Exhibit A-3
ARTICLES OF AMENDMENT AND RESTATEMENT
OF
AGL RESOURCES INC.
AGL RESOURCES INC., a Georgia corporation (the "Corporation"), prior to the
issuance of any of its shares, amends and restates its Articles of Incorporation
through the act of its directors, as follows:
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AGL RESOURCES INC.
I.
CORPORATE NAME
The name of the Corporation is: AGL Resources Inc. (hereinafter, the
"Corporation").
II.
AUTHORIZED SHARES
Section 2.01. Common Stock: The Corporation shall have authority to issue
not more than Seven Hundred Fifty Million (750,000,000) shares of Common Stock,
par value $5.00 per share (the "Common Stock"), which shall have unlimited
voting rights and be entitled to receive the net assets of the Corporation upon
dissolution.
Section 2.02. Preferred Stock: The Corporation shall have authority to
issue Ten Million (10,000,000) shares of Preferred Stock, with or without par
value, which may be of one or more series, with such voting power, preferences,
designations, rights, qualifications, limitations, or restrictions, and subject
to application dependent upon determination of facts ascertainable outside the
Articles of Incorporation, as the Board of Directors may from time to time
determine in the resolution and statement filed with the Secretary of State of
Georgia as an amendment to these Articles of Incorporation.
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Section 2.03. Class A Junior Participating Preferred Stock: The corporation
shall have the authority to issue 10,000,000 shares of Class A Junior
Participating Preferred Stock (the "Class A Preferred Stock"), with such voting
power, preferences, designations, rights, qualifications, limitations, or
restrictions as set forth below.
(1) Dividends: Subject to the rights of the holders of any shares of any
class or series of Preferred Stock of the Company (the "Preferred Stock")
ranking prior and superior to the Class A Preferred Stock with respect to
dividends, the holders of the Class A Preferred Stock, in preference to the
holders of Common Stock, and of any other stock of the Company ranking junior to
the Class A Preferred Stock, shall be entitled to receive, when, as and if
declared by the board of directors out of funds legally available for the
purpose, quarterly, dividends payable in cash on the last day of January, April,
July, and October in each year (each such date being referred to herein as a
"Dividend Payment Date"), commencing on the first Dividend Payment Date after
the first issuance of a share or fraction of a share of Class A Preferred Stock,
in an amount per share (rounded to the nearest cent) equal to the greater of One
Dollar ($1.00) or (b) subject to the provision for adjustment hereinafter set
forth, 100 times thee aggregate per share amount of all cash dividends and 100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock,
declared on the Common Stock since the immediately preceding Dividend Payment
Date or, with respect to the first dividend Payment Date, since the first
issuance of any share or fraction of a share of Class A Preferred Stock. In the
event the Company shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Class A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(2) Declaration of Dividends: The Company shall declare a dividend or
distribution on the Class A Preferred Stock as provided in paragraph (1) of this
Section immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock) provided that,
in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Dividend Payment Date and the next
subsequent Dividend Payment Date, a dividend of One Dollar ($1.00) per share on
the Class A Preferred shall nevertheless be payable, when, as and if declared,
on such subsequent Dividend Payment Date.
(3) Dividends to be Cumulative: Dividends shall begin to accrue and be
cumulative, whether or not earned or declared, on outstanding shares of Class A
Preferred Stock from the Dividend Payment Date next preceding the date of issue
of such shares, unless the date of issue of such shares is prior to the record
date for the first Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
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date of issue is a Dividend Payment Date or is a date after the record date for
the determination of holders of shares of Class A Preferred Stock entitled to
receive a quarterly dividend and before such Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative from such
Dividend Payment Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Class A Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of class A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof.
(4) Voting Rights: The holders of shares of Class A Preferred Stock shall
have the following voting rights:
(a) Subject to the provision for adjustment hereafter set forth and except
as otherwise provided in this Article or required by law, each share of Class A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters
upon which the holders of the Common Stock of the Company are entitled to vote.
