has been acknowledged by the Corporation, after receipt of an
opinion of counsel in form and substance and from counsel reasonably
satisfactory to the Corporation that such registration is not required.
(b) (i) No Holder shall transfer, sell donate, pledge or otherwise
dispose of or encumber (collectively, "Transfer") any of his or her Series B
Stock except as provided in this Section 10(b).
(ii) In the event a Holder desires to Transfer all or any portion of
his or her Series B Stock now owned or hereafter acquired, such Holder (the
"Series B Transferor") shall first obtain a bona fide written offer which he or
she desires to accept (the "Offer") to purchase all (and not less than all) of
the Series B Stock which such Holder desires to transfer for a fixed cash price
(which may be payable over time) (the "Offered Series B Stock"). The Offer shall
set forth its date, the proposed price per share of Series B Stock represented
by the Offered Series B Stock, and the other terms and conditions upon which the
purchase is proposed to be made, as well as the name and address of the
prospective purchaser. The term prospective purchaser" as used herein shall mean
the prospective record owner or owners of the Offered Series B Stock and all
other persons and entities proposed to have a beneficial interest in the Offered
Series B Stock. The Series B Transferor shall transmit copies of the Offer to
the Corporation within seven (7) days after his or her receipt of the Offer.
Transmittal of the Offer to the Corporation by the Series B Transferor shall
constitute an offer by the Series B Transferor to sell all of the Offered Series
B Stock to the Corporation at the price and upon the terms set forth in the
Offer. For a period of thirty (30) days after the submission of the Offer to the
Corporation, the Corporation shall have the option, exercisable by written
notice to the Series B Transferor, to accept the Series B Transferor's offer as
to all (and only all) of the Offered Series B Stock at the price and (subject to
the following provisions of this Section 10(b)) upon the terms set forth in the
Offer. If the Corporation does not exercise its rights to purchase all of the
Offered Series B Stock within the period set forth in this Section, the rights
shall terminate; provided, however, that if the proposed Transfer to the
prospective purchaser is not consummated in accordance with the terms and
conditions of the Offer, the Series B Transferor shall not be entitled to
Transfer the Offered Series B Stock unless it is first reoffered to the
Corporation on the different terms and
conditions in accordance with the foregoing procedures of this Section.
Moreover, if the Offered Series B Stock is not Transferred to the prospective
purchaser pursuant to the terms and conditions of the Offer within a period of
ninety (90) days after a copy of the Offer is received by the Corporation, the
Offered Stock may not be Transferred pursuant to this Section until it has been
reoffered to the Corporation in accordance with the foregoing procedures of this
Section.
(iii) Settlement for the purchase of Offered Series B Stock by the
Corporation pursuant to this Section shall be made within thirty (30) days
following the date of exercise of the Corporation's option. All settlement, for
the purchase and sale of Offered Series B Stock shall, unless otherwise agreed
to by the Corporation and Series B Transferor, be held at the principal offices
of the Corporation during regular business hours. The precise date and hour of
settlement shall be fixed by the Corporation (within the time limits allowed by
the provisions of this Section) by notice in writing to the Series B Transferor
given at least five (5) days in advance of the settlement date specified. At
settlement, the Offered Series B Stock being sold shall be delivered by the
Series B Transferor to the Corporation. duly endorsed for transfer or with
executed stock powers attached, with any necessary documentary and transfer tax
stamps affixed by the Series B Transferor. In the event of the purchase of
Offered Series B Stock by the Corporation, the Corporation shall pay the
purchase price either (A) in cash or by check at settlement or (B) pursuant to
the payment terms set forth in the Offer.
(iv) In connection with, and as a condition of, permitting any
Transfer or delivery of stock certificates under this Section, the Corporation
may require the Series B Transferor to pay to it a sufficient sum to enable it
to pay, or to reimburse it for any payment made in respect of, any stamp tax or
other governmental charge in connection with such transfer or delivery.
