SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
UNIVERSAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Virginia 54-0414210
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
1501 North Hamilton Street
Richmond, Virginia 23230
(Address of Principal Executive Offices) (Zip Code)
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If this form relates to the registration If this form relates to the registration
of a class of securities pursuant to of a class of securities pursuant to
Section 12(b) of the Exchange Act the Section 12(g) of the Exchange Act and is
Exchange and is effective pursuant to effective pursuant to General Instruction
General Instruction A.(c), please check A.(d), please check the following box. [ ]
the following box. [ X ]
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Securities Act registration statement file number to which this form relates: n/a
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(If applicable)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Preferred Share Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
none
(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
On December 3, 1998, the Board of Directors of Universal Corporation
(the "Company") declared a dividend of one preferred share purchase right (a
"Right") for each share of common stock, without par value (the "Common
Shares"), of the Company outstanding on February 13, 1999 (the "Record Date").
Each Right entitles the registered holder to purchase from the Company one
two-hundredth of a share of Series A Junior Participating Preferred Stock,
without par value (the "Preferred Shares") of the Company at a price of $110 per
one two-hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement"), dated as of December 3, 1998, between the
Company and Wachovia Bank, N.A., as Rights Agent (the "Rights Agent"). The
Rights Agreement succeeds the Company's current agreement with the Rights Agent,
which will expire on February 13, 1999.
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons have
acquired beneficial ownership of 15% or more of the outstanding Common Shares
(an "Acquiring Person") or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such time as any such
person or group becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 15% or more of the outstanding Common Shares (the earlier of such dates
being the "Distribution Date"), the Rights will be evidenced, with respect to
any of the Common Share certificates outstanding as of the Record Date, by such
Common Share certificate with a copy of a Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferable
with and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued
after the Record Date upon transfer or new issuance of Common Shares will
contain a legend incorporating the terms of the Rights Agreement by reference.
Notwithstanding the absence of such legend or the existence of an earlier form
of legend, certificates evidencing Common Shares outstanding on or prior to the
Record Date, together with a copy of the Summary of Rights attached thereto,
will also evidence one Right for each Common Share evidenced thereby.
Accordingly, until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of such certificates, even without such
legend or a copy of the Summary of Rights being attached thereto, will also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Shares as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
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The Rights are not exercisable until the Distribution Date. The Rights
will expire on February 13, 2009 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then-current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one two-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend equal to 200 times the dividend declared per Common Share. In the event
of liquidation, the holders of the Preferred Shares will be entitled to a
minimum preferential liquidation payment of $100 per share but will be entitled
to an aggregate payment equal to 200 times the payment made per Common Share.
Each Preferred Share will have 200 votes, voting together with the Common
Shares. Finally, in the event of any merger, consolidation or other transaction
in which Common Shares are exchanged, each Preferred Share will be entitled to
receive an amount equal to 200 times the amount received per Common Share. These
rights are protected by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of the one two-hundredths interest in a Preferred
Share purchasable upon exercise of each Right should approximate the value of
one Common Share.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after a person or group has become an Acquiring Person, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
that at the time of such transaction will have a market value of two times the
exercise price of the Right. In the event that any person or group of affiliated
or associated persons becomes an
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Acquiring Person, proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person (which will
thereafter be void), will thereafter have the right to receive, upon exercise
thereof at the then current exercise price of the Right, that number of Common
Shares (or Preferred Shares) having a market value of two times the exercise
price of the Right.
At any time after any person or group or affiliated or associated
persons becomes an Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Shares, the Board of Directors
of the Company may exchange the Rights (other than Rights owned by such person
or group that will have become void), in whole or in part, at an exchange ratio
of one Common Share, or one two-hundredth of a Preferred Share (or of a share of
a class or series of the Company's preferred stock having equivalent rights,
preferences and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions that are integral multiples of one two-hundredth of a Preferred Share,
which may, at the election of the Company, be evidenced by depositary receipts)
and, in lieu thereof, an adjustment in cash will be made based on the market
price of the Preferred Shares on the last trading day prior to the date of
exercise.
At any time prior to the time that any person or group of affiliated or
associated persons becomes an acquiring person, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"), subject to adjustment. The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors of the Company in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to exercise
the Rights will terminate, and the only right of the holders of Rights will be
to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to lower certain thresholds described above to not less than the greater of (i)
the sum of .001% and the largest percentage of the outstanding Common Shares
then known by the Company to be beneficially owned by any person or group of
affiliated or associated persons and (ii) 10%, except that from and after such
time as any person or group of affiliated or associated persons becomes an
Acquiring Person, no such amendment may adversely affect the interests of the
holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board of Directors, except pursuant to an
offer conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business
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combination approved by the Board of Directors because the Rights may be
redeemed by the Company at the Redemption Price prior to the time that a person
or group has acquired beneficial ownership of 15% or more of the Common Shares.
The Rights Agreement is hereby incorporated by reference to Exhibit 4.1
to the Current Report on Form 8-K dated December 3, 1998 and filed with the
Securities and Exchange Commission on December 22, 1998. The foregoing
description of the Rights is qualified in its entirety by reference to such
exhibit.