In the event the Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Class A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein, in this Article or in any Articles
of Amendment of the Articles of Incorporation creating a class or series of
Preferred Stock or any similar stock, and except as otherwise provided by law,
the holders of shares of Class A Preferred Stock and any other capital stock of
the Company having general voting rights shall vote together as one class on all
matters submitted to a vote of shareholders of the Company.
(c) Except as set forth herein, or as otherwise provided by law, holders of
Class A Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
(5) Certain Restrictions: (a) Whenever quarterly dividends or other
dividends or distributions payable on the Class A Preferred Stock as provided in
subsection (2) are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not earned or declared, on shares of
Class A Preferred Stock outstanding shall have been paid in full, the Company
shall not:
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(i) declare or pay dividends, or make any other distributions, on any class
or series of stock ranking junior (as to dividends) to the Class A Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (as to dividends) with the Class A Preferred
Stock, except dividends paid ratably on the Class 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 junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Class A Preferred Stock, provided that the
Company may at any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the Company ranking junior
(as to dividends and upon dissolution, liquidation, or winding up) to the Class
A Preferred Stock or rights, warrants or options to acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for consideration any shares
of Class A Preferred Stock, or any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the Class A
Preferred Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(b) The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration, any shares of stock of the Company,
unless the Company could, under paragraph (5) of this section (C), purchase or
otherwise acquire such shares at such time and in such manner.
(6) Reacquired Shares: Any shares of Class A Preferred Stock purchased or
otherwise acquired by the company in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof.
(7) Liquidation, Dissolution or Winding Up: Upon any liquidation,
dissolution or winding up of the company, no distribution shall be made (I) to
the holders of the Common Stock or of shares of any other stock of the Company
ranking junior, upon liquidation, dissolution or winding up, to the Class A
Preferred Stock unless, prior thereto, the holders of sharers of Class A
Preferred Stock shall have received One Hundred Dollars ($100) per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not earned or declared, to the date of such payment, provided that
the holders of shares of Class A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provisions for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed per share
to holders of shares of common Stock, or (ii) to the holders of shares of stock
ranking on a parity upon liquidation, dissolution or winding up with the Class A
Preferred Stock, except
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distributions made ratably on the Class A Preferred Stock and all 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. In the event the
Company shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Class A Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(8) Consolidation, Merger, or Other Business Combinations: In case the
Company shall enter into any consolidation, merger, combination, share exchange
or other transaction in which the shares of Common Stock are converted into,
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Class A Preferred Stock shall at
the same time be similarly converted into, exchanged for or changed into an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which hor for which
each share of Common Stock is converted or exchanged. In the event the Company
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Class A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(9) No Redemption: The shares of Class A preferred Stock shall not be
redeemable from any holder.
(10) Rank: The Class A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Company, junior to all other classes and series
of Preferred Stock and senior to the Common Stock.
(11) Amendment: If any proposed amendment to these Articles of
Incorporation would alter, change or repeal any of the preferences, powers or
special rights given to the Class A Preferred Stock so as the affect the Class A
Preferred Stock in any manner specified in the Georgia Business Corporation
Code, Official Code of Georgia Section 14-2-1004, as now in effect or hereafter
amended, then the holders of the Class A Preferred Stock shall be entitled to
vote separately as a group upon such amendment, and the affirmative vote of
two-thirds of the
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outstanding shares of the Class A Preferred Stock, shall be necessary for the
adoption thereof, in addition to such other vote as may be required by the
Georgia Business Corporation Code.
III.
INITIAL REGISTERED OFFICE AND AGENT
The street address and county of the initial registered office of the
Corporation, which is also the mailing address of the initial principal office
of the Corporation, is 303 Peachtree Street, Suite 400, Atlanta, Fulton County,
Georgia 30308. The initial registered agent at such office shall be James S.
Thomas.
IV.
INCORPORATOR
The name and address of the incorporator is as follows:
Catherine Smith
c/o Long, Aldridge & Norman
303 Peachtree Street
Suite 5300
Atlanta, Georgia 30308
V.
DIRECTORS
Section 5.01. Size of Board: The business of the Corporation shall be
managed by or under the authority of a Board of Directors of not less than five
(5) nor more than fifteen (15) Directors, as may from time to time be fixed
solely by the Board of Directors.
