EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
of
ARCH CHEMICALS, INC.
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
ARCH CHEMICALS, INC.
ARTICLE I
The name of the Corporation shall be Arch Chemicals, Inc.
ARTICLE II
The purpose for which the Corporation is formed is to transact any or all
lawful business, not required to be specifically stated in these Articles of
Incorporation, for which corporations may be incorporated under the Virginia
Stock Corporation Act, as amended from time to time, and any legislation
succeeding thereto (the "VSCA").
All references herein to "Articles of Incorporation" shall mean these
Amended and Restated Articles of Incorporation, as subsequently amended or
restated in accordance herewith and with the VSCA.
ARTICLE III
The aggregate number of shares that the Corporation shall have authority to
issue shall be 10,000,000 shares of Preferred Stock, par value $1 per share
(hereinafter called "Preferred Stock"), and 100,000,000 shares of Common Stock,
par value $1 per share (hereinafter called "Common Stock").
The following is a description of each of such classes of stock, and a
statement of the preferences, limitations, voting rights and relative rights in
respect of the shares of each such class:
1. Authority to Fix Rights of Preferred Stock. The Board of
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Directors shall have authority, by resolution or resolutions, at any time
and from time to time to divide and establish any or all of the unissued
shares of Preferred Stock not then allocated to any series of Preferred
Stock into one or more series, and, without limiting the generality of the
foregoing, to fix and determine the designation of each such series, the
number of shares that shall constitute such series and the following
relative rights and preferences of the shares of each series so
established:
(a) The annual or other periodic dividend rate payable on shares
of such series, the time of payment thereof, whether such dividends
shall be cumulative or non-cumulative, and the date or dates from
which any cumulative dividends shall commence to accrue;
(b) the price or prices at which and the terms and conditions, if
any, on which shares of such series may be redeemed;
(c) the amounts payable upon shares of such series in the event
of the voluntary or involuntary dissolution, liquidation or winding-up
of the affairs of the Corporation;
(d) the sinking fund provisions, if any, for the redemption or
purchase of shares of such series;
(e) the extent of the voting powers, if any, of the shares of
such series;
(f) the terms and conditions, if any, on which shares of such
series may be converted into shares of stock of the Corporation of any
other class or classes or into shares of any other series of the same
or any other class or classes;
(g) whether, and if so the extent to which, shares of such series
may participate with the Common Stock in any dividends in excess of
the preferential dividend fixed for shares of such series or in any
distribution of the assets of the Corporation, upon a liquidation,
dissolution or winding-up thereof, in excess of the preferential
amount fixed for shares of such series; and
(h) any other preferences and relative, optional or other special
rights, and qualifications, limitations or restrictions of such
preferences or rights, of shares of such series not fixed and
determined by law or in this Article III.
2. Distinctive Designations of Series. Each series of Preferred
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Stock shall be so designated as to distinguish the shares thereof from the
shares of all other series. Different series of Preferred Stock shall not
be considered to constitute different voting groups of shares for the
purpose of voting by voting groups except as required by the VSCA or as
otherwise specified by the Board of Directors with respect to any series at
the time of the creation thereof.
3. Restrictions on Certain Distributions. So long as any shares of
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Preferred Stock are outstanding, the Corporation shall not declare and pay
or set apart for
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payment any dividends (other than dividends payable in Common Stock or
other stock of the Corporation ranking junior to the Preferred Stock as to
dividends) or make any other distribution on such junior stock if, at the
time of making such declaration, payment or distribution, the Corporation
shall be in default with respect to any dividend payable on, or any
obligation to redeem, any shares of Preferred Stock.
4. Redeemed or Reacquired Shares. Shares of any series of Preferred
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Stock that have been redeemed or otherwise reacquired by the Corporation
(whether through the operation of a sinking fund, upon conversion or
otherwise) shall have the status of authorized and unissued shares of
Preferred Stock and may be redesignated and reissued as a part of such
series (unless prohibited by the articles of amendment creating such
series) or of any other series of Preferred Stock. Shares of Common Stock
that have been reacquired by the Corporation shall have the status of
authorized and unissued shares of Common Stock and may be reissued.