(v) This Section shall not apply to a Transfer of Stock by a Holder
to such Holder's spouse, parents, siblings or lineal descendants of any such
persons or to a trust for the benefit of any of the foregoing.
11. Definitions. As used herein, the following terms shall have the
corresponding meanings:
"Accrued Dividends" shall mean Full Cumulative Dividends to the date as of
which dividends on the relevant series of stock are to be computed, less the
amount of all dividends paid upon the relevant share of such series of stock.
"Business Day" shall mean any day other than a Saturday, a Sunday or public
holiday in the state where the principal executive office of the Corporation is
located.
"Dividend Payment Date" shall mean, as to each respective Dividend Period,
the day on which the Accrued Dividends are paid, which shall be on the last day
of each such Dividend Period.
"Dividend Period" shall mean each fiscal quarter or portion thereof during
which the relevant share of the relevant series of stock is outstanding.
"Full Cumulative Dividends" shall mean (whether or not in any Dividend
Period, or any part thereof, in respect of which such term is used there shall
have been net profits or net assets of the Corporation legally available for the
payment of such dividends) that amount which shall be equal to dividends at the
full rate fixed for the relevant series of stock as provided herein for the
period of time elapsed from the relevant Issuance Date of such series of stock
to the date as of which Full Cumulative Dividends are to be computed.
"Liquidation" shall mean a complete liquidation, dissolution or winding-up
of the affairs of the Corporation.
"Notice Event" shall mean (a) the consummation of an underwritten public
offering of shares of Common Stock of the Corporation registered under the
Securities Act of 1933, as amended or (b) the merger or consolidation of the
Corporation into or with another corporation or the merger or consolidation of
any other corporation into or with the Corporation (in which consolidation or
merger the shareholders of the Corporation receive distributions of cash or
securities as a result of such consolidation or merger), or the sale or other
disposition of all or substantially all of the assets of the Corporation.
"Requesting Holder" shall be as defined in Section 6 hereof.
"Senior Debt" shall mean any indebtedness of the Corporation, now or
hereafter incurred, to Corestates Bank, N.A., for itself or as agent, and
Associates Commercial Corporation, or any other indebtedness for borrowed money
to commercial lenders.
"Series B Issuance Date" with respect to any share of Series B Stock shall
mean the date of first issuance of such share.
"Series B Redemption Date" shall mean the date set forth for redemption of
the Series B Stock pursuant to Section 6 or Section 7 hereof.
"Series B Redemption Payment" shall mean the payment of the Series B
Redemption Price for the shares of the Series B Stock redeemed on the Series B
Redemption Date.
"Series B Redemption Price" shall mean the Series B Stated Value of the
Series B Stock being redeemed, plus all Accrued Dividends per share of Series B
Stock being redeemed on the Series B Redemption Date.
"Series B Shareholders" or "Holders of the Series B Stock" or "Holder"
shall mean the registered owners of the shares of the Series B Stock as shown on
the Corporation's stock transfer books.
"Series B Stated Value" shall mean $6,000 per share.
"Series C Shareholders" shall mean the registered owners of the shares of
the Series C Stock as shown on the Corporation's stock transfer books.
12. Amendment and Waiver. No amendment, modification or waiver by the
Corporation (including any made by means of a merger) of any provision herein
(or of the percentage of Series B Stock required to approve such amendment,
modification or waiver) will be binding or effective without the prior written
consent of the Holder(s) of a majority of the Series B Stock outstanding at the
time such action is taken. Notwithstanding the foregoing, no such action may be
taken or shall be effective without the prior written consent of the Holder(s)
of at least ninety percent (90%) of the Series B Stock then outstanding to the
extent such action will:
(a) change the rate at which or the manner in which dividends are
calculated, or the time at which dividends become payable hereunder;
(b) change the provisions of Section 5 hereof regarding the liquidation
preference;
(c) change the provisions of Sections 6 and 7 hereof regarding
redemptions;
(d) change the percentage of Series B Stock required to approve any
change described in (a), (b) or (c) above.