Section 5 .02. Classification of Directors: The Board of Directors shall be
divided into three classes as nearly equal in number as possible, with the term
of office of one class expiring each year. Except as provided in Section 5.04
below, at the first annual meeting of shareholders, the Directors shall be
divided into three classes, as nearly equal in size as may be, with the
Directors of one class to be elected to hold office for a term expiring at the
third annual meeting following the election and until their successors shall
have been duly elected and qualified; with the Directors of the second class to
be elected to serve for a term expiring at the second annual meeting following
the election and until their successors shall have been duly elected and
qualified; and the Directors of the third class to be elected to serve for a
term expiring at the first annual meeting following the election and until their
successors shall have been duly elected and
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qualified. Thereafter, Directors shall be elected for terms of three years, and
until their successors have been duly elected and qualified. During the
intervals between annual meetings of shareholders, any vacancy occurring in the
Board of Directors caused by resignation, removal, death or other incapacity,
and any newly created Directorships resulting from an increase in the number of
Directors, shall be filled by a majority vote of the Directors then in office,
whether or not a quorum. Directors may be elected by Shareholders only at an
annual meeting of Shareholders. Each Director chosen to fill a vacancy shall
hold office for the unexpired term in respect of which such vacancy occurred.
Each Director chosen to fill a newly created Directorship shall hold office
until the next election of the class for which such Director shall have been
chosen. When the number of Directors is changed, any newly created Directorships
or any decrease in Directorships shall be so apportioned among the classes as to
make all classes as nearly equal in number as possible.
Section 5.03. Vacancies: If a vacancy occurs on the Board of Directors,
including a vacancy resulting from an increase in the number of Directors or
removal of a Director by Shareholders, the vacancy may be filled exclusively by
the Board of Directors, or, if the Directors remaining in office constitute
fewer than a quorum of the Board, by the affirmative vote of a majority of all
Directors remaining in office.
Section 5.04. Initial Board: The initial Board of Directors of the
Corporation shall consist of four members, and the name, address and initial
term of office of each member is set forth below:
The following Director shall hold office until the first Annual Meeting of
the Shareholders:
Thomas H. Benson, 303 Peachtree Street, N.E., Suite 400, Atlanta, Georgia
30308.
The following Director shall hold office until the second Annual Meeting of
Shareholders:
Robert L. Goocher, 303 Peachtree Street, N.E., Suite 400, Atlanta, Georgia
30308.
The following Directors shall hold office until the third Annual Meeting of
Shareholders:
David R. Jones, 303 Peachtree Street, N.E., Suite 400, Atlanta, Georgia
30308;
Charles W. Bass, 303 Peachtree Street, N.E., Suite 400, Atlanta, Georgia
30308.
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VI.
CONSIDERATIONS AVAILABLE TO THE BOARD OF DIRECTORS
In discharging the duties of their respective positions and in determining
what is believed to be in the best interests of the Corporation, the Board of
Directors, committees of the Board of Directors, and individual Directors, in
addition to considering the effects of any action on the Corporation or its
shareholders, may consider the interests of the employees, customers, suppliers
and creditors of the Corporation and its subsidiaries, the communities in which
offices or other establishments of the Corporation and its subsidiaries are
located, and all other factors the Directors consider pertinent.
VII.
LIMITATIONS ON DIRECTOR LIABILITY
No Director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of duty of care
or other duty as a Director, except for liability (1) for any appropriation, in
violation of his duties, of any business opportunity of the Corporation; (2) for
acts or omissions which involve intentional misconduct or a knowing violation of
the law; (3) for the types of liability set forth in Section 14-2-832 of the
Georgia Business Corporation Code (the "Code"); or (4) for any transaction from
which the Director received an improper personal benefit. If the Code is amended
after the effective date of this Article to authorize corporate action further
limiting the personal liability of Directors, then the liability of a Director
of the Corporation shall be limited to the fullest extent permitted by the Code,
as so amended. Any repeal or modification of the foregoing paragraph by the
shareholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such repeal
or modification.
VIII.