Item 2. Exhibits.
Number Description
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4.1 Amended and Restated Articles of Incorporation.*
4.2 Bylaws (incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996, File No. 1- 652).
4.3 Rights Agreement, dated February 2, 1989, between the
Company and Sovran Bank, N.A., as Rights Agent
(incorporated herein by reference to the Company's
Form 8-A Registration Statement, dated February 9,
1989, File No. 1-652) (expiring February 13, 1999).
4.4 Amendment to Rights Agreement, dated May 2, 1991,
between the Company and Sovran Bank, N.A., as Rights
Agent (incorporated herein by reference to the
Company's Form 8 Amendment No. 1, dated May 7, 1991,
to Form 8-A Registration Statement, dated February 9,
1989, File No. 1-652).
4.5 Amendment to Rights Agreement, dated July 17, 1992,
between the Company, NationsBank, N.A., as Rights
Agent, and Wachovia Bank of North Carolina, N.A., as
Successor Rights Agent (incorporated herein by
reference to the Company's Form 8 Amendment No. 2,
dated July 17, 1992, to Form 8-A Registration
Statement, dated February 9, 1989, File No. 1-652).
4.6 Specimen Common Stock Certificate (incorporated
herein by reference to the Company's Form S-3, dated
February 25, 1993, File No. 1-652).
4.7 Agreement, dated as of December 3, 1998, between the
Company and Wachovia Bank, N.A., as Rights Agent
(incorporated herein by reference to the Company's
Current Report on Form 8-K, dated December 3, 1998,
File No. 1-652).
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*Filed Herewith
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
UNIVERSAL CORPORATION
(Registrant)
Date: December 22, 1998 By: /s/ James M. White, III
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James M. White, III
Vice President, General Counsel
and Secretary
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Exhibit Index
Number Description
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4.1 Amended and Restated Articles of Incorporation.*
4.2 Bylaws (incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996, File No. 1- 652).
4.3 Rights Agreement, dated February 2, 1989, between the
Company and Sovran Bank, N.A., as Rights Agent
(incorporated herein by reference to the Company's
Form 8-A Registration Statement, dated February 9,
1989, File No. 1-652) (expiring February 13, 1999).
4.4 Amendment to Rights Agreement, dated May 2, 1991,
between the Company and Sovran Bank, N.A., as Rights
Agent (incorporated herein by reference to the
Company's Form 8 Amendment No. 1, dated May 7, 1991,
to Form 8-A Registration Statement, dated February 9,
1989, File No. 1-652).
4.5 Amendment to Rights Agreement, dated July 17, 1992,
between the Company, NationsBank, N.A., as Rights
Agent, and Wachovia Bank of North Carolina, N.A., as
Successor Rights Agent (incorporated herein by
reference to the Company's Form 8 Amendment No. 2,
dated July 17, 1992, to Form 8-A Registration
Statement, dated February 9, 1989, File No. 1-652).
4.6 Specimen Common Stock Certificate (incorporated
herein by reference to the Company's Form S-3, dated
February 25, 1993, File No. 1-652).
4.7 Agreement, dated as of December 3, 1998, between the
Company and Wachovia Bank, N.A., as Rights Agent
(incorporated herein by reference to the Company's
Current Report on Form 8-K, dated December 3, 1998,
File No. 1-652).
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*Filed Herewith
Exhibit 4.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
UNIVERSAL CORPORATION
I.
The name of the Corporation is Universal Corporation.
II.
The principal office of the Corporation shall be in the City of
Richmond, State of Virginia.
III.
The purpose for which the Corporation is organized is to transact any
lawful business not required by law to be specifically stated in these Articles
of Incorporation.
IV.
The maximum amount of capital stock of the Corporation shall be one
hundred five million seventy-five thousand (105,075,000) shares, of which
seventy-five thousand (75,000) shares, of the par value of One Hundred Dollars
($100.00) each and a total par value of Seven Million Five Hundred Thousand
Dollars ($7,500,000), shall be eight percent (8%) Cumulative Preferred Stock
("8% Preferred Stock"), five million (5,000,000) shares, without par value,
shall be Additional Preferred Stock, and one hundred million (100,000,000)
shares, without par value, shall be Common Stock.
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The minimum amount of the capital stock of the Corporation shall be not
less than one hundred (100) shares of 8% Preferred Stock, Additional Preferred
Stock, or Common Stock, or any combination thereof.
At any time and from time to time, for such considerations as may be
fixed by the Board of Directors of the Corporation, any and all shares of 8%
Preferred Stock, Additional Preferred Stock and Common Stock of the Corporation,
at the time authorized but not issued and outstanding, may be issued and
disposed of by the Board of Directors of the Corporation in any lawful manner,
consistently, in the case of shares of 8% Preferred Stock or Additional
Preferred Stock, with the requirements set forth in the provisions of these
Articles of Incorporation applicable to the 8% Preferred Stock or the Additional
Preferred Stock.
