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EXHIBIT 3
Restated Charter, as amendned
(restated electronically for
SEC filing purpose only)
CHARTER
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RESTATED CHARTER
OF
GENESCO INC.
INDEX
PART I
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1 FIRST: Name of Corporation
1 SECOND: Duration of Corporation
1 THIRD: Principal Office
1 FOURTH: Motive of Corporation
1 FIFTH: Business Purpose of Corporation
1 SIXTH: Authorized Stock and Preferences, Restrictions
and Qualifications of Preferred and Preference Stock
PART A -- CUMULATIVE CONVERTIBLE PREFERRED STOCK
3 (1) Dividends
3 (2) Liquidation
4 (3) Redemption
6 (4) Voting Powers
9 (5) Sinking Fund
9 (6) Conversion
PART B-1 -- SUBORDINATED CUMULATIVE CONVERTIBLE
PREFERENCE STOCK -- GENERAL PROVISIONS
16 (1) Dividends
17 (2) Liquidation
17 (3) Redemption
19 (4) Conversion
22 (5) Reduction of Capital
PART B-II -- SERIES A SUBORDINATED PREFERENCE STOCK
22 (1) Dividends
22 (2) Redemption
22 (3) Liquidation
22 (4) Conversion
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23 (5) Voting Powers
PART B-III -- SERIES B SUBORDINATED PREFERENCE STOCK
23 (1) Dividends
23 (2) Redemption
23 (3) Purchase Fund
24 (4) Liquidation
24 (5) Conversion
24 (6) Voting Powers
PART B-IV -- SERIES C SUBORDINATED PREFERENCE STOCK
25 (1) Dividends
25 (2) Redemption
25 (3) Purchase Fund
26 (4) Liquidation
26 (5) Conversion
26 (6) Voting Powers
PART C-I -- SUBORDINATED SERIAL PREFERRED STOCK --
GENERAL PROVISIONS
26 (1) Dividends
26 (2) Liquidation
27 (3) Redemption
28 (4) Conversion
31 (5) Distinguishing Characteristics of the Series
32 (6) Reduction of Capital
PART C-II -- SUBORDINATED SERIAL PREFERRED STOCK,
SERIES 1
33 (1) Dividends
33 (2) Liquidation
34 (3) Redemption
34 (4) Conversion
34 (5) Voting Powers
34 (6) Status of Unissued and Reacquired Shares
35 (7) Exchanges for Junior Stock
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PART C-III -- SUBORDINATED SERIAL PREFERRED STOCK,
SERIES 2
35 (1) Dividends
36 (2) Liquidation
37 (3) Redemption
37 (4) Sinking Fund
37 (5) Conversion
37 (6) Voting Powers
38 (7) Status of Unissued and Reacquired Shares
38 (8) Exchanges for Junior Stock
PART C-IV -- SUBORDINATED SERIAL PREFERRED STOCK,
SERIES 3
38 (1) Dividends
39 (2) Liquidation
40 (3) Redemption
40 (4) Conversion
40 (5) Voting Powers
40 (6) Status of Unissued and Reacquired Shares
40 (7) Exchanges for Junior Stock
PART C-V -- SUBORDINATED SERIAL PREFERRED STOCK,
SERIES 4
41 (1) Dividends
42 (2) Liquidation
42 (3) Redemption
42 (4) Conversion
43 (5) Voting Powers
43 (6) Status of Unissued and Reacquired Shares
43 (7) Exchanges for Junior Stock
44 PART C-VI-- SUBORDINATED SERIAL PREFERRED STOCK.
SERIES 5
PART C-VII -- SUBORDINATED SERIAL PREFERRED STOCK
SERIES 6
44 (1) Dividends
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45 (2) Voting Rights
46 (3) Certain Restrictions
47 (4) Reacquired Shares
47 (5) Liquidation
48 (6) Consolidation, Merger, etc.
48 (7) No Redemption or Conversion
48 (8) Relative Rights and Preferences
PART D -- SUBORDINATED CUMULATIVE PREFERRED STOCK
48 (1) Dividends
49 (2) Liquidation
49 (3) Redemption
51 (4) Voting Powers
51 (5) Reduction of Capital
PART E -- EMPLOYEES' SUBORDINATED CONVERTIBLE
PREFERRED STOCK
51 (1) Dividends
51 (2) Liquidation
52 (3) Redemption
52 (4) Voting Rights
52 (5) Conversion
PART F -- COMMON STOCK
55 SEVENTH: Payment of Initial Capitalization
55 EIGHTH: Reduction of Capital Stock
55 NINTH: Vote Required to Approve Business Combinations
61 TENTH: Limitation of Director's Liability
PART II
62 FIRST: Date of Filing of Original Charter and
Reincorporation Charter
62 SECOND: Restatement of Charter dated January 11, 1984
62 THIRD: Restatement of Charter dated April 30, 1991
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RESTATED CHARTER
OF
GENESCO INC.