No amendment, modification or waiver of any provision herein will extend to or
affect any obligation not expressly amended, modified or waived or impair any
right consequent thereon.
SERIES C PREFERRED STOCK
1. Designation and Amount. The designation of this series of capital stock
shall be "Series C Cumulative Preferred Stock," no par value per share (the
"Series C Stock") of Chemical Leaman Corporation, a Pennsylvania corporation
(the "Corporation"). The number of shares, powers, terms, conditions,
designations, preferences and privileges, relative, participating, optional and
other special rights, and qualifications, limitations and restrictions, if any,
of the Series C Stock shall be as set forth herein. The number of authorized
shares of the Series C Stock is 302.
2. Definitions. All capitalized terms used herein which are not defined
when first used, are defined in Section 11 hereof.
3. Ranking. Except for the shares of Series A Preferred Stock of the
Corporation, which shall be senior to the Series C Stock, no class or series of
capital stock of the Corporation shall be issued which shall be senior in
priority in any way to the Series C Stock while any of the shares thereof are
issued and outstanding. The Corporation's shares of Series C Stock shall rank,
as to Dividends and upon Liquidation, (i) equally with each other, (ii) equally
with shares of the Corporation's Series B Convertible Preferred Stock (the
"Series B Stock"), (iii) senior and prior to the Corporation's Common Stock, and
(iv) senior to, or on a parity with, classes or series of capital stock (other
than the Corporation's Common Stock and Series A Preferred Stock) hereafter
issued by the Corporation.
4. Dividends.
(a) General Dividend Rights. The Holder of each share of Series C Stock
shall be entitled to receive, before any dividends shall be declared by the
Board of Directors of the Corporation on the Common Stock or on any other
capital stock of the Corporation which is junior to the Series C Stock with
respect to dividends, out of funds which the Board of Directors determines, in
its sole discretion, to be legally available for that purpose, dividends in cash
at the rate of eight percent (8%) of the Series C Stated Value per share per
annum (or $480.00), and no more, accruing from the Series C Issuance Date
payable quarterly in arrears on such days as may be determined by the Board of
Directors in accordance with the terms hereof; provided, however, that no
dividend on the Series C Stock shall be paid if and to the extent such payment
will cause a default under the Senior Debt.
(b) Payment. Accrued Dividends on the Series C Stock for each Dividend
Period shall be payable on the Dividend Payment Date relating to such Dividend
Period, subject to the limitations set forth above.
(c) Priority. Dividends on shares of Series C Stock shall be cumulative
from the Series C Issuance Date (whether or not there shall be net profits or
net assets of the Corporation legally available for the payment of such
dividends) so that, if at any time Full Cumulative Dividends upon the Series C
Stock to the end of the last completed Dividend Period have not been paid or
declared and a sum sufficient for payment thereof set apart, then the amount of
the deficiency in such dividends must be fully paid (but without interest) or
dividends in such amount must be declared on the shares of the Series C Stock
and a sum sufficient for the payment thereof must be set apart for such payment
before any dividend shall be declared or paid or any other distribution ordered
or made upon the Common Stock or any other class or series of the Corporation's
capital stock which is junior to the Series C Stock with respect to dividends
(other than a dividend payable in Common Stock or other class or series of
capital stock of the Corporation) and before any sum or sums be set aside for or
applied to the mandatory redemption at the option of the holder of any shares of
any Common Stock or any other class or series of the Corporation's capital stock
which is junior to the Series C Stock with respect to dividends. All dividends
declared upon the Series C Stock shall be declared pro rata per share; provided
that no dividends shall be paid on any shares of Series C Stock unless
proportionate dividends are also paid on all shares of Series B Stock
outstanding at the time of payment. No cash dividends shall be declared, set
apart for payment or paid in respect of any Dividend Period on any class or
series of capital stock of the Corporation which is on a parity with the Series
C Stock with respect to dividends if Accrued Dividends for any prior Dividend
Period have not been paid in full, unless cash dividends shall likewise be or
have been declared and set apart for payment on all shares of Series C stock at
the time outstanding ratably with such other classes or series in accordance
with the sums which would otherwise be payable on such shares if all dividends
were declared and paid in full; but in no event to exceed, with respect to the
Series C Stock, the Accrued Dividends up to and including the immediately
preceding Dividend Payment Period. Holders of shares of Series C Stock shall not
be entitled to any dividends, whether payable in cash, property or stock, in
excess of the Full Cumulative Dividends at the rate set forth above.
