Exhibit 3.7
Form BCA-10.30 AMENDED AND RESTATED
(Rev. Jan. 1991) ARTICLES OF AMENDMENT File #5565-634-7
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George H. Ryan
Secretary of State FILED SUBMIT IN DUPLICATE
Department of Business Services ---------------------------------
This space for use by
DEC 23 1994 Secretary of State
- ----------------------------------------- Date 12-23-94
GEORGE H. RYAN Franchise Tax $
Remit payment in check or money SECRETARY OF STATE Filing Fee $100__
order, payable to "Secretary of State." Penalty
Approved:
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1. CORPORATE NAME: Gateway Western Railway Company
(Note 1)
2. MANNER OF ADOPTION:
The following amendment of the Articles of Incorporation was adopted
on December 21 . 1994 in the manner indicated below. ("X" one box
only)
[_] By a majority of the incorporators, provided no directors were named
in the articles of incorporation and no directors have been elected:
or by a majority of the board of directors, in accordance with Section
10.10, the corporation having issued no shares as of the time of
adoption of this amendment;
(Note 2)
[_] By a majority of the board of directors, in accordance with Section
10.15, shares having been issued by shareholder action not being
required for the adoption of the amendment;
(Note 3)
[_] By the shareholders, in accordance with Section 10.20, a resolution of
the board of directors having been duly adopted and submitted to the
shareholders. At a meeting of shareholders, not less than the minimum
number of votes required by statute and by the articles of
incorporation were voted in favor of the amendment;
(Note 4)
___
x By the shareholders, in accordance with Sections 10.20 and 7.10, a
--- resolution of the board of directors having been duly adopted
and submitted to the shareholders. A consent in writing has been
signed by shareholders having not less than the minimum number of
votes required by statute and by the articles of incorporation.
Shareholders who have not consented in writing have been given notice
in accordance with Section 7.10;
(Note 4)
___
by the shareholders, in accordance with Sections 10.20 and 7.10, a
____ resolution of the board of directors having been duly adopted and
submitted to the shareholders. A consent in writing has been signed by
all the shareholders entitled to vote on this amendment.
(Note 4)
(INSERT AMENDMENT)
(Any article being amended is required to be set forth in its entirety.)
(Suggested language for an amendment to change the corporate name is RESOLVED,
that the Articles of Incorporation be amended to read as follows:)
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(NEW NAME)
All changes other than name, include on page 2
(over)
Resolution
RESOLUTION
RESOLVED, that the third amendment to and restatement of the Articles of
Incorporation of the Corporation (as amended to date), as set forth in these
Third Amended and Restated Articles of Incorporation, is approved.
THIRD AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
GATEWAY WESTERN RAILWAY COMPANY
ARTICLE ONE is restated in its entirety as follows:
ARTICLE ONE: The name of the Corporation is Gateway Western Railway Company,
formerly CMW Acquisition Corp. The date of incorporation was September 6, 1989.
The name of the Corporation at the time of incorporation was CMW Acquisition
Corp. The Corporation's name was changed to Gateway Western Railway Company
pursuant to Articles of Amendment filed on January 10, 1990.
ARTICLE TWO is restated in its entirety as follows:
ARTICLE TWO: The name of the Corporation's registered agent is Thomas W.
Rissman. The address of the Corporation's registered office is 6 West Hubbard
Street, Suite 500, Chicago, Illinois 60610, located in Cook County.
ARTICLE THREE is restated in its entirety as follows:
ARTICLE THREE: The purpose or purposes for which the Corporation is organized
are to engage in any lawful act or actively for which corporations may be
organized under the Illinois Business Corporation Act of 1983, as amended (the
"Act").
ARTICLE FOUR is amended and restated in its-entirety as follows:
ARTICLE FOUR: The authorized capital stock of the Corporation is 220,000,000
shares of $0.001 par value Class A Common Stock (the "Class A Common Stock") and
198,000,000 shares of $0.001 par value Class B Common Stock (the "Class B Common
Stock") (Class A Common Stock and Class B Common Stock, together, the "Stock").