5. Voting Rights. Subject to the provisions of the VSCA or of the
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Bylaws of the Corporation as from time to time in effect with respect to
the closing of the transfer books or the fixing of a record date for the
determination of shareholders entitled to vote, and except as otherwise
provided by the VSCA or in resolutions of the Board of Directors
establishing any series of Preferred Stock pursuant to the provisions of
paragraph 1 of this Article III, the holders of outstanding shares of
Common Stock of the Corporation shall exclusively possess voting power for
the election of directors and for all other purposes, with each holder of
record of shares of Common Stock of the Corporation being entitled to one
vote for each share of such stock standing in his name on the books of the
Corporation.
6. No Preemptive Rights. No holder of shares of stock of any class
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of the Corporation shall, as such holder, have any right to subscribe for
or purchase (a) any shares of stock of any class of the Corporation, or any
warrants, options or other instruments that shall confer upon the holder
thereof the right to subscribe for or purchase or receive from the
Corporation any shares of stock of any class, whether or not such shares of
stock, warrants, options or other instruments are issued for cash or
services or property or by way of dividend or otherwise, or (b) any other
security of the Corporation that shall be convertible into, or exchangeable
for, any shares of stock of the Corporation of any class or classes, or to
which shall be attached or appurtenant any warrant, option or other
instrument that shall confer upon the holder of such security the right to
subscribe for or purchase or receive from the Corporation any shares of its
stock of any class or classes, whether or not such securities are issued
for cash or services or property or by way of dividend or otherwise, other
than such right, if any, as the Board of Directors, in its sole discretion,
may from time to time determine. If the Board of Directors shall offer to
the holders of shares of stock of any class of the Corporation, or any of
them, any such shares of stock, options, warrants, instruments or other
securities of the Corporation, such offer shall not, in any way,
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constitute a waiver or release of the right of the Board of Directors
subsequently to dispose of other securities of the Corporation without
offering the same to said holders.
7. Control Share Acquisition Statute. The provisions of Article 14.1
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of the VSCA shall not apply to acquisitions of shares of any class of
capital stock of the Corporation.
8. Series A Participating Cumulative Preferred Stock. There is hereby
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established a series of the Corporation's authorized Preferred Stock, to be
designated as the "Series A Participating Cumulative Preferred Stock, par
value $1 per share." The designation and number, and relative rights,
preferences and limitations of the Series A Participating Cumulative
Preferred Stock, insofar as not already fixed by any other provision of the
Articles of Incorporation, shall be as follows:
SECTION 1. Designation and Number of Shares. The shares of such
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series shall be designated as "Series A Participating Cumulative
Preferred Stock" (the "Series A Preferred Stock"), par value $1 per
share. The number of shares initially constituting the Series A
Preferred Stock shall be 40,000; provided, however, that, if more than
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a total of 40,000 shares of Series A Preferred Stock shall be issuable
upon the exercise of Rights (the "Rights") issued pursuant to the
Rights Agreement dated as of January 29, 1999, between the Corporation
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent (the
"Rights Agreement"), the Board of Directors of the Corporation,
pursuant to Section 13.1-639 of the VSCA, shall direct by resolution
or resolutions that articles of amendment of the Articles of
Incorporation of the Corporation be properly executed and filed with
the State Corporation Commission of Virginia providing for the total
number of shares of Series A Preferred Stock authorized to be issued
to be increased (to the extent that the Articles of Incorporation then
permit) to the largest number of whole shares (rounded up to the
nearest whole number) issuable upon exercise of such Rights.