(d) Record Date. The Accrued Dividends paid on any Dividend Payment Date
shall be payable to the Holders of record of the Series C Stock on the last day
of the Dividend Period relating to such Dividend Payment Date.
(e) Partial Payment. If the entire amount of Accrued Dividends as of the
end of any Dividend Period cannot be paid on the Dividend Payment Date therefor,
the unpaid balance of the Accrued Dividends shall be paid on the succeeding
Dividend Payment Dates as, when and to the extent permitted by the terms hereof.
5. Liquidation Rights.
(a) General Liquidation Rights. With respect to rights on Liquidation,
the shares of Series C Stock shall rank (i) equally with each other, (ii)
equally with shares of Series C Stock, (iii) senior and prior to the
Corporation's Common Stock, and (iv) senior to, or on a parity with, classes or
series of capital stock (other than the Corporation's Common Stock) hereafter
issued by the Corporation.
(b) Priority Right. In the event of any Liquidation, the Holders of the
Series C Stock shall be entitled to receive out of the assets of the Corporation
legally available for distribution to its shareholders, whether from capital,
surplus or earnings, before any payment shall be made to the holders of Common
Stock or any other class or series of stock ranking on Liquidation junior to
such Series C Stock, an amount per share equal to the Series C Stated Value,
plus the Accrued Dividends from the Series C Issuance Date until the date of
Liquidation.
(c) Partial Payment. If, upon any Liquidation, the assets of the
Corporation available for distribution to its shareholders shall be insufficient
to pay the Series C Shareholders the full amount and to which each of them shall
be entitled, then the Series C Shareholders shall share ratably with all other
classes and series of capital stock of the Corporation which is on a parity with
the Series C Stock with respect to rights on Liquidation in any distribution of
assets according to the respective amounts which would be payable to them in
respect of the shares held upon such distribution if all amounts payable on or
with respect to such shares were paid in full.
6. Shareholder Right to Require Redemption.
(a) Redemption Right. At the request of the Holder or Holders of any of the
shares of Series C Stock then outstanding (individually, a "Requesting Series C
Holder") made at any date after the tenth (10th) anniversary of the Series C
Issuance Date, the Corporation shall redeem (unless otherwise prevented by law
or by the terms of the Senior Debt), at the Series C Redemption Price, all or
any portion of the Series C Stock owned of record by such Requesting Series C
Holder on the date of receipt by the Corporation of a Series C Redemption Notice
from the Requesting Series C Holder. Each Requesting Series C Holder who desires
to have any of the Series C Stock owned of record by such Requesting Series C
Holder redeemed shall specify in a written notice to the Corporation the number
of shares which the Requesting Series C Holder elects to redeem (a "Series C
Redemption Notice"), in accordance with section 6(c) hereof. The Corporation
shall redeem (unless otherwise prevented by law or by the terms of the Senior
Debt) the shares of Series C Stock being requested to be redeemed by each
Requesting Series C Holder on the Series C Redemption Date, which shall be no
later
than ninety (90) days after the date on which the Corporation shall first
receive a Requesting Series C Holder's Series C Redemption Notice, and the
Corporation shall promptly advise each Requesting Series C Holder of such Series
C Redemption Date or of the relevant facts applicable thereto preventing such
redemption. At any time on or after the Series C Redemption Date, the Requesting
Series C Holder shall be entitled to receive the Series C Redemption Price for
each of the shares of Series C Stock held by such Holder upon actual delivery to
the Corporation or its transfer agent of the certificate(s) representing the
shares to be redeemed. No Holder of Series C Stock may deliver to the
Corporation a Series C Redemption Notice, or request the redemption of any of
such Holder's shares of Series C Stock in any manner whatsoever (except
following the receipt of a Series C Corporation Notice in accordance with the
provisions of Section 6(c) hereof and pursuant thereto) for a period of six (6)
months following the delivery of a Series C Redemption Notice to the Corporation
pursuant to this Section 6(a).