The preferences, qualifications, limitations, restrictions and the special
or relative rights in respect of the shares of each class are as follows:
1. Conversion upon Filing of Amendment. Upon the filing of these Third
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Amended and Restated Articles of Incorporation, each of the 9,600 shares of the
Company's $0.01 par value Class I Preferred Stock outstanding on the date of
filing will be converted into 1,600.096 shares of $0.001 par value Class A
Common Stock (rounded to the nearest whole integer) for an aggregate of
15,360,922 shares; each of the 175 shares of the Company's $0.01 par value Class
II Preferred Stock that was issued on July 31, 1990 (or relates to Preferred
Stock that was issued on that date) and is outstanding on the date of filing
will be converted into 15,190.126 shares of $0.001 par value Class A Common
Stock (rounded to the nearest whole integer) for an aggregate of 2,658,272
shares; each of the 175 shares of the Company's $0.01 par value Class 11
Preferred Stock that was issued on December 24, 1990 (or relates to Preferred
Stock that was issued on
that date) and is outstanding on the date of filing will be converted into
14,606.966 shares of $0.001 par value Class A Common Stock (rounded to the
nearest whole integer) for an aggregate of 2,556,219 shares; and each of the
485,000 shares of the Company's $0.01 par value Common Stock outstanding on the
date of filing will be converted into one share of the Company's $0.001 par
value Class A Common Stock for an aggregate of 485,000 shares.
2. No Cumulative Voting. Cumulative voting shall be denied.
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3. No Preemptive Rights. Preemptive rights shall be denied.
--------------------
4. General. Except as expressly provided in these Third Amended and
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Restated Articles of Incorporation, the Class A Common Stock and the Class B
Common Stock will be identical and will entitle the holders of the Class A
Common Stock and the Class B Common Stock to the same rights and privileges.
5. Voting Rights. The holders of Class A Common Stock will be entitled
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to one vote per share on all matters to be voted on by the Corporation's
shareholders, and except as otherwise required by law, the holders of Class B
Common Stock will have no right to vote their shares of Class B Common Stock on
any matters to be voted on by the Corporation's shareholders.
6. Dividends. When and as dividends are declared thereon, whether
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payable in cash, property or securities of the Corporation, the holders of Class
A Common Stock and the holders of Class B Common Stock will be entitled to
share, ratably according to the number of shares of Class A Common Stock or
Class B Common Stock held by them, in such dividends; provided that if dividends
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are declared which are payable in shares of Class A Common Stock or Class B
Common Stock, dividends will be declared which are payable at the same rate on
both classes of Common Stock, and the dividends payable in shares of Class A
Common Stock will be payable to holders of Class A Common Stock, and the
dividends payable in shares of Class B Common Stock will be payable to the
holders of Class B Common Stock.
7. Liquidation Rights. In the event of any liquidation, dissolution or
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winding up of the Corporation, whether voluntary or involuntary, the holders of
Class A Common Stock and Class B Common Stock shall be entitled to share,
ratably according to the number of shares of Class A Common Stock or Class B
Common Stock held by them, in the remaining assets of the Corporation available
for distribution to its shareholders.
8. Conversion of Class B Common Stock.
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(a) At any time and from time to time, each record holder of Class B
Common Stock will be entitled to convert any and all of the shares of such
holder's Class B Common Stock into the same number of shares of Class A
Common Stock at such holder's election; provided that each holder of Class
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B Common Stock shall only be entitled to convert any share or shares of
Class B Common Stock to the extent that after giving effect to such
conversion such holder or its affiliates shall not directly or indirectly
own, control or have power to vote a greater quantity of securities of any
kind issued by the Corporation than such holder and its affiliates are
permitted to own, control or have power to vote under any law or under any
regulation, rule or other requirement of any governmental authority at any
time applicable to such holder and its affiliates.