SECTION 2. Dividends or Distributions. (a) Subject to the
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prior and superior rights of the holders of shares of any other series
of Preferred Stock or other class of capital stock of the Corporation
ranking prior and superior to the shares of Series A Preferred Stock
with respect to dividends, the holders of shares of the Series A
Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors, out of the assets of the Corporation
legally available therefor, (i) quarterly dividends payable in cash on
the last day of each fiscal quarter in each year, or such other dates
as the Board of Directors of the Corporation shall approve (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or a fraction of a share of Series A
Preferred Stock, in the amount of $.01 per whole share (rounded to
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the nearest cent), less the amount of all cash dividends declared on
the Series A Preferred Stock pursuant to the following clause (ii)
since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A
Preferred Stock (the total of which shall not, in any event, be less
than zero) and (ii) dividends payable in cash on the payment date for
each cash dividend declared on the Common Stock in an amount per whole
share (rounded to the nearest cent) equal to the Formula Number (as
hereinafter defined) then in effect times the cash dividends then to
be paid on each share of Common Stock. In addition, if the Corporation
shall pay any dividend or make any distribution on the Common Stock
payable in assets, securities or other forms of non-cash consideration
(other than dividends or distributions solely in shares of Common
Stock), then, in each such case, the Corporation shall simultaneously
pay or make on each outstanding whole share of Series A Preferred
Stock a dividend or distribution in like kind equal to the Formula
Number then in effect times such dividend or distribution on each
share of the Common Stock. As used herein, the "Formula Number" shall
be 1,000; provided, however, that, if at any time after February 8,
1999, the Corporation shall (x) declare or pay any dividend on the
Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock, (y)
subdivide (by a stock split or otherwise) the outstanding shares of
Common Stock into a larger number of shares of Common Stock or (z)
combine (by a reverse stock split or otherwise) the outstanding shares
of Common Stock into a smaller number of shares of Common Stock, then,
in each such event, the Formula Number shall be adjusted to a number
determined by multiplying the Formula Number in effect immediately
prior to such event by a fraction, the numerator of which is the
number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that are outstanding immediately prior to such event
(and rounding the result to the nearest whole number); and provided
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further, that, if at any time after February 8, 1999, the Corporation
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shall issue any shares of its capital stock in a merger,
reclassification, or change of the outstanding shares of Common Stock,
then, in each such event, the Formula Number shall be appropriately
adjusted to reflect such merger, reclassification or change so that
each share of Preferred Stock continues to be the economic equivalent
of a Formula Number of shares of Common Stock prior to such merger,
reclassification or change.
(b) The Corporation shall declare a dividend or distribution on
the Series A Preferred Stock as provided in Section 2(a) immediately
prior to or at the same time it declares a dividend or distribution on
the Common Stock (other than a dividend or distribution solely in
shares of Common Stock); provided, however, that, in the event no
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dividend or distribution (other than a dividend or
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distribution in shares of Common Stock) shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date,
a dividend of $.01 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding
dividend or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original
issue of such shares of Series A Preferred Stock; provided, however,
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that dividends on such shares that are originally issued after the
record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall
begin to accrue and be cumulative from and after such Quarterly
Dividend Payment Date. Notwithstanding the foregoing, dividends on
shares of Series A Preferred Stock that are originally issued prior to
the record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend on the first
Quarterly Dividend Payment Date shall be calculated as if cumulative
from and after the last day of the fiscal quarter next preceding the
date of original issuance of such shares. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding.
(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared,
paid or distributed, or set aside for payment or distribution, on the
Common Stock, unless, in each case, the dividend required by this
Section 2 to be declared on the Series A Preferred Stock shall have
been declared.
(e) The holders of the shares of Series A Preferred Stock shall
not be entitled to receive any dividends or other distributions,
except as provided herein.
SECTION 3. Voting Rights. The holders of shares of Series A
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Preferred Stock shall have the following voting rights:
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(a) Each holder of Series A Preferred Stock shall be entitled to
a number of votes equal to the Formula Number then in effect, for each
share of Series A Preferred Stock held of record on each matter on
which holders of the Common Stock or shareholders generally are
entitled to vote, multiplied by the maximum number of votes per share
that any holder of the Common Stock or shareholders generally then
have with respect to such matter (assuming any holding period or other
requirement to vote a greater number of shares is satisfied).
(b) Except as otherwise provided in this Section 3 or by the
VSCA, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock shall vote together as one voting
group for the election of directors of the Corporation and on all
other matters submitted to a vote of shareholders of the Corporation.
(c) If, at the time of any annual meeting of shareholders at
which the election of directors is to be considered, the equivalent of
six quarterly dividends (whether or not consecutive) payable on any
share or shares of Series A Preferred Stock are in default, the number
of directors constituting the Board of Directors of the Corporation
shall be increased by two. In addition to voting together with the
holders of Common Stock for the election of other directors of the
Corporation, the holders of record of the Series A Preferred Stock,
voting as a single voting group, to the exclusion of the holders of
Common Stock, shall be entitled at said meeting of shareholders (and
at each subsequent annual meeting of shareholders), unless all
dividends in arrears have been paid or declared and set apart for
payment prior thereto, to vote for the election of two directors of
the Corporation, the holders of any Series A Preferred Stock being
entitled to cast a number of votes per share of Series A Preferred
Stock equal to the Formula Number. Until the default in payments of
all dividends that permitted the election of said directors shall
cease to exist, any director who shall have been so elected pursuant
to the next preceding sentence may be removed at any time, either with
or without cause, only by the affirmative vote of the holders of the
shares of Series A Preferred Stock at the time entitled to cast a
majority of the votes entitled to be cast for the election of any such
director at a special meeting of such holders called for that purpose,
and any vacancy thereby created may be filled by the vote of such
holders. If and when such default shall cease to exist, the holders of
the Series A Preferred Stock shall be divested of the foregoing
special voting rights, subject to revesting in the event of each and
every subsequent like default in payments of dividends. Upon the
termination of the foregoing special voting rights, the terms of
office of all persons who may have been elected directors pursuant to
said special voting rights shall forthwith terminate, and the number
of directors constituting the Board of Directors shall be reduced by
two. The voting rights granted by this Section 3(c) shall be in
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addition to any other voting rights granted to the holders of the
Series A Preferred Stock in this Section 3.