(b) Cancellation of Shares. On and after the Series C Redemption Date,
all rights of any Requesting Series C Holder with respect to the shares of
Series C Stock being redeemed pursuant to a Series C Redemption Notice delivered
by the Requesting Series C Holder pursuant to Section 6(a) except the right to
receive the Series C Redemption Price per share of Series C Stock as
hereinafter provided, shall cease and terminate, and such shares of Series C
Stock shall no longer be deemed to be outstanding, whether or not the
certificates representing such shares have been received by the Corporation;
provided, however, that if the Corporation defaults in the payment of the Series
C Redemption Payment, the rights of the Requesting Series C Holder to be
redeemed shall continue until the Corporation cures such default.
(c) Series C Redemption Notice. Each Requesting Series C Holder shall
send its Series C Redemption Notice pursuant to this Section 6 by first-class,
certified mail, return receipt requested, postage prepaid, by hand delivery, or
by recognized overnight courier, to the Corporation at its principal place of
business to the attention of the President, the Chief Financial Officer, or to
any transfer agent of the Corporation. The Corporation shall, within twenty (20)
business days after the receipt of the Series C Redemption Notice, notify all
other Series C Shareholders and all Series B Shareholders of the request by a
Requesting Series C Holder for the redemption of Series C Stock or the request
by a Series B Shareholder for the redemption of Series B Stock, as the case may
be (the "Series C Corporation Notice"). If any Series C Shareholder thereafter
desires to redeem all or any portion of the Series C Stock owned of record by
such Series C Shareholder, each such Series C Shareholder shall send a Series C
Redemption Notice that shall be received by the Corporation within twenty (20)
days after the date of the Series C Corporation Notice, and such Series C
Shareholder shall be deemed to be a Requesting Series C Holder.
In the event Series C Stock is to be redeemed by the Corporation solely as a
result of the Series C Stockholders, receipt of a notice from the Corporation to
the effect that shares of Series B Stock are to be redeemed, the Series C
Redemption Date shall be the same date as the date that such shares of Series B
Stock shall be redeemed.
(d) Partial Redemption. If, on the Series C Redemption Date, less than
all the shares of Series C Stock and Series B Stock (if any) requested to be
redeemed may (i) be legally redeemed by the Corporation or (ii) be redeemed
without causing a default under the Senior Debt, the redemption of such Series C
Stock and Series B Stock (if any) shall be pro rata based upon the number of
outstanding shares of Series C Stock and Series B Stock (if any) then owned by
each Requesting Series C Holder and each Series B Holder so requesting
redemption (as the case may be), and any shares of Series C Stock and Series B
Stock (if any) not redeemed shall be redeemed, at the holder's election, on any
date following such Series C Redemption Date on which the Corporation may
lawfully redeem such shares or may redeem such shares under the terms of the
Senior Debt (as the case may be). Upon redemption of only a portion of the
number of shares covered by a Series C Stock Certificate, the corporation shall
issue and deliver to or upon the written order of the Holder of such Series C
Stock Certificate, at the expense of the Corporation, a new certificate covering
the number of shares of the Series C Stock representing the unredeemed portion
of the Series C Stock Certificate, which new certificate shall entitle the
Holder thereof to all the rights, powers and privileges of a Holder of such
shares.
(e) Payment. Payment of the Series C Redemption Price by the corporation
shall be in the form of a check of the corporation payable to each Requesting
Series C Holder mailed to the address of each such Requesting Series C Holder as
shown on the Corporation's transfer books.