(b) Each conversion of shares of Class B Common Stock into shares of
Class A Common Stock will be effected by the surrender of the certificate
or certificates representing the shares to be converted at the principal
office of the Corporation (or such other office or agency of the
Corporation as the Corporation may designate by notice in writing to the
holder or holders of the Class B Common Stock) at any time during normal
business hours, together with a written notice by the holder of such Class
B Common Stock stating that such holder desires to convert the shares, or a
stated number of the shares, of Class B Common Stock represented by such
certificate or certificates into Class A Common Stock and that upon such
conversion such holder and its affiliates will not directly or indirectly
own, control or have the power to vote a greater quantity of securities of
any kind issued by the Corporation than such holders and its affiliates are
permitted to own, control or have the power to vote under any applicable
law, regulation, rule or other governmental requirement (and such statement
will obligate the Corporation to issue such Class A Common Stock). Such
conversion will be deemed to have been effected as of the close of business
on the date on which such certificate or certificates have been surrendered
and such notice has been received, and at such time the rights of the
holder of the converted Class B Common Stock as such holder will cease and
the person or persons in whose name or names the certificate or
certificates for shares of Class A Common Stock are to be issued upon such
conversion will be deemed to have become the holder or holders of record of
the shares of Class A Common Stock represented thereby.
(c) Promptly after such surrender and the receipt of such written
notice, the Corporation will issue and deliver in accordance with the
surrendering holder's instructions (i) the certificate or certificates for
the Class A Common Stock issuable upon such conversion and (ii) a
certificate representing any Class B Common Stock which was represented by
the certificate or certificates delivered to the Corporation in connection
with such conversion but which was not converted.
(d) If the Corporation in any manner subdivides or combines the
outstanding shares of one class of either Class A Common Stock or Class B
Common Stock, the outstanding shares of the other class will be
proportionately subdivided or combined.
(e) In the case of, and as a condition to, any capital reorganization
of, or any reclassification of the capital stock of, the Corporation (other
than a subdivision or combination of shares of Class A Common Stock or
Class B Common Stock into a greater or lesser number of shares (whether
with or without par value) or a change in the par value of Class A Common
Stock or Class B Common Stock or from par value to no par value, or from no
par value to par value) or in the case of, and as condition to, the
consolidation or merger of the Corporation with or into another corporation
(other than a merger in which the Corporation is the continuing corporation
and which does not result in any reclassification of outstanding shares of
Class A Common Stock or Class B Common Stock), each share of Class B Common
Stock shall be convertible into the number of shares of stock or other
securities or property receivable upon such reorganization,
reclassification, consolidation or merger by a holder of the number of
shares of Class A Common Stock of the Corporation into which such share of
Class B Common Stock was convertible immediately prior to such
reorganization, reclassification, consolidation or merger; and, in any such
case, appropriate adjustment shall be made in the application of the
provisions set forth in this Paragraph 8 of this
ARTICLE FOUR with respect to the rights and interests thereafter of the
holders of Class B Common stock to the end that the provisions set forth in
this Paragraph 8 of this ARTICLE FOUR (including provisions with respect to
the conversion rate) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other securities
or property thereafter deliverable upon the conversion of the shares of
Class B Common Stock.
(f) Shares of Class B Common Stock which are converted into shares of
Class A Common Stock as provided in these Third Amended and Restated
Articles of Incorporation shall not be reissued.
(g) The Corporation will at all times reserve and keep available out
of its authorized but unissued shares of Class A Common Stock or its
treasury shares, solely for the purpose of issue upon the conversion of the
Class B Common Stock as provided in this Paragraph 8 of this ARTICLE FOUR,
such number of shares of Class A Common Stock as shall then be issuable
upon the conversion of all then outstanding shares of Class B Common Stock
(assuming that all such shares of Class B Common Stock are held by persons
entitled to convert such shares into Class A Common Stock).
(h) The issuance of certificates for Class A Common Stock upon
conversion of Class B Common Stock will be made without charge to the
holders of such shares for any issuance tax in respect thereof or other
cost incurred by the Corporation in connection with such conversion and the
related issuance of Class A Common Stock. The Corporation will not close
its books against the transfer of Class B Common Stock or of Class A Common
Stock issued or issuable upon conversion of Class B Common Stock in any
manner which would interfere with the timely conversion of Class B Common
Stock.