The 8% Preferred Stock shall entitle the holders thereof of record to
receive out of any surplus or net profits of the Corporation cumulative
dividends thereon at the rate of eight percent (8%) per annum, payable on the
first days of January and July in each year, but the Board of Directors may
declare said dividends in monthly or quarterly installments, which dividends
shall be payable in preference and priority to the payment of any dividend upon
the Additional Preferred Stock or the Common Stock. In the event that the
surplus or net profits of the Corporation shall not in the judgment of the Board
of Directors be sufficient in any such period to pay such dividends upon the 8%
Preferred Stock at the rate of eight percent (8%) per annum or if in the
judgment of the Board of Directors it shall not be advisable to
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apply said surplus or net profits to dividends upon the 8% Preferred Stock, then
so much of said dividends as are not paid shall cumulate from dividend period to
dividend period and from year to year, and such cumulated dividends shall bear
interest at the rate of six percent (6%) per annum from the respective dates on
which they should have been paid until paid, and no dividends shall be declared
on Additional Preferred Stock or Common Stock until dividends so unpaid and
cumulated upon the 8% Preferred Stock, together with interest thereon as
aforesaid, shall have been fully paid.
Except only as otherwise provided in the provisions of these Articles
of Incorporation applicable to the Additional Preferred Stock, until default
shall have been made in the payment of dividends on 8% Preferred Stock for four
dividend periods of six months each, and such default shall have continued for
sixty days after the first day of January or July, as the case may be, upon
which the said dividends for the fourth period became due, the exclusive voting
power shall be vested in the Common Stock of the Corporation, the holders
thereof being entitled to one vote for each share of Common Stock at all
meetings of the shareholders of the Corporation, but no voting power shall be
vested in the holders of 8% Preferred Stock.
In the event of default in the payment of dividends upon 8% Preferred
Stock for four dividend periods of six months and such default shall have
continued for sixty days after the first day of January or July, as the case may
be, upon which said dividends for the fourth period became due, then the right
of the holders
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of Common Stock or Additional Preferred Stock to vote at meetings of the
shareholders shall cease and the exclusive voting power in all meetings of the
shareholders shall pass to, and become vested in the holders of 8% Preferred
Stock and shall remain in the holders of 8% Preferred Stock until all dividends
in arrears shall have been paid in full, with interest, and two additional
dividends for periods of six months each shall have likewise been paid on the
respective due dates above named. The holder of each and every share of 8%
Preferred Stock shall during such period be entitled to one vote for each share
of said 8% Preferred Stock at all meetings of the shareholders of the
Corporation. In the event that all cumulated dividends upon the 8% Preferred
Stock and interest on same shall have been paid in full and two additional
dividends for periods of six months shall have been likewise paid on said 8%
Preferred Stock as aforesaid, the right of the holders of 8% Preferred Stock to
vote shall cease and the exclusive voting power in all meetings of the
shareholders shall revest in the Common Stock, and the Additional Preferred
Stock to the extent that shares of such Additional Preferred Stock are granted
voting rights, and shall remain in the holders of Common Stock and Additional
Preferred Stock as aforesaid until another such default shall have occurred. The
right of the holders of 8% Preferred Stock to vote as aforesaid shall become
vested in the holders of said stock whenever and as often as default in the
payment of dividends on 8% Preferred Stock shall occur as hereinbefore declared.
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If the exclusive voting power shall have become vested in the holders
of 8% Preferred Stock and the Corporation shall fail within a further period of
two years to earn a sufficient amount applicable to dividends to discharge all
cumulated dividends on the 8% Preferred Stock of the Corporation, with interest
on said dividends, then upon a favorable vote of not less than two-thirds in
interest of the holders of 8% Preferred Stock at a meeting of the shareholders
called for the purpose after due notice as required by the Bylaws of the
Corporation, or if no notice is provided in the Bylaws, then as required by law,
a resolution may be adopted providing that unless the holders of the Common
Stock or the Additional Preferred Stock, or someone for them, shall by a date
fixed in said resolution, which date shall be not less than ninety days from the
date of said meeting, redeem all of the 8% Preferred Stock then outstanding by
paying the par value thereof with all cumulated dividends and interest thereon,
the Corporation shall be dissolved and its assets distributed as herein
provided.
Upon the adoption of such resolution a copy thereof shall forthwith be
mailed to each holder of Common Stock and Additional Preferred Stock at said
holder's last known post office address as same appears upon the stock book and
ledger of the Corporation, and said resolution shall likewise be published in a
newspaper of general circulation in the City of Richmond, Virginia, once a week
for four successive weeks. If the holders of Common Stock or Additional
Preferred Stock, or someone for them, shall not, on or before the date fixed in
said resolution,
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redeem all of the 8% Preferred Stock, then outstanding as hereinbefore stated,
the holders of 8% Preferred Stock shall have the power and may, with or without
the consent of the Common Stock or Additional Preferred Stock, upon the vote of
not less than two-thirds in interest of the holders of said 8% Preferred Stock
at a meeting called for the purpose, of which meeting notice shall be given as
required by law, proceed to dissolve the Corporation and to liquidate and
distribute the assets thereof in accordance with the provisions hereof in the
manner provided by the laws of the Commonwealth of Virginia.