UNDER SECTION 48-20-107 OF THE
TENNESSEE BUSINESS CORPORATION ACT
Pursuant to the provisions of Section 48-20-17 of the Tennessee
Business Corporation Act, the undersigned Corporation adopts the following
restated charter:
PART I:
FIRST: The name of the Corporation is Genesco Inc.
SECOND: The duration of the Corporation is perpetual.
THIRD: The address of the principal office of the Corporation in the
State of Tennessee shall be Genesco Park, City of Nashville, County of Davidson.
FOURTH: The Corporation is for profit.
FIFTH: The purpose or purposes for which the Corporation is organized
are:
(1) to manufacture, buy or otherwise acquire and to hold, sell or
otherwise dispose of goods, products, merchandise and other personal property of
every nature and description, including, but not limited to, boots, shoes and
other articles of wearing apparel.
(2) to buy or otherwise acquire and to hold, sell or otherwise dispose
of the stocks, bonds and other securities of any corporation, domestic or
foreign; to exercise any and all rights, powers and privileges of individual
ownership or interest in respect of any and all such securities; to manage and
to aid in any manner, by loan, guaranty or otherwise, any corporation or
corporations of which any securities are held by this corporation; and do any
acts or things necessary, expedient or calculated to protect, preserve or
enhance the value of any such securities.
SIXTH: The maximum number of shares of stock which the Corporation is
authorized to have outstanding at any time is eighty million (80,000,000) shares
of Common Stock of the par value of one dollar ($1.00) per share (hereinafter
sometimes called "Common Stock"); three thousand seven hundred five (3,705)
shares of Cumulative Convertible Preferred Stock without nominal or par value
(hereinafter sometimes called "Convertible Preferred Stock"); four hundred
ninety nine thousand six hundred ten (499,610) shares of
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Subordinated Cumulative Convertible Preference Stock without nominal or par
value (hereinafter sometimes called "Subordinated Preference Stock"); three
million (3,000,000) shares of Subordinated Serial Preferred Stock without
nominal or par value (hereinafter sometimes called "Serial Preferred Stock");
five million (5,000,000) shares of Subordinated Cumulative Preferred Stock
without nominal or par value (hereinafter sometimes called "Cumulative Preferred
Stock"); and five million (5,000,000) shares of Employees' Subordinated
Convertible Preferred Stock without nominal or par value (hereinafter sometimes
called "Employees' Preferred Stock"). The Subordinated Preference Stock shall
consist of three separate classes (such separate classes being herein for
convenience sometimes referred to as "Series") designated Subordinated
Cumulative Convertible Preference Stock, Series A (hereinafter sometimes called
"Series A Subordinated Preference Stock") of which sixty eight thousand nine
hundred forty three (68,943) shares have been authorized; Subordinated
Cumulative Convertible Preference Stock, Series B (hereinafter sometimes called
"Series B Subordinated Preference Stock") of which one hundred sixty one
thousand three hundred seventy six (161,376) shares have been authorized; and
Subordinated Cumulative Convertible Preference Stock, Series C (hereinafter
sometimes called "Series C Subordinated Preference Stock") of which two hundred
sixty nine thousand two hundred ninety one (269,291) shares have been
authorized. The Serial Preferred Stock shall consist of such number of classes
(such separate classes being herein for convenience sometimes referred to as
"Series") containing such number of shares and having such distinctive
designations and provisions as the Board of Directors, acting pursuant to the
power delegated to them by the stockholders in accordance with Section 48-16-102
of the Tennessee Business Corporation Act as set forth in Section (5) of Part
C-I of this Article Sixth, shall determine.
No holder of any class of stock of the Corporation shall be
entitled as of right to purchase or subscribe for any part of any class of stock
of the Corporation now authorized or hereafter authorized by or pursuant to any
amendment to the charter of the Corporation, or of any bonds, certificates of
indebtedness, debentures, or other securities convertible into or evidencing
rights to purchase or subscribe for any stock of the Corporation; and any stock
now authorized or any such additional authorized issue of any stock or any
securities convertible into or evidencing rights to purchase or subscribe for
stock may be issued and disposed of by the Board of Directors to such firms,
persons, corporations or associations for such consideration and upon such terms
and in such manner as the Board of Directors may in their discretion determine
without offering any thereof on the same terms, or on any terms, to the
stockholders, or to any class of stockholders. The Board of Directors shall have
authority to the extent permitted by law to determine that only a part of the
consideration which shall be received by the Corporation for any of the shares
of its stock which it shall issue from time to time shall be capital.