ARTICLE FIVE is amended and restated in its entirety as follows:
ARTICLE FIVE: The number of shares issued at the time of the filing of these
Third Amended and Restated Articles of Incorporation (after giving effect to the
conversion referred to in Paragraph 1 of ARTICLE FOUR of these Third Amended and
Restated Articles of Incorporation) is as follows:
Class No. of Shares Issued
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Class A Common Stock 21,060,413
Class B Common Stock 0
The paid-in capital of the Corporation at the time of the filing of these
Third Amended and Restated Articles of Incorporation is $13,599,998.
ARTICLE SIX is restated in its entirety as follows:
ARTICLE SIX: The number of directors constituting the initial board of
directors of the Corporation is one and the name and address of the person who
is to serve as a director until the first annual meeting of shareholders or
until his successor be elected and qualified is:
Name Residential Address
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Mort Lowenthal 787 Seventh Avenue
New York, NY 10019-6016
ARTICLE SEVEN is restated in its entirety as follows:
ARTICLE SEVEN: The Corporation shall indemnify all directors and officers of the
Corporation to the fullest extent permitted by law.
ARTICLE EIGHT is restated in its entirety as follows:
ARTICLE EIGHT: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in these Third Amended and Restated Articles of
Incorporation in the manner now or hereafter prescribed by law and all rights
and powers conferred herein on shareholders and directors are subject to such
reservation.
ARTICLE NINE is restated in its entirety as follows:
ARTICLE NINE: Notwithstanding any provision of the Act now or hereafter in
force, or the By-Laws of the Corporation, any action that but for this Article
Nine would require the approval by the affirmative vote or consent of the
holders of two-thirds (2/3) of the outstanding shares of stock entitled to vote
thereon shall instead be approved upon the affirmative vote or consent of the
holders of a majority of the outstanding shares of stock entitled to vote
thereon.
ARTICLE TEN is restated in its entirety as follows:
ARTICLE TEN: The shareholders shall have the right to adopt new By-Laws and
amend, alter, change or repeal any provision contained in existing By-Laws in
the manner now or hereafter prescribed in law.
3. The manner in which any exchange. reclassification or cancellation of
issued shares. or a reduction of the number of authorized shares of any
class, below the number of issued shares of that class, provided for or
effected by this amendment. is as follows: (If not applicable, insert "No
change")
See Amendment.
4. (a) The manner in which said amendment effects a change in the amount of
paid-in capital (Paid-in capital replaces the terms Stated Capital and
Paid-in Surplus and is equal to the total of these accounts) is as follows:
(If not applicable, insert "No change")
No Change.
(b) The amount of paid-in capital (Paid-in Capital replaces the terms
Stated Capital and Paid-in Surplus and is equal to the total of these
accounts) as changed by this amendment is as follows: (If not applicable.
insert "No change")
No Change.
Before Amendment After Amendment
$_______________ $______________
Paid-in Capital
(Complete either Item 5 or 6 below)
5. The undersigned corporation has caused this statement to be signed by its
duly authorized officers, each of whom affirms, under penalties of perjury,
that the facts stated herein are true.
Gateway Western
Railway Company
Dated December 21, 1994 ------------------------------
----------- (Exact Name of Corporation)
attested by /s/ Thomas W. Rissman by /s/ J. Reilly McCarren
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(Signature of Secretary or Assistant
Secretary)
Thomas W. Rissman, Secretary J. Reilly McCarren, President
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(Type or Print Name and Title) (Type or Print Name and Title)
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6. If amendment is authorized by the incorporators, the incorporators must
sign below.
OR
If amendment is authorized by the directors and there are no officers, then
a majority of the directors or such directors as may be designated by the
board, must sign below.
The undersigned affirms, under the penalties of perjury, that the facts
stated herein are true.
Dated _________________________, 19____
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