(d) Except as provided in this Section 3, in Section 11 or by the
VSCA, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for authorizing or taking any corporate action.
SECTION 4. Certain Restrictions. (a) Whenever quarterly
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dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock; provided that the Corporation may at any time redeem,
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purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding
up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
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respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock
of the Corporation unless the Corporation could, under paragraph (a)
of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
SECTION 5. Liquidation Rights. Upon the liquidation,
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dissolution or winding up of the Corporation, whether voluntary or
involuntary, no distribution shall be made (a) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount equal to the accrued and
unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, plus an amount equal to the greater of
(i) $.01 per whole share or (ii) an aggregate amount per share equal
to the Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Common Stock or (b) to the holders
of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
SECTION 6. Consolidation, Merger, etc. In case the Corporation
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shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash or any other property,
then, in any such case, the then outstanding shares of Series A
Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share equal to the Formula Number then in
effect times the aggregate amount of stock, securities, cash or any
other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is exchanged or changed. In the
event both this Section 6 and Section 2 appear to apply to a
transaction, this Section 6 will control.
SECTION 7. No Redemption; No Sinking Fund. (a) The shares of
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Series A Preferred Stock shall not be subject to redemption by the
Corporation or at the option of any holder of Series A Preferred
Stock; provided, however, that, subject to clause (a)(iv) of Section
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4, the Corporation may purchase or otherwise acquire outstanding
shares of Series A Preferred Stock in the open market or by offer to
any holder or holders of shares of Series A Preferred Stock.
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(b) The shares of Series A Preferred Stock shall not be subject
to or entitled to the operation of a retirement or sinking fund.
SECTION 8. Ranking. The Series A Preferred Stock shall rank
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junior to all other series of Preferred Stock of the Corporation,
unless the Board of Directors shall specifically determine otherwise
in fixing the powers, preferences and relative, participating,
optional and other special rights of the shares of such series and the
qualifications, limitations and restrictions of any such other series.
SECTION 9. Fractional Shares. The Series A Preferred Stock
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shall be issuable upon exercise of the Rights issued pursuant to the
Rights Agreement in whole shares or in any fraction of a share that is
one-thousandth (1/1,000) of a share or any integral multiple of such
fraction, which shall entitle the holder, in proportion to such
holder's fractional shares, to receive dividends, exercise voting
rights, participate in distributions and have the benefit of all other
rights of holders of Series A Preferred Stock. In lieu of fractional
shares, the Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Stock, may elect (a) to make
a cash payment as provided in the Rights Agreement for fractions of a
share other than one-thousandth (1/1,000) of a share or any integral
multiple thereof or (b) to issue depository receipts evidencing such
authorized fraction of a share of Series A Preferred Stock pursuant to
an appropriate agreement between the Corporation and a depository
selected by the Corporation; provided that such agreement shall
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provide that the holders of such depository receipts shall have all
the rights, privileges and preferences to which they are entitled as
holders of the Series A Preferred Stock.
SECTION 10. Reacquired Shares. Any shares of Series A Preferred
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Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock, undesignated
as to series, and may thereafter be reissued as part of a new series
of such Preferred Shares as permitted by the VSCA.
SECTION 11. Amendment. None of the powers, preferences and
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relative, participating, optional and other special rights of the
Series A Preferred Stock as provided herein or in the Articles of
Incorporation shall be amended in any manner that would alter or
change the powers, preferences, rights or privileges of the holders of
Series A Preferred Stock so as to affect such holders adversely
without the affirmative vote of the holders of more than 66-2/3% of
the outstanding shares of Series A Preferred Stock, voting as a single
voting
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group; provided, however, that no such amendment so approved by the
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holders of more than 66-2/3% of the outstanding shares of Series A
Preferred Stock shall be deemed to apply to the powers, preferences,
rights or privileges of any holder of shares of Series A Preferred
Stock originally issued upon exercise of a Right after the time of
such approval without the approval of such holder.