In the event of default in payment of dividends on 8% Preferred Stock
for four periods of six months each and such default shall have continued for
sixty days after the first day of January or July, as the case may be, upon
which said dividends for the fourth period became due, it shall be the duty of
the Secretary of the Corporation to notify the holders of 8% Preferred Stock and
the Common Stock and Additional Preferred Stock by notice mailed to each
shareholder at the last known post office address, as the same appears on the
stock book and stock ledger of the Corporation, and to call a meeting of the
holders of 8% Preferred Stock. When the meeting of the holders of 8% Preferred
Stock has been duly convened, pursuant to notice aforesaid, which shall be given
in accordance with the Bylaws of the Corporation, or if no notice be provided in
the Bylaws then in accordance with the provisions of the laws of the
Commonwealth of Virginia, the holders of said 8% Preferred Stock may elect a new
Board of Directors in whole or in part and take control of
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the organization and management of the Corporation. At such meeting, it shall be
conclusively presumed that the officers and Directors of the Corporation
theretofore elected have presented their resignations to said meeting and the
acceptance of said resignations by such meeting shall immediately vacate the
offices and the positions on the Board of Directors theretofore held by the
persons whose resignations are accepted by said meeting.
No amendment to the Articles of Incorporation of the Corporation
affecting the rights of the 8% Preferred Stock shall be adopted, except with the
consent of two-thirds in interest of the outstanding 8% Preferred Stock, which
consent shall be given by a vote of the holders of the 8% Preferred Stock in the
meeting of the shareholders called to authorize said amendment.
In the event of the liquidation or dissolution of the Corporation or
the distribution of the assets of the Corporation, whether voluntary or
involuntary, the holders of the 8% Preferred Stock shall be entitled to receive
the par value of the shares held by them, together with all cumulated dividends
thereon, with interest on such cumulated dividends, out of the surplus funds or
assets of the Corporation before any payment shall be made to the holders of the
Additional Preferred Stock or the Common Stock. After the payment in full of the
8% Preferred Stock and the satisfaction of the rights of all holders of shares
of Additional Preferred Stock, or the deposit in trust of money adequate for
such satisfaction, the remaining assets shall be applied to the Common Stock.
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The Additional Preferred Stock and the Common Stock shall be subject to
the prior rights of the holders of 8% Preferred Stock both as to dividends and
assets as herein declared. If after paying or providing for the payment of full
dividends for any six months on the 8% Preferred Stock, together with any
dividends which may be in arrears for the preceding years, there shall remain
any surplus net profits, any and all such surplus net profits may, in the
discretion of the Board of Directors as herein declared be applied to dividends
on the Additional Preferred Stock and the Common Stock as from time to time
shall be declared by said Board; provided that the declaration and payment of a
dividend on the Additional Preferred Stock or the Common Stock shall not reduce
the accumulated surplus to an amount less than twenty percent (20%) on the 8%
Preferred Stock issued and outstanding, it being intended that no dividend shall
be paid on the Additional Preferred Stock or the Common Stock until there has
been accumulated a surplus equal to twenty percent (20%) on the 8% Preferred
Stock issued and outstanding, and that such surplus, when so accumulated shall
not be thereafter reduced below such figure by the declaration and payment of a
dividend on the Additional Preferred Stock or the Common Stock.
The Board of Directors of the Corporation may, subject to the
limitations contained in these Articles of Incorporation, and in the Bylaws
adopted by the Corporation, declare annual, semi-annual, quarterly or monthly
dividends out of the surplus or net earnings, at such times as may be fixed by
the Bylaws, or if no
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time is so fixed, at such time as may be declared by the Board of Directors.
Subscriptions to the capital stock of the Corporation may be paid in
money, land or other property, real or personal, stocks, bonds, leases, options,
patent rights or other rights or easements, contracts, labor or services; and
there shall be no individual or personal liability on any subscriber beyond the
obligation to comply with such terms as he may have agreed to in his contract of
subscription; and the Corporation may adopt such plan of financial organization
and may dispose of its stock or bonds for the purpose of its incorporation at
such price, for such consideration and on such terms and conditions as it
determines.
The Board of Directors is hereby empowered to cause any class of the
Additional Preferred Stock of the Corporation to be issued in series with such
of the variations permitted by clauses (a)-(k) below, as shall be determined by
the Board of Directors.
The shares of Additional Preferred Stock of different classes or series
may vary as to:
(a) the designation of such class or series, the number of
shares to constitute such class or series and the stated value thereof;
(b) whether the shares of such class or series shall have
voting rights, in addition to any voting rights provided by law, and,
if so, the terms of such voting rights, which (i) may be general or
limited, and (ii) may permit more than one vote per share;
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(c) the rate or rates (which may be fixed or variable) at
which dividends, if any, are payable on such class or series, whether
any such dividends shall be cumulative, and, if so, from what dates,
the conditions and dates upon which such dividends are payable, the
preference or relation which such dividends shall bear to the dividends
payable on shares of Common Stock or on any shares of stock of any
other class of Additional Preferred Stock or any other series of such
class;
(d) whether the shares of such class or series shall be
subject to redemption by the Corporation, and, if so, the times, prices
and other conditions of such redemption;
(e) the amount or amounts payable upon shares of such
class or series upon, and the rights of the holders of such class or
series in, the voluntary and involuntary liquidation, dissolution or
winding up, or upon any distribution of the assets, of the Corporation;
(f) whether the shares of such class or series shall be
subject to the operation of a retirement or sinking fund, and, if so,
the extent to and manner in which any such retirement or sinking fund
be applied to the purchase or redemption of the shares of such series
for retirement or other corporate purposes and the terms and provisions
relative to the operation thereof;
(g) whether the shares of such series shall be convertible
into, or exchangeable for, shares of Common Stock or any other
securities (including any other class or series of Additional Preferred
Stock but excluding 8% Preferred Stock) and, if so, the price or prices
or the rate or rates of conversion or exchange and the method, if any,
of adjusting the same, and any other terms and conditions of conversion
or exchange;
(h) the limitations and restrictions, if any, to be
effective while any shares of such class or series are outstanding upon
the payment of dividends or the making of other distributions on, and
upon the purchase, redemption or other acquisition by the Corporation
of, the Common Stock or shares of stock of any other class or any other
series of the Additional Preferred Stock;
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(i) the conditions or restrictions, if any, upon the
creation of indebtedness of the Corporation or upon the issue of any
additional stock, including additional shares of such class or series
or of any other series of such class or of any other class;
(j) the ranking (be it pari passu, junior or senior) of
each class or series as to the payment of dividends, the distribution
of assets and all other matters; and
(k) any other powers, preferences and relative,
participating, optional and other special rights, and any
qualifications, limitations and restrictions thereof, insofar as they
are not inconsistent with the provisions of these Articles of
Incorporation, to the full extent permitted in accordance with the laws
of the Commonwealth of Virginia.
In the event of any liquidation, dissolution or winding up of the
Corporation, after there shall have been paid to or set aside for the holders of
the Additional Preferred Stock the full preferential amounts to which they are
respectively entitled under the provisions of these Articles of Incorporation
applicable to the Additional Preferred Stock, the holders of the Additional
Preferred Stock shall have no claim to any of the remaining assets of the
Corporation.
The powers, preferences and relative, participating, optional and other
special rights of each class or series of Additional Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other classes and series at any time outstanding. All
shares of Additional Preferred Stock of each series shall be equal in all
respects.
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Section 1. Series A Junior Participating Preferred Stock. The first
series of Additional Preferred Stock shall be designated as "Series A Junior
Participating Preferred Stock" (the "Series A Preferred Stock") and the number
of shares constituting the Series A Preferred Stock shall be 500,000. Such
number of shares may be increased or decreased by resolution of the Board of
Directors; provided, that no decrease shall reduce the number of shares of
Series A Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series A
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of 8%
Preferred Stock or of any series of Additional Preferred Stock (or any similar
stock) ranking prior and superior to the Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock, in preference
to the holders of Common Stock, without par value (the "Common Stock"), of the
Corporation, and of any other junior 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 first day of February,
May, August and November in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the 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 or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
Corporation 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
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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 Series 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.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) 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 Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly 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 Quarterly 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 date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on 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. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date
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shall be not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation 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 Series 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 the Articles of
Incorporation, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(C)(i) If at any time dividends on any shares of Series A
Preferred Stock shall be in arrears in an amount equal to six quarterly
dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (a "default period") that shall extend until such
time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all
shares of Series A Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. Subject to the right of the
holders of 8% Preferred Stock, during each default period, all holders
of
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the outstanding shares of Series A Preferred Stock together with any
other series of Additional Preferred Stock then entitled to such a vote
under the terms of the Articles of Incorporation, voting as a separate
voting group, shall be entitled to elect two members of the Board of
Directors of the Corporation.
(ii) During any default period, such voting right of the
holders of Additional Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this Section
3(C) or at any annual meeting of shareholders, and thereafter at annual
meetings of shareholders, provided that neither such voting right nor
the right of the holders of any other series of Additional Preferred
Stock, if any, to increase, in certain cases, the authorized number of
Directors shall be exercised unless the holders of ten percent (10%) in
number of shares of Additional Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of
Additional Preferred Stock of such voting right. At any meeting at
which the holders of Additional Preferred Stock shall exercise such
voting right initially during an existing default period, they shall
have the right, voting as a separate voting group, to elect Directors
to fill such vacancies, if any, in the Board of Directors as may then
exist up to two (2) Directors, or if such right is exercised at an
annual meeting, to elect two (2) Directors. If the number which may be
so elected at any special meeting does not amount to the required
number, the holders of the Additional Preferred Stock shall have the
right to make such increase in the number of Directors as shall be
necessary to permit the election by them of the required number. After
the holders of the Additional Preferred Stock shall have exercised
their right to elect Directors in any default period and during the
continuance of such period, the number of Directors shall not be
increased or decreased except by vote of the holders of Additional
Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A
Preferred Stock.
(iii) Unless the holders of Additional Preferred Stock shall,
during an existing default period, have previously exercised their
right to elect Directors, the Board of
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Directors may order, or any shareholder or shareholders owning in the
aggregate not less than ten percent (10%) of the total number of shares
of Additional Preferred Stock outstanding, irrespective of series, may
request, the calling of a special meeting of the holders of Additional
Preferred Stock, which meeting shall thereupon be called by the
Chairman, President, a Vice-President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at which
holders of Additional Preferred Stock are entitled to vote pursuant to
this Section 3(C)(iii) shall be given to each holder of record of
Additional Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Corporation.
Such meeting shall be called for a time not earlier than 10 days and
not later than 60 days after such order or request. In the event such
meeting is not called within 60 days after such order or request, such
meeting may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than ten percent (10%) of
the total number of shares of Additional Preferred Stock outstanding.
Notwithstanding the provisions of this Section 3(C)(iii), no such
special meeting shall be called during the period within 60 days
immediately preceding the date fixed for the next annual meeting of the
shareholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue
to be entitled to elect the whole number of Directors until the holders
of Additional Preferred Stock shall have exercised their right to elect
two (2) Directors voting as a separate voting group, after the exercise
of which right (x) the Directors so elected by the holders of
Additional Preferred Stock shall continue in office until their
successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of
Directors may (except as provided in Section 3(C)(ii)) be filled by
vote of a majority of the remaining Directors theretofore elected by
the voting group which elected the Director whose office shall have
become vacant. References in this Section 3(C)(iv) to Directors elected
by a particular voting group shall include Directors elected by such
Directors to fill vacancies, as provided in clause (y) of the foregoing
sentence.
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(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Additional Preferred Stock, as a separate
voting group, to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Preferred Stock, as a separate
voting group, shall terminate, and (z) the number of Directors shall be
such number as may be provided for in, or pursuant to, the Articles of
Incorporation or bylaws irrespective of any increase made pursuant to
the provisions of Section 3(C)(ii) (such number being subject, however,
to change thereafter in any manner provided by law or in the Articles
of Incorporation or bylaws). Any vacancies in the Board of Directors
affected by the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining Directors, even
though less than a quorum.
(D) Except as set forth herein, or as otherwise provided by
law, 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 taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly 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, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends, 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
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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 Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of 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) redeem or 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 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. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Additional Preferred Stock and may be reissued as part of a new series of
Additional Preferred Stock subject to the conditions and restrictions on
issuance set forth herein.
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Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of 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 distributions made ratably on the Series 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 Corporation 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 aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, Share Exchange, etc. In case the
Corporation shall enter into any consolidation, merger, share exchange,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock shall at
the same time be similarly exchanged 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
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the case may be, into which or for which each share of Common Stock is changed
or exchanged. In the event the Corporation 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 set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to the 8%
Preferred Stock and to all series of any other class of the Additional Preferred
Stock.
Section 10. Amendment. The Articles of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds-of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
V.
The period for the duration of the Corporation shall be unlimited.
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VI.
The following provisions are inserted for the regulation and conduct of
the business and affairs of the Corporation and are intended to be in
furtherance, and not in limitation or restriction, of the powers conferred by
the laws of the Commonwealth of Virginia.
1. The Board of Directors of the Corporation shall have the power to
approve and adopt, and from time to time to amend, Bylaws for the regulation and
control of the business of the Corporation, with or without the approval of the
shareholders of the Corporation, but the Bylaws so made, altered or amended may
be altered or repealed by said shareholders.
2. Any officer elected or appointed by the Board of Directors, or by
the Executive Committee, or by the shareholders, or any member of the Executive
Committee, or of any standing committee, may be removed at any time, with or
without cause, in such manner as may be provided in the Bylaws of the
Corporation. Directors of the Corporation may be removed by the shareholders of
the Corporation only for cause and with the affirmative vote of at least
two-thirds of the outstanding shares entitled to vote.
3. The Board of Directors may, before the issue of any new or
additional stock of the Corporation, determine that the same, or any part
thereof, shall be offered in the first instance to all of the then shareholders,
in proportion to the number of shares of stock then held by them respectively,
or may make any other provision or restriction respecting the issue or allotment
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of new or additional shares; but in default of any such determination, or so far
as the same shall not extend, the new or additional shares may be dealt with by
the Board of Directors as in their judgment may seem best.
4. The Corporation in its Bylaws, or by resolutions of its
shareholders or Directors, shall have the right to prescribe reasonable rules
and regulations subject to which the right to inspect the books and accounts of
the Corporation may be exercised by the shareholders conformably to the laws of
the Commonwealth of Virginia.
5. The Directors shall have the power to hold their meetings outside
of the Commonwealth of Virginia. They may keep the books, documents and papers
of the Corporation outside of the Commonwealth of Virginia, at such places as
may be from time to time designated by the officers of the Corporation except as
otherwise required by the laws of Virginia.
6. The Board of Directors may in each year before declaring any
dividend on the capital stock, set apart from the net earnings or surplus
profits of the Corporation an amount of such profits to be determined by them,
or the whole thereof, as working capital, or as a reserve or surplus fund to
cover depreciation or losses, or to meet liabilities or contingencies or for any
other corporate purpose.
7. The Corporation may apply its surplus earnings or cumulated
profits to the purchase or acquisition of its own bonds or other securities and
obligations or the shares of its capital stock, from time to time, to such
extent, in such manner, and
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upon such terms, as the Board of Directors shall determine, subject, however, to
the laws of the Commonwealth of Virginia; and neither property, bonds nor
capital stock so purchased and acquired, nor any of the capital stock taken in
payment or satisfaction of any debt due the Corporation, shall be regarded as
profits, for the purpose of declaring or paying dividends, unless otherwise
determined by a majority of the Board of Directors, or a majority of its
shareholders.
8. The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors consisting of not less than ten
nor more than sixteen Directors, the exact number of Directors to be determined
from time to time by resolution adopted by the affirmative vote of a majority of
the Directors then in office or at least two-thirds of the shares entitled to
vote at a meeting of shareholders. The Directors shall be divided into three
classes, designated as Class I, Class II, and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
Directors constituting the entire Board of Directors. At the 1988 Annual Meeting
of Shareholders, Class I Directors shall be elected for a one-year term, Class
II Directors for a two-year term and Class III Directors for a three-year term.
At each succeeding annual meeting of shareholders beginning in 1989, successors
to the class of Directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of Directors has changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of
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Directors in each class as nearly equal as possible, but in no case will a
decrease in the number of Directors shorten the term of any incumbent Director.
A Director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected, subject, however, to
prior death, resignation, retirement, disqualification or removal from office.
Notwithstanding the foregoing, whenever the holders of any one or more classes
or series of 8% Preferred Stock or Additional Preferred Stock issued by the
Corporation shall have the right, voting separately by class or series, to elect
Directors at an annual or special meeting of shareholders, the election, term of
office, filling of vacancies and other features of such Directorships shall be
governed by the terms of these Articles of Incorporation applicable thereto, and
such Directors so elected shall not be divided into classes pursuant to this
Article VI unless expressly provided by such terms. If the office of any
Director shall become vacant, the Directors, at the time in office, whether or
not a quorum, may, by majority vote of the Directors then in office, choose a
successor who shall hold office until the next annual meeting of shareholders.
In such event, the successor elected by the shareholders at that annual meeting
shall hold office for a term that shall coincide with the remaining term of the
class of Directors to which that person has been elected. Vacancies resulting
from the increase in the number of Directors shall be filled in the same manner.
Notwithstanding any other provision of the Articles of Incorporation or the
Bylaws, the affirmative vote of at least
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two-thirds of the outstanding shares entitled to vote shall be required to
amend, alter, change or repeal, or to adopt any provisions inconsistent with the
purpose and intent of, Sections 2 or 8 of this Article VI.
9. The Board of Directors by resolutions passed by a majority of the
whole board under suitable provisions of the Bylaws, may designate three or more
of their number to constitute an Executive Committee, which Committee shall, for
the time being, as provided in said resolutions or in the Bylaws, have and
exercise any and all the powers of the Board of Directors, which may be lawfully
delegated, in the management of the business and affairs of the Corporation, and
shall have power to authorize the seal of the Corporation to be affixed to all
papers which may require it.
10. Except as otherwise provided in this Article VI and in Articles
IV and VII of the Articles of Incorporation, any (i) amendment of the Articles
of Incorporation, (ii) merger or consolidation with any Person (as defined in
Article VII) or sale, lease, or exchange of all or substantially all of the
Corporation's assets and property to or with any such Person other than in the
usual and regular course of business, and (iii) reclassification of securities
or recapitalization, shall be approved by the affirmative vote of a majority of
the shares outstanding and entitled to vote at a meeting of shareholders duly
called for such purpose.
11. The stock of the Corporation which has been declared by law and
by the Board of Directors to be fully paid stock, shall
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not be liable to any further call thereof, nor shall the holder or owner thereof
be liable for any further payment thereon, anything in any law of any other
state, territory, dependency or country now in force or hereafter enacted to the
contrary notwithstanding.
VII.
In the event that the holders of the Common Stock of the Corporation
are entitled to vote on (i) a merger or consolidation with any Person (as
hereinafter defined) or on a proposal that the Corporation sell, lease or
exchange substantially all of its assets and property to or with any Person or
that any Person sell, lease or exchange substantially all of its assets and
property to or with the Corporation, and such Person owns or controls, directly
or indirectly, Common Stock representing ten percent (10%) or more of the voting
power of the Corporation at the record date for determining shareholders
entitled to vote or (ii) any reclassification of securities, recapitalization or
other transaction (except redemptions permitted by the terms of the security
redeemed or repurchases of the securities for cancellation or the Corporation's
treasury) designed to decrease the number of holders of the Corporation s Common
Stock remaining after any Person has acquired ten percent (10%) of the Common
Stock of the Corporation, the favorable vote of not less than eighty percent
(80%) of all of the votes which the holders of the issued and outstanding Common
Stock of the Corporation are entitled to cast thereon shall be required for the
approval of
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any such action; provided, however, that the foregoing shall not apply to any
such merger, consolidation or such sale, lease or exchange of assets and
property or such reclassification or recapitalization which was approved by
resolutions of the Board of Directors of the Corporation prior to the
acquisition of the ownership or control of Common Stock representing at least
ten percent (10%) of the voting power of the Corporation by any such Person.
For the purpose hereof, a "Person" shall mean any corporation,
partnership, association, trust (other than any trust holding stock of the
employees of the Corporation pursuant to any stock purchase, ownership or
employee benefit plan of the Corporation), business entity, estate or individual
or any Affiliate (as hereinafter defined of any of the foregoing. An "Affiliate"
shall mean any corporation, partnership, association, trust, business entity,
estate or individual who, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
a Person. "Control" shall mean the possession, directly or indirectly, of 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.
This Article VII may not be amended, nor may it be repealed in whole or
in part, until authorized by the favorable vote of not less than eighty percent
(80%) of all of the votes entitled to be cast thereon by the holders of the
issued and outstanding Common Stock of the Corporation entitled to vote unless
at the
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time any such proposed amendment or repeal is submitted to vote of the
shareholders of the Corporation entitled to vote there is no Person owning or
controlling ten percent (10%) or more of the Common Stock of the Corporation, in
which event this Article VII may be so amended or repealed by the favorable vote
of not less than such number of votes as shall otherwise be required by law at
such time to effect such amendment or repeal.
Nothing herein shall affect the voting rights of the holders of the
Preferred Stock of the Corporation.
VIII.
1. To the full extent that the Virginia Stock Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of Directors or officers, a Director or officer of
the Corporation shall not be liable to the Corporation or its shareholders for
any monetary damages in excess of one dollar.
2. The Corporation shall indemnify a Director or officer of the
Corporation who is or was a party to any proceeding by reason of the fact that
he is or was such a Director or officer or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
profit or nonprofit enterprise against all liabilities and expenses incurred in
the proceeding except such liabilities and expenses as are incurred because of
his willful misconduct or knowing violation of the criminal law. Unless a
determination
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has been made that indemnification is not permissible, the Corporation shall
make advances and reimbursements for expenses incurred by a Director or officer
in a proceeding upon receipt of an undertaking from him to repay the same if it
is ultimately determined that he is not entitled to indemnification. Such
undertaking shall be an unlimited, unsecured general obligation of the Director
or officer and shall be accepted without reference to his ability to make
repayment. The Board of Directors is hereby empowered, by majority vote of a
quorum of disinterested Directors, to contract in advance to indemnify and
advance the expenses of any Director or officer.
3. The Board of Directors is hereby empowered, by majority vote of a
quorum of disinterested Directors, to cause the Corporation to indemnify or
contract in advance to indemnify any person not specified in Section 2 of this
Article VIII who was or is a party to any proceeding, by reason of the fact that
he is or was an employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other profit or non-profit enterprise, to the same extent as if such person was
specified as one to whom indemnification is granted in Section 2.
4. The Corporation may purchase and maintain insurance to indemnify
it against the whole or any portion of the liability assumed by it in accordance
with this Article and may also procure insurance, in such amounts as the Board
of Directors may determine, on behalf of any person who is or was a Director,
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officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit or other
enterprise, against any liability asserted against or incurred by such person in
any such capacity or arising from his status as such, whether or not the
Corporation would have power to indemnify him against such liability under the
provisions of this Article VIII.
5. In the event there has been a change in the composition of a
majority of the Board of Directors after the date of the alleged act or omission
with respect to which indemnification is claimed, any determination as to
indemnification and advancement of expenses with respect to any claim for
indemnification made pursuant to Section 2 of this Article VIII shall be made by
special legal counsel agreed upon by the Board of Directors and the proposed
indemnitee. If the Board of Directors and the proposed indemnitee are unable to
agree upon such special legal counsel, the Board of Directors and the proposed
indemnitee each shall select a nominee, and the nominees shall select such
special legal counsel.
6. The provisions of this Article VIII shall be applicable to all
actions, claims, suits or proceedings commenced after the adoption hereof,
whether arising from any action taken or failure to act before or after such
adoption. No amendment, modification or repeal of this Article shall diminish
the rights provided hereby or diminish the right to indemnification with respect
to any claim, issue or matter in any then pending or subsequent
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proceeding that is based in any material respect on any alleged action or
failure to act prior to such amendment, modification or repeal.
7. Reference herein to directors, officers, employees or agents
shall include former directors,, officers, employees and agents and their
respective heirs, executors and administrators.
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