(f) No Sinking Fund. Shares of the Series C Stock are not subject to or
entitled to the benefit of any sinking fund.
(g) Redeemed Shares to be Canceled. Series C Stock redeemed pursuant to
this Section 6 will be automatically canceled and will not under any
circumstances be reissued, sold or transferred.
7. Corporation Right of Redemption.
(a) Redemption Right. The Series C Stock is subject to redemption by the
Corporation at its election in whole or in part at any time after the Series C
Issuance Date for the Series C Redemption Price.
(b) Payment. Payment of the Series C Redemption Price by the Corporation
shall be in the form of a check of the Corporation payable to each Holder of
Series C Stock mailed to the address of each such Holder as shown on the
Corporation's transfer books.
(c) Partial Redemption. If less than all of the outstanding shares of
the Series C Stock are redeemed at any time, such redemption shall be in
integral multiples of $6,000 of Series C Stated Value, plus all Accrued
Dividends for such shares, and shall be made pro rata among the Holders of the
Series C Stock based on the number of outstanding shares of Series C Stock held
by each. If fractional shares are so redeemed then the Series C Redemption Price
therefor shall be the applicable percentage of the Series C Stated Value and
Accrued Dividends. In case less than the total number of shares represented by a
certificate are redeemed, a new certificate representing the number of
unredeemed shares will be issued to the Holder thereof without cost to such
Holder.
(d) Dividends After Series C Redemption Date. No share of Series C Stock
is entitled to any dividends calculated after its Series C Redemption Date, and
on such Series C Redemption Date all rights of the Holder of such shares, as a
shareholder of the Corporation by reason of the ownership of such share, will
cease, except the right to receive the Series C Redemption Price of such share
upon presentation and surrender of the certificate representing such share, and
such share will not be deemed to be outstanding after such Series C Redemption
Date; provided, however, that if the Corporation defaults in the payment of the
Series C Redemption Payment, the rights of the Holder of the Series C Stock to
have been redeemed shall continue until the Corporation cures such default.
(e) Notice of Redemption. The Corporation shall mail written notice of
each redemption of shares of Series C Stock stating the Series C Redemption
Date, the Series C Redemption Price and the manner of redemption by certified or
registered mail, return receipt requested, or by any national overnight delivery
service, to each Holder of the Series C Stock at the address for such Holder as
shown on the Corporation's transfer books, not less than ten (10) days prior to
the Series C Redemption Date. Any such notice of redemption may be qualified or
unqualified, in which latter event, the Corporation will become obligated to
redeem the total principal amount of Series C Stock specified therein on the
Series C Redemption Date.
(f) Redeemed Shares to be Canceled. Series C Stock redeemed pursuant to
this Section 7 will be automatically canceled and will not under any
circumstances be reissued, sold or transferred.
8. Voting Rights. Except as otherwise required by law, the Holders of the
Series C Stock shall have no voting power and no right to notice of
shareholders' meetings, and no owner or Holder of the Series C Stock shall, as
such a Holder, have the right to participate in any action of any nature taken
by the Corporation or the holders of Common Stock.
9. Restrictions on Transferability of the Series C Preferred Stock;
Right of First Refusal.
(a) The Holders of the Series C Stock shall not Transfer (as defined in
Section 9(b) below) or offer to Transfer any of the shares of Series C Stock or
any interest therein without registration under the Securities Act of 1933, as
amended, and applicable state securities laws, or an exemption from such
registration that has been acknowledged by the Corporation, after receipt of an
opinion of counsel in form and substance and from counsel reasonably
satisfactory to the Corporation that such registration is not required.
(b) (i) No Holder shall transfer, sell, donate, pledge or otherwise
dispose of or encumber (collectively, "Transfer") any of his or her Series C
Stock except as provided in this Section 9(b).