The preferences, restrictions and qualifications applicable to the
Convertible Preferred Stock, all classes or Series of the Subordinated
Preference Stock, all classes or Series
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of the Serial Preferred Stock, the Cumulative Preferred Stock, the Employees'
Preferred Stock and Common Stock are as follows:
PART A -- CUMULATIVE CONVERTIBLE PREFERRED STOCK
(1) DIVIDENDS. The holders of shares of Convertible Preferred Stock
shall be entitled to receive dividends at the rate of $4.50 per share per annum,
when and as declared by the Board of Directors, before any dividends are paid on
the Subordinated Preference Stock of any Series, Serial Preferred Stock of any
Series, Cumulative Preferred Stock, or the Common Stock. Such dividends shall be
payable quarterly on the last days of January, April, July and October of each
year and shall be cumulative from the initial date on which shares are issued.
Dividends on the Convertible Preferred Stock shall be cumulative so
that if, for any previous or then current dividend period, dividends (whether or
not earned) shall not have been paid, or declared and set apart for payment,
upon all outstanding shares of Convertible Preferred Stock, the deficiency shall
be fully paid, or declared and set apart for payment, before any dividends are
paid or declared upon the Subordinated Preference Stock of any Series, Serial
Preferred Stock of any Series, Cumulative Preferred Stock, or the Common Stock.
Accumulated dividends shall not bear interest. Subject to the provisions of this
Part A, whenever full cumulative dividends on the Convertible Preferred Stock
for all previous dividend periods and for any then current dividend period shall
have been paid, or declared and set apart for payment, the Board of Directors
may declare, subject to the other provisions of this Article Sixth, dividends
upon the Subordinated Preference Stock, Serial Preferred Stock, Cumulative
Preferred Stock and the Common Stock payable then or thereafter, and no holder
of any shares of Convertible Preferred Stock, as such, shall be entitled to
share therein.
(2) LIQUIDATION. Upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Convertible
Preferred Stock shall be entitled to be paid from the assets (whether capital or
surplus) of the Corporation the following amounts:
(i) upon involuntary dissolution, liquidation or winding up,
$100 per share,
(ii) upon voluntary dissolution, liquidation or winding up, an
amount per share equal to the redemption price prevailing on the date
on which such dissolution shall have become legally effective or such
liquidation or winding up shall have been authorized,
plus, in every case, an amount equal to all accumulated and unpaid dividends
accrued to the date fixed for final distribution to such holders, whether or not
earned or declared, before any payment or distribution shall be made to the
holders of the Subordinated Preference Stock of
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any Series, Serial Preferred Stock of any Series, Cumulative Preferred Stock,
Employees' Preferred Stock, or the Common Stock. After payment in full of such
amounts to the holders of the Convertible Preferred Stock, the holders of the
Convertible Preferred Stock, as such, shall have no right or claim to any of the
remaining assets of the Corporation and the same shall be distributed to the
holders of the Subordinated Preference Stock, Serial Preferred Stock, Cumulative
Preferred Stock, Employees' Preferred Stock, and the Common Stock in accordance
with their respective rights hereunder.
(3) REDEMPTION. Subject to the restrictions set forth in this Section
(3), the Corporation may at any time redeem the Convertible Preferred Stock, or
any part thereof, either at the option of the Board of Directors or pursuant to
the sinking fund provided for in Section (5) of this Part A at the then
applicable redemption price plus an amount equal to all accumulated and unpaid
dividends accrued to the redemption date on the shares redeemed, whether or not
earned or declared, provided, however that not less than 30 nor more than 60
days prior to the date fixed for redemption, a notice specifying the time and
place of redemption and the redemption price shall be given to the holders of
record of the Shares to be redeemed by publication of such notice in one
newspaper published and of general circulation in the City of Nashville,
Tennessee, and in one newspaper published and of general circulation in the
Borough of Manhattan, the City of New York, and by mailing such notice to such
holders at their addresses, if any, as the same appear upon the stock registry
books; provided, however, that if all shares of Convertible Preferred Stock are
to be redeemed, no failure so to mail such notice nor any defect therein or in
the mailing thereof shall affect the validity of such redemption.