REPURCHASED SHARES
Shares of stock of the Corporation acquired by the Corporation shall
constitute treasury shares, unless the Board of Directors by resolution
otherwise provides.
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IX.
INDEMNIFICATION OF DIRECTORS
Section 9.01. Right to Indemnification: Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
derivative, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact he or she, or a person of whom he or she is
a legal representative, is or was a Director, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Code , as
the same exists or may hereafter be amended (but in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than the Code permitted the Corporation
to provide prior to such amendment), against all expenses, liability and loss
(including attorneys' fees, judgements, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) actually and reasonably incurred
or suffered by such Director in connection with any such proceeding. Such
indemnification shall continue as to a Director who has ceased to be a Director
and shall inure to the benefit of the Director's heirs, executors and
administrators. Except with respect to proceedings to enforce rights to
indemnification by a Director, the Corporation shall indemnify any such Director
in connection with a proceeding (or part thereof) initiated by such Director
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in this
Article shall be a contract right.
Section 9.02. Advance for Expenses: The Corporation shall pay for or
reimburse the actual and reasonable expenses incurred by a Director who is a
party to a proceeding in advance of final disposition of the proceeding if the
Director furnishes the Corporation: (1) a written affirmation of his or her good
faith belief that his or her conduct does not constitute behavior of the kind
set forth in Code Section 14-2-856(b); and (2) a written undertaking, executed
personally or on his or her behalf, to repay any advances if it is ultimately
determined that he or she is not entitled to indemnification for such expenses
under this Article or otherwise. The undertaking must be an unlimited general
obligation of the Director but need not be secured and may be accepted without
reference to Director's financial ability to make repayment.
Section 9.03. Enforcement: The rights to indemnification provided by this
Article shall apply to all proceedings described in Section 9.01 of this
Article, regardless of whether any provision of this Article has been amended or
repealed subsequent to such acts or omissions. If a claim for indemnification
under this Article is not paid in full by the Corporation within 60 days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be 20 days, the Director may apply for indemnification or advancement of
expenses to a court of competent jurisdiction pursuant to Code Section 14-2-854.
If successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Director also shall be entitled to be paid the expenses of
prosecuting or defending such suit. For purposes of this Article, references to
the "Corporation" shall include, in addition to this Corporation, any merging or
consolidating Corporation (including any merging or
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consolidation Corporation of a merging or consolidating Corporation) absorbed in
a merger or consolidation with this Corporation, so that any person who is or
was a Director of such merging or consolidating Corporation or who is or was
serving at the request of such merging or consolidating Corporation as a
Director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under this
Article with respect to this Corporation as he would if he had served this
Corporation in the same capacity.
X.
SPECIAL MEETINGS OF SHAREHOLDERS
At any time in the interval between annual meetings of shareholders,
special meetings of the shareholders may be called by the Chairman of the Board
of Directors, the President, the Board of Directors or the Executive Committee
by vote at a meeting, by a majority of the Directors in writing without a
meeting, or by the holders of not less than 100% of the shares of Common Stock
then outstanding and entitled to vote.
XI.
SHAREHOLDERS' RIGHT TO DISSENT
Section 11.01. Dissenters' Rights: A record shareholder of the Corporation
is entitled to dissent from, and to obtain payment of the fair value of his
shares in the event of the occurrence of any of the events described in Section
13.01(3) of these Articles of Incorporation with an "Interested Shareholder" as
defined in Section 11.02 of these articles unless the transaction is approved by
the Board of Directors in the manner described in Section 13.05 of these
Articles of Incorporation.
Section 11.02. "Interested Shareholder." For purposes of this Article, an
"Interested Shareholder" shall mean any person, other than the corporation or
its subsidiaries, that:
(1) Is the beneficial owner of 10 percent or more of the voting power
of the outstanding voting shares of the corporation; or
(2) Is a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control
with the corporation and, at any time within the two-year period
immediately prior to the date in question, was the beneficial owner of 10
percent or more of the voting power of the then outstanding voting shares
of the corporation (an "Affiliate").