(ii) In the event a Holder desires to Transfer all or any portion of
his or her Series C Stock now owned or hereafter acquired, such Holder (the
"Series C Transferor") shall first obtain a bona fide written offer which he or
she desires to accept (the "Offer") to purchase all (and not less than all) of
the Series C Stock which such Holder desires to transfer for a fixed cash price
(which may be payable over time) (the "Offered Series C Stock"). The Offer shall
set forth its date, the proposed price per share of Series C Stock represented
by the Offered Series C Stock, and the other terms and conditions upon which the
purchase is proposed to be made, as well as the name and address of the
prospective purchaser. The term "prospective purchaser" as used herein shall
mean the prospective record owner or owners of the Offered Series C Stock and
all other persons and entities proposed to have a beneficial interest in the
Offered Series C Stock. The Series C Transferor shall transmit copies of the
Offer to the Corporation within seven (7) days after his or her receipt of the
Offer. Transmittal of the Offer to the Corporation by the Series C Transferor
shall constitute an offer by the Series C Transferor to sell all of the Offered
Series C Stock to the Corporation at the price and upon the terms set forth in
the Offer. For a period of thirty (30) days after the submission of the Offer to
the Corporation, the Corporation shall have the option, exercisable by written
notice to the Series C Transferor, to accept the Series C Transferor's offer as
to all (and only all) of the Offered Series C Stock at the price and (subject to
the following provisions of this Section 9(b)) upon the terms set forth in the
Offer. If the Corporation does not exercise its
rights to purchase all of the Offered Series C Stock within the period set forth
in this Section, the rights shall terminate; provided, however, that if the
proposed Transfer to the prospective purchaser is not consummated in accordance
with the terms and conditions of the Offer, the Series C Transferor shall not be
entitled to Transfer the Offered Series C Stock unless it is first reoffered to
the Corporation on the different terms and conditions in accordance with the
foregoing procedures of this Section. Moreover, if the Offered Series C Stock is
not Transferred to the prospective purchaser pursuant to the terms and
conditions of the Offer within a period of ninety (90) days after a copy of the
Offer is received by the Corporation, the Offered Stock may not be Transferred
pursuant to this Section until it has been reoffered to the Corporation in
accordance with the foregoing procedures of this Section.
(iii) Settlement for the purchase of Offered Series C Stock by the
Corporation pursuant to this Section shall be made within thirty (30) days
following the date of exercise of the Corporation's option. All settlements for
the purchase and sale of Offered Series C Stock shall, unless otherwise agreed
to by the Corporation and Series C Transferor, be held at the principal offices
of the Corporation during regular business hours. The precise date and hour of
settlement shall be fixed by the Corporation (within the time limits allowed by
the provisions of this Section) by notice in writing to the Series C Transferor
given at least five (5) days in advance of the settlement date specified. At
settlement, the Offered Series C Stock being sold shall be delivered by the
Series C Transferor to the Corporation, duly endorsed for transfer or with
executed stock powers attached, with any necessary documentary and transfer tax
stamps affixed by the Series C Transferor. In the event of the purchase of
Offered Series C Stock by the Corporation, the Corporation shall pay the
purchase price either (A) in cash or by check at settlement or (B) pursuant to
the payment terms set forth in the Offer.
(iv) In connection with, and as a condition of, permitting any
Transfer or delivery of stock certificates under this Section, the Corporation
may require the Series C Transferor to pay to it a sufficient sum to enable it
to pay, or to reimburse it for any payment made in respect of, any stamp tax or
other governmental charge in connection with such transfer or delivery.
(v) This Section shall not apply to a Transfer of Stock by a Holder
to such Holder's spouse, parents, siblings or lineal descendants of any such
persons or to a trust for the benefit of any of the foregoing.
10. Definitions. As used herein, the following terms shall have the
corresponding meanings:
"Accrued Dividends" shall mean Full Cumulative Dividends to the date as of
which dividend; on the relevant series of stock are to be computed, less the
amount of all dividends paid upon the relevant share of such series of stock.