The redemption price of shares of Convertible Preferred Stock
redeemed at the option of the Board of Directors shall be $104.50 per share if
redeemed on or prior to January 31, 1968; $103.50 per share if redeemed after
January 31, 1968, but on or prior to January 31, 1973; $102.50 per share if
redeemed after January 31, 1973, but on or prior to January 31, 1978; $101.50 if
redeemed after January 31, 1978, but on or prior to January 31, 1983; and
$100.00 per share if redeemed thereafter. The redemption price of shares of
Convertible Preferred Stock redeemed pursuant to the Sinking Fund provided for
in Section (5) of this Part A shall be $100.00 per share.
If less than all outstanding shares of Convertible Preferred Stock
are to be redeemed and except as otherwise hereinafter required by the
provisions of this Section (3), the shares to be redeemed may be selected by the
Board of Directors by lot or in any other manner which the Board of Directors in
its unrestricted discretion may deem to be fair and, in such case, the notice of
redemption mailed as aforesaid shall inform each registered holder of shares
called for redemption of the total number of shares registered in his name that
have been called for redemption, but the notice of redemption to be published as
aforesaid need not contain such information. At any time after notice of
redemption shall have been given as hereinabove
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provided, or after the Corporation shall have given to the bank or trust company
hereinafter referred to irrevocable authorization to give or complete the giving
of such notice, the Corporation may deposit authorization to give or complete
the giving of such notice, the Corporation may deposit or cause to be deposited
in trust, to be applied to the redemption of the shares of Convertible Preferred
Stock so called for redemption, with a bank or trust company organized and doing
business under the laws of the United States of America or the State of New York
and having capital, surplus and undivided profits aggregating at least Ten
Million Dollars ($10,000,000) and having its principal office in the Borough of
Manhattan, the City of New York, the aggregate amount to be paid on redemption
to the holders of the shares so to be redeemed upon surrender of the
certificates for such shares; and upon the deposit of such money as aforesaid,
or, if no such deposit is made then, from and after said redemption date, unless
default is made in the payment of the redemption price when due, the shares so
called for redemption shall cease to be outstanding, and the holders thereof
shall cease to be stockholders with respect to such shares and shall have no
interest in or claim against the Corporation with respect to such shares other
than to receive such moneys on or after the date fixed for redemption as
aforesaid from the said bank or trust company or from the Corporation, as the
case may be, without interest thereon, upon surrender of their certificates
(with endorsement thereof if required). In case any holder of shares of
Convertible Preferred Stock which shall have been called for redemption shall
not, within six (6) years after any such deposit, have claimed the amount
deposited with respect to the redemption thereof, such bank or trust company,
upon demand, shall pay over to the Corporation such unclaimed amount and shall
thereupon be relieved of all responsibility in respect thereof to such holder,
and such holder shall look only to the Corporation for the payment thereof. Any
interest accrued on funds so deposited shall be paid to the Corporation from
time to time.
So long as any shares of Convertible Preferred Stock remain
outstanding, all shares of Convertible Preferred Stock redeemed pursuant to the
provisions of this Section (3), either at the option of the Board of Directors
or pursuant to the Sinking Fund provided for in Section (5) of this Part A, or
for which credit shall have been taken against such Sinking Fund, or surrendered
upon conversion pursuant to Section (6) of this Part A and all shares of any
other class of stock ranking equally as to dividends or assets with the
Convertible Preferred Stock purchased or redeemed at the option of the Board of
Directors or pursuant to the provisions of any sinking fund or purchase or
redemption account for the purchase or redemption of such shares or for which
credit shall have been taken against any such sinking fund, purchase or
redemption account, or surrendered in exchange for shares of Convertible
Preferred Stock, shall be cancelled and shall not thereafter be reissued or sold
or otherwise disposed of. The Corporation agrees, subject to obtaining any
necessary vote of stockholders, from time to time, to effect the retirement of
all such shares and to reduce the amount of its authorized capital stock
accordingly.
If at any time the Corporation shall have failed to pay dividends
in full on all shares of Convertible Preferred Stock and any class of stock of
the Corporation ranking as to
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dividends or assets equally with the Convertible Preferred Stock, or shall be in
default in respect of its obligations under any sinking fund or purchase or
redemption account for the purchase or redemption of Convertible Preferred Stock
or any such pari passu stock, then, and until all arrearages of such dividends
for all preceding dividend periods and for any current