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For the purpose of determining whether a person is an interested
shareholder, the number of voting shares deemed to be outstanding shall not
include any unissued voting shares which may be issuable pursuant to any
agreement, arrangement, or understanding,
Section 11.03. "Record Shareholder." For purposes of this Article a "record
shareholder" shall mean any person in whose name shares are registered in the
records of the Corporation or the beneficial owner of shares to the extent of
the rights granted by a nominee certificate on file with the Corporation.
XII.
AMENDMENT OF BYLAWS
Section 12.01. Amendment of Bylaws: No action shall be taken by the
shareholders with respect to altering, amending or repealing the Bylaws of the
Corporation, unless such action has been recommended by the Board of Directors,
except by the affirmative vote of the holders of at least two-thirds (66-2/3%)
of all of the outstanding shares entitled to vote. Such affirmative vote shall
be in addition to any shareholder vote that would be required without reference
to this Article.
Section 12.02. Amendment of Article XII: The affirmative vote of
shareholders required to alter, amend or repeal this Article, or to alter, amend
or repeal any other provision of the Articles of Incorporation of the
Corporation in any respect which would or might have the effect, directly or
indirectly, of modifying, permitting any action inconsistent with, or permitting
circumvention of, this Article shall be at least two-thirds (66-2/3%) of all of
the outstanding shares entitled to vote, excluding from the number of shares
deemed to be outstanding shares for purposes of such vote to amend, alter or
repeal this Article, all shares beneficially owned by an "Interested
Shareholder" as that term is defined in Section 11.02 of these Articles of
Incorporation; provided, however, that if such proposed alteration, amendment or
repeal is approved by a majority of the "Continuing Directors" as that term is
defined in Section 13.01(5) of these Articles of Incorporation, provided at the
time of such approval the Continuing Directors constitute at least a majority of
the Board of Directors, then such proposed alternation, amendment or repeal
shall require for approval only such affirmative vote as is required by law and
by any other provision of these Articles of Incorporation or the Bylaws. The
two-thirds (66-2/3%) affirmative vote provided for herein shall be in addition
to any shareholder vote that would be required without reference to this
Article.
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XIII.
BUSINESS COMBINATIONS WITH RELATED PERSONS
Section 13.01. Definitions.
The following definitions shall apply for purposes of this Article XIII:
(1) Affiliate. An "Affiliate" of, or Person "affiliated with," a specified
Person, is a Person that directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a
specified Person. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise and the beneficial ownership of shares representing ten
percent (10%) or more of the votes entitled to be cast by the Corporation's
voting shares shall create an irrebuttable presumption of control.
(2) Associate. The term "Associate," when used to indicate a relationship
with any Person, means (a) any Person (other than this Company or a subsidiary
of this Company) of which such Person is an officer, director or partner or is
the Beneficial Owner of ten percent (10%) or more of any class of equity
securities, (b) any trust or other estate in which such Person has a beneficial
interest of ten percent (10%) or more or as to which such Person serves as a
trustee or in a similar fiduciary capacity, and (c) any relative or spouse of
such Person, or any relative of such spouse who has the same home as such
Person.
(3) Beneficial Owner. A Person shall be considered to be the "Beneficial
Owner" of any equity securities of this Company;
(a) which such Person or any of such Person's Affiliates or Associates
owns, directly or indirectly;
(b) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has (i) the right to acquire, whether
such right is exercisable immediately or only after the passage of time,
agreement, arrangement, or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options or otherwise; or (ii) the
right to vote pursuant to any agreement, arrangement, or understanding;
(c) which are owned, directly or indirectly, by any other Person with
which such Person or any of its Affiliates or Associates has any agreement,
arrangement, or understanding for the purpose of acquiring, holding,
voting, or disposing of equity securities of this Company.
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(4) Business Combination. The term "Business Combination" shall mean:
(a) a merger or consolidation of this Company or any Subsidiary with
or into any other Person, or of such other Person with or into this Company
or any Subsidiary, or
(b) any sale, exchange, lease, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions, of the assets
of this Company or any Subsidiary having an aggregate book value as of the
end of the Company's most recently ended fiscal quarter of ten percent
(10%) or more of the net assets of the Company to any other Person, or
(c) any sale, exchange, lease, mortgage, pledge, transfer or other
disposition for value by any other Person of any assets to this Company or
any Subsidiary in exchange for Outstanding Shares, or outstanding shares of
any Subsidiary, where the result of such transaction is that such other
Person is the Beneficial Owner of a majority of the Outstanding Shares, or
(d) the liquidation or dissolution of the Company or any Subsidiary
proposed by or on behalf of a Related Person, or
(e) any share exchange in which the shares of Common Stock of the
Company or of any Subsidiary having an aggregate book value as of the end
of the Company's most recently ended fiscal quarter of ten percent (10%) or
more of the net assets of the Company are exchanged for shares, other
securities, cash or other property, or
(f) any amendment of these Articles of Incorporation which would
effect a reclassification of any securities of this Company, (including a
reverse stock split or the equivalent thereof) or any merger of the Company
with any of its Subsidiaries, which has the effect, directly or indirectly,
of increasing the proportionate share of any class of the Outstanding
Shares of the Company or any Subsidiary beneficially owned by a Related
Person.
(5) Continuing Director. The term "Continuing Director" shall mean any
member of the Board of Directors who is not a Related Person or an Affiliate or
Associate of a Related Person or of any such Affiliate or Associate, or a
representative of a Related Person or of any such Affiliate or Associate, and
was a Director of the Company prior to the time a Related Person became such,
and any successor to such Continuing Director who is not an Affiliate or
Associate of a Related Person and was recommended by a majority of the
Continuing Directors then on the Board of Directors, provided that at the time
of such recommendation, Continuing Directors comprise a majority of the Board.
If there is no Related Person, all members of the Board of Directors shall be
deemed to be "Continuing Directors."
(6) Date of Determination. The term "Date of Determination" shall mean (a)
the date on which a binding agreement (except for the fulfillment of conditions
precedent, including, without limitation, votes of shareholders to approve such
transaction) is entered into by this
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Company, as authorized by the Board of Directors, and another Person providing
for any Business Combination, or (b) if such an agreement as referred to in item
(a) above is amended so as to make it less favorable to this Company or its
shareholders, the date on which such amendment is entered into by the Company,
as authorized by the Board of Directors, or (c) in cases where neither items (a)
nor (b) shall be applicable, the record date for the determination of
shareholders of this Company entitled to notice of and to vote upon the
transaction in question. The Board of Directors shall have the power and duty to
determine pursuant to the foregoing the Date of Determination as to any
transaction for purposes of this Article XIII. Any such determination made by
the Board of Directors in good faith shall be conclusive and binding for all
purposes of Article XIII.
(7) Fair Market Value. The term "Fair Market Value" shall mean, as of any
date: (a) in the case of stock, either (i) the median of the averages of the
daily high and low sale prices during the 30-day period immediately preceding
such date of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed; or (ii) if
such stock is not listed on any such exchange, the median of the averages of the
daily closing bid and closing asked quotations on the National Association of
Securities Dealers Automated Quotations System ("NASDAQ") (or any successor
system then in use), or the median of the averages of the daily high and low
sales prices on the NASDAQ National Market System, if applicable, for such stock
during the 30-day period preceding such date, or if no such quotations are then
available, the fair market value as determined in good faith by a majority of
the Continuing Directors; and (b) in the case of property other than cash or
stock, the fair market value of such property on such date as determined in good
faith by a majority of the Continuing Directors.
(8) Outstanding Shares. The term "Outstanding Shares" shall mean any issued
shares of capital stock of the Company with the right generally to vote for the
election of Directors, but shall not include any shares (prior to issue) which
may be issuable pursuant to any agreement or upon exercise of conversion rights,
warrants, options or otherwise.
(9) Person. The term "Person" shall mean any individual, partnership,
corporation, group or other entity (other than the Company, any Subsidiary of
the Company or a trustee holding stock for the benefit of employees of the
Company or its Subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangements). When two or more Persons act as a
partnership, limited partnership, syndicate, association or other group for the
purposes of acquiring, holding, voting or disposing of the Outstanding Shares,
such partnership, syndicate, association, or group shall be deemed a "Person."
(10) Related Person. The term "Related Person" shall mean any Person which,
together with the Affiliates and Associates of such Person, is the Beneficial
Owner as of the Date of Determination or immediately prior to the consummation
of a Business Combination, or both, of at least that number of shares of stock
of the Company equal to twenty percent (20%) of all of the Outstanding Shares,
but does not include any one or a group of more than one Continuing
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Director. The term "Related Person" shall include the Affiliates and Associates
of such Related Person.
(11) Subsidiary. The term "Subsidiary" shall mean any corporation of which
a majority of any class of equity security is owned, directly or indirectly, by
the Company.
Section 13.02. Determination of Application of Article XIII.
The Board of Directors shall have the power and the duty to determine for
the purposes of Article XIII on the basis of the information known to the Board
of Directors, any fact determinable under Article XIII and the applicability of
all definitions to transactions contemplated by Article XIII, including but not
limited to the following:
(1) the number of shares of stock of the Company owned by a Person,
and
(2) whether a Person is an Affiliate or Associate of another, and
(3) the fair market value, to be determined pursuant to the definition
of "Fair Market Value" contained in Section 13.01, of consideration other
than cash received or to be received for Outstanding Shares.
Any such determination shall be conclusive and binding for all purposes of
Article XIII, provided that such determination is approved by a majority of the
Continuing Directors then in office.
Section 13.03. Voting Requirements for Business Combinations with Related
Persons.
Except as set forth in Sections 13.04 and 13.05 of this Article XIII, if as
of the Date of Determination with respect to any Business Combination, any
Person that is a party to such Business Combination is a Related Person, the
affirmative vote or consent of the holders of at least seventy-five percent
(75%) of all Outstanding Shares shall be required to approve such Business
Combination. Such affirmative vote shall be required notwithstanding the fact
that no vote maybe required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or otherwise, and
shall be in addition to any shareholder vote which would be required without
reference to this Article XIII.
Section 13.04. Nonapplicability of Special Voting Requirements.
The provisions of Section 13.03 shall not apply if all of the following
conditions shall have been met, provided, however, that nothing contained in
this Article XIII shall be construed to relieve any Related Person from any
fiduciary obligation imposed by law:
(1) The consideration to be received by the Company or per share by
holders of Outstanding Shares shall be in cash or in the same form as the
consideration given by the Related Person in acquiring Outstanding Shares
at any time during the period commencing
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on the date of the first acquisition by such Related Person of any
Outstanding Shares and ending on and including the date upon which the
Related Person became a Related Person. If the Related Person paid for
Outstanding Shares with varying forms of consideration, the form of
consideration to be received by the Company or per share by holders of
Outstanding Shares shall be either cash or the form of consideration used
to acquire the largest number of Outstanding Shares acquired by the Related
Person during such two-year period.
(2) The Fair Market Value of the consideration received in such
Business Combination by the Company (analyzed on a per share basis) or per
share by holders of Outstanding Shares is not less than the highest per
share price (including brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by such Related Person in acquiring any of its holdings
of Outstanding Shares.
(3) The ratio of:
(a) the Fair Market Value of the consideration to be received in
such Business Combination by the Company (analyzed on a per share
basis) or per share by holders of Outstanding Shares to
(b) the per share market price of Outstanding Shares immediately
prior to the announcement of the Business Combination is at least as
great as the ratio of
(c) the highest per share price (including brokerage commissions,
transfer taxes and soliciting dealers' fees) which such Related Person
has paid for any of the Outstanding Shares acquired by it prior to the
Date of Determination, to
(d) the per share market price of Outstanding Shares immediately
prior to the initial acquisition by such Related Person of any
Outstanding Shares.
(4) If the Related Person is a corporation, the Fair Market Value of
the consideration to be received in such Business Combination by the
Company (analyzed on a per share basis) or per share by holders of
Outstanding Shares shall be not less than the earnings per share of
Outstanding Shares during the four full consecutive fiscal quarters
immediately preceding the Date of Determination for solicitation of votes
on such Business Combination multiplied by the then price/earnings multiple
(if any) of such Related Person as customarily computed and reported in the
financial community;
(5) The Fair Market Value of consideration to be received in such
Business Combination by the Company (analyzed on a per share basis) or per
share by holders of Outstanding Shares shall be not less than the sum of:
(a) the higher of (i) the highest gross per share price paid or
agreed to be paid by the Related Person to acquire any of the
Outstanding Shares of the Company beneficially owned by such Related
Person or (ii) the highest per share
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market price for such Outstanding Shares since the Related Person
became a Related Person, plus
(b) an amount equal to the highest price/earnings multiple of the
Company, as customarily computed and reported in the financial
community, attained by the Company during the five fiscal years
immediately preceding the Date of Determination multiplied by the
aggregate amount, if any, by which 10% of such higher per share price
determined under (a) above exceeds the smallest quarterly common stock
dividend per share (annualized) paid in cash since the date on which
such Related Person became a Related Person;
(6) The Fair Market Value of the consideration to be received in such
Business Combination by the Company (analyzed on a per share basis) or per
share by holders of Outstanding Shares shall not be less than the per share
book value of Outstanding Shares at the end of the most recent fiscal year
preceding the Date of Determination, calculated in accordance with
generally accepted accounting methods;
(7) After such Related Person has become a Related Person and prior to
the consummation of such Business Combination: (a) except as approved by
two-thirds of the Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefor any dividends (whether or not
cumulative) on any outstanding Preferred Stock of the Company; and (b)
there shall have been (i) no reduction in the annual dividend from that
most recently paid on Outstanding Shares (except as necessary to reflect
any subdivision of the Outstanding Shares through stock dividend, stock
split, or otherwise), except as approved by two-thirds of the Continuing
Directors, and (ii) an increase in such annual dividend as necessary to
reflect any reclassification (including a reverse stock split),
recapitalization, reorganization or any similar transaction which has the
effect of reducing the number of Outstanding Shares, unless the failure so
to increase such annual dividend is approved by two-thirds of the
Continuing Directors;
(8) After such Related Person has become a Related Person, such
Related Person shall not have received the benefit, directly or indirectly
(except proportionately as a shareholder of the Company) of any loans,
advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Company, whether in
anticipation of or in connection with such Business Combination or
otherwise.
Section 13.05. Approval by Continuing Directors.
Approval by Continuing Directors. The provisions of Sections 13.03 and
13.04 shall not be applicable to any particular Business Combination or other
event covered thereby, and such Business Combination or other event covered
thereby shall require only such affirmative vote as is required by law and by
any other provision of these Articles of Incorporation, if both of the following
conditions with respect to such Business Combination or other event shall have
been satisfied: (1) the Business Combination or other event shall have been
approved by two-thirds of the Continuing Directors; and (2) at the time of such
approval, Continuing Directors comprised
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at least a majority of the Board of Directors.
Section 13.06. Amendment.
The affirmative vote of shareholders required to alter, amend or repeal
this Article XIII, or to alter, amend, or repeal any other provision of the
Articles of Incorporation of the Company in any respect which would or might
have the effect, directly or indirectly, of modifying, permitting any action
inconsistent with, or permitting circumvention of, this Article XIII (including,
but not limited to, any amendment of the Articles of Incorporation which would
effect a reclassification of any securities of this Company which has the
effect, directly or indirectly, of increasing the proportionate share of
Outstanding Shares, or outstanding shares of any Subsidiary, beneficially owned
by a Related Person), shall be at least seventy-five percent (75%) of all of the
Outstanding Shares; provided, however, that if such proposed alteration,
amendment or repeal is approved by two-thirds of the Continuing Directors and at
the time of such approval Continuing Directors comprise at least a majority of
the Board of Directors, then such proposed alteration, amendment or repeal shall
require for approval only such affirmative vote as is required by law and by any
other provision of these Articles of Incorporation. The 75% affirmative vote
provided for above shall be in addition to any shareholder vote which would be
required without reference to this Article XIII.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Amendment and Restatement this 4th day of January, 1996.
/s/ Melanie M. Platt
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Melanie M. Platt
Corporate Secretary
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