"Business Day" shall mean any day other than a Saturday, a Sunday or public
holiday in the state where the principal executive office of the Corporation is
located.
"Dividend Payment Date" shall mean, as to each respective Dividend Period,
the day on which the Accrued Dividends are paid, which shall be on the last day
of each such Dividend Period.
"Dividend Period" shall mean each fiscal quarter or portion thereof during
which the relevant share of the relevant series of stock is outstanding.
"Full Cumulative Dividends" shall mean (whether or not in any Dividend
Period, or any part thereof, in respect of which such term is used there shall
have been net profits or net assets of the Corporation legally available for the
payment of such dividends) that amount which shall be equal to dividends at the
full rate fixed for the relevant series of stock as provided herein for the
period of time elapsed from the relevant Issuance Date of such series of stock
to the date as of which Full Cumulative Dividends are to be computed.
"Liquidation" shall mean a complete liquidation, dissolution or winding-up
of the affairs of the Corporation.
"Requesting Holder" shall be as defined in Section 6 hereof.
"Senior Debt" shall mean any indebtedness of the Corporation, now or
hereafter incurred, to Corestates Bank, N.A., for itself or as agent, and
Associates Commercial Corporation, or any other indebtedness for borrowed money
to commercial lenders.
"Series B Shareholders" shall mean the registered owners of the shares of
the Series B Stock as shown on the Corporation's stock transfer books.
"Series C Issuance Date" with respect to any share of Series C Stock shall
mean the date of first issuance of such share.
"Series C Redemption Date" shall mean the date set forth for redemption of
the Series C Stock pursuant to Section 6 or Section 7 hereof.
"Series C Redemption Payment" shall mean the payment of the Series C
Redemption Price for the shares of the Series C Stock redeemed on the Series C
Redemption Date.
"Series C Redemption Price" shall mean the Series C Stated Value of the
Series C Stock being redeemed, plus all Accrued Dividends per share of Series C
Stock being redeemed on the Series C Redemption Date.
"Series C Shareholders" or "Holders of the Series C Stock" or "Holder"
shall mean the registered owners of the shares of the Series C Stock as shown on
the Corporation's stock transfer books.
"Series C Stated Value" shall mean, $6,000 per share.
11. Amendment and Waiver. No amendment, modification or waiver by the
Corporation (including any made by means of a merger) of any provision herein
(or of the percentage of Series C Stock required to approve such amendment,
modification or waiver) will be binding or effective without the prior written
consent of the Holder(s) of a majority of the Series C Stock outstanding at the
time such action is taken. Notwithstanding the foregoing, no such action may be
taken or shall be effective without the prior written consent of the Holder(s)
of at least ninety percent (90%) of the Series C Stock then outstanding to the
extent such action will:
(a) change the rate at which or the manner in which dividends are
calculated, or the time at which dividends become payable hereunder;
(b) change the provisions of Section 5 hereof regarding the liquidation
preference;
(c) change the provisions of Sections 6 and 7 hereof regarding
redemptions;
(d) change the percentage of Series C Stock required to approve any
change described in (a), (b) or (c) above.
No amendment, modification or waiver of any provision herein will extend
to or affect any obligation not expressly amended, modified or waived or impair
any right consequent thereon.
12. No Conversion. Series C Stock shall not be convertible into shares of
the Corporation's Common Stock or any other stock or securities of the
Corporation.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
APRIL 10, 1997
TO ALL WHOM THESE PRESENTS SHALL COME, GREETING:
CHEMICAL LEAMAN CORPORATION
I, Yvette Kane, Secretary of the Commonwealth of Pennsylvania do hereby
certify that the foregoing and annexed is a true and correct photocopy of
Articles of Incorporation and all Amendments
which appear of record in this department
IN TESTIMONY WHEREOF, I have hereunto
[SEAL] set my hand and caused the Seal of the
Secretary's Office to be affixed, the
day and year, above written.
/s/ Yvette, Kane
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Secretary of the Commonwealth