ARTICLE IV
1. The number of directors shall be as specified in the By-laws of
the Corporation but such number may be increased or decreased from time to
time in such manner as may be prescribed in the By-laws, provided that in
no event shall the number of directors exceed ten. In the absence of a By-
law specifying the number of directors, the number shall be eight.
Commencing with the 1999 annual meeting of shareholders (or by unanimous
written consent in lieu thereof), the Board of Directors shall be divided
into three classes, Class I, Class II, and Class III, as nearly equal in
number as possible. The initial term of each class of directors shall
expire at the annual meeting of shareholders to be held in the following
years: Class I - 2000; Class II - 2001; and Class III - 2002. At each
annual meeting of shareholders after the 1999 annual meeting of
shareholders, the successors to the class of directors whose term shall
then expire shall be identified as being of the same class of directors
they succeed and shall be elected to hold office for a term expiring at the
third succeeding annual meeting of shareholders. When the number of
directors is changed, any newly-created directorships or any decrease in
directorships shall be so apportioned among the classes by the Board of
Directors as to make all classes as nearly equal in number as possible;
provided, however, that no decrease in the number of directors shall
shorten or terminate the term of any incumbent director.
2. Subject to the rights of the holders of any Preferred Stock then
outstanding, directors may be removed only with cause and only by the
affirmative vote of at least 80 percent of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors ("Voting Stock"), voting together as
a single voting group.
3. Subject to the rights of the holders of any Preferred Stock then
outstanding and to any limitations set forth in the VSCA, newly-created
directorships resulting from any increase in the number of directors and
any vacancies in the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely (i) by the
Board of Directors or (ii) at an annual meeting of shareholders by the
shareholders entitled to vote on the election of directors. If the
directors remaining in office constitute fewer than a quorum of the Board,
they may fill the vacancy by the affirmative vote of a majority of the
directors remaining in office.
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4. Notwithstanding any other provision of the Articles of
Incorporation or any provision of law that might otherwise permit a lesser
vote, but in addition to any affirmative vote of the holders of any
particular voting group required by the VSCA, the Articles of Incorporation
or the terms of any Preferred Stock outstanding, the affirmative vote of at
least 80 percent of the voting power of the then outstanding Voting Stock,
voting together as a single voting group shall be required to alter, amend,
repeal or adopt any provision inconsistent with any provision of this
Article IV.
ARTICLE V
Except as expressly otherwise required in the Articles of Incorporation, an
amendment or restatement of the Articles of Incorporation requiring shareholder
approval shall be approved by a majority of the votes entitled to be cast by
each voting group that is entitled to vote on the matter, unless in submitting
any such amendment or restatement to the shareholders the Board of Directors
shall require a greater vote.
ARTICLE VI
1. Every person who is or was a director, officer or employee of the
Corporation, or who, at the request of the Corporation, serves or has
served in any such capacity with another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise shall be
indemnified by the Corporation against any and all liability and reasonable
expense that may be incurred by him in connection with or resulting from
any claim, action or proceeding (whether brought in the right of the
Corporation or any such other corporation, entity, plan or otherwise), in
which he may become involved, as a party or otherwise, by reason of his
being or having been a director, officer or employee of the Corporation, or
such other corporation, entity or plan while serving at the request of the
Corporation, whether or not he continues to be such at the time such
liability or expense is incurred, unless such person engaged in willful
misconduct or a knowing violation of the criminal law.
As used in this Article VI: (a) the terms "liability" and "expense"
shall include, but shall not be limited to, counsel fees and disbursements
and amounts of judgments, fines or penalties against, and amounts paid in
settlement by, a director, officer or employee; (b) the terms "director,"
"officer" and employee," unless the context otherwise requires, include the
estate or personal representative of any such person; (c) a person is
considered to be serving an employee benefit plan as a director, officer or
employee of the plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by, him to
the plan or, in connection with the plan, to participants in or
beneficiaries of the plan; (d) the term "occurrence" means any act or
failure to act, actual or alleged, giving rise to
a claim, action or
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proceeding; and (e) service as a trustee or as a member of a management or
similar committee of a partnership, joint venture or limited liability
company shall be considered service as a director, officer or employee of
the trust, partnership, joint venture or limited liability company.
The termination of any claim, action or proceeding, civil or criminal,
by judgment, settlement, conviction or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that a director, officer or
employee did not meet the standards of conduct set forth in this paragraph
1. The burden of proof shall be on the Corporation to establish, by a
preponderance of the evidence, that the relevant standards of conduct set
forth in this paragraph 1 have not been met.
2. Any indemnification under paragraph 1 of this Article VI shall be
made unless (a) the Board, acting by a majority vote of those directors who
were directors at the time of the occurrence giving rise to the claim,
action or proceeding involved and who are not at the time parties to such
claim, action or proceeding (provided there are at least five such
directors), finds that the director, officer or employee has not met the
relevant standards of conduct set forth in such paragraph 1, or (b) if
there are not at least five such directors, the Corporation's principal
Virginia legal counsel, as last designated by the Board as such prior to
the time of the occurrence giving rise to the claim, action or proceeding
involved, or in the event for any reason such Virginia counsel is unwilling
to so serve, then Virginia legal counsel mutually acceptable to the
Corporation and the person seeking indemnification, deliver to the
Corporation their written advice that, in their opinion, such standards
have not been met.
3. Expenses incurred with respect to any claim, action or proceeding
of the character described in paragraph 1 shall, except as otherwise set
forth in this paragraph 3, be advanced by the Corporation prior to the
final disposition thereof upon receipt of an undertaking by or on behalf of
the recipient to repay such amount if it is ultimately determined that he
is not entitled to indemnification under this Article VI. No security
shall be required for such undertaking and such undertaking shall be
accepted without reference to the recipient's final ability to make
repayment. Notwithstanding the foregoing, the Corporation may refrain
from, or suspend, payment of expenses in advance if at any time before
delivery of the final finding described in paragraph 2, the Board or
Virginia legal counsel, as the case may be, acting in accordance with the
procedures set forth in paragraph 2, find by a preponderance of the
evidence then available that the officer, director or employee has not met
the relevant standards of conduct set forth in paragraph 1.
4. No amendment or repeal of this Article VI shall adversely affect
or deny to any director, officer or employee the rights of indemnification
provided in this Article VI with respect to any liability or expense
arising out of a claim, action or proceeding based in whole or substantial
part on an occurrence the inception of which
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takes place before or while this Article VI, as set forth in these Amended
and Restated Articles of Incorporation, is in effect. The provisions of
this paragraph 4 shall apply to any such claim, action or proceeding
whenever commenced, including any such claim, action or proceeding
commenced after any amendment or repeal to this Article VI.
5. The rights of indemnification provided in this Article VI shall be
in addition to any rights to which any such director, officer or employee
may otherwise be entitled by contraction or as a matter of law.
6. In any proceeding brought by or in the right of the Corporation or
brought by or on behalf of shareholders of the Corporation, no director or
officer of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages with respect to any transaction,
occurrence or course of conduct, whether prior or subsequent to the
effective date of this Article VI, except for liability resulting from such
person's having engaged in willful misconduct or a knowing violation of the
criminal law or any federal or state securities law.
ARTICLE VII
In furtherance of, and not in limitation of, the powers conferred by
the VSCA, the Board of Directors is expressly authorized and empowered to
adopt, amend or repeal the Bylaws of the Corporation; provided, however,
that the Bylaws adopted by the Board of Directors under the powers hereby
conferred may be altered, amended or repealed by the Board of Directors or
by the shareholders having voting power with respect thereto, provided
further that, in the case of any such action by shareholders, the
affirmative vote of the holders of at least 80 percent of the voting power
of the then outstanding Voting Stock, voting together as a single voting
group, shall be required in order for the shareholders to alter, amend or
repeal any provision of the Bylaws or to adopt any additional Bylaw.
Notwithstanding any other provision of the Articles of Incorporation or any
provision of law that might otherwise permit a lesser vote, but in addition
to any affirmative vote of the holders of any particular voting group
required by the VSCA, the Articles of Incorporation or the terms of any
Preferred Stock outstanding, the affirmative vote of at least 80 percent of
the voting power of the then outstanding Voting Stock, voting together as a
single voting group, shall be required to alter, amend, repeal or adopt any
provision inconsistent with any of the provisions of this Article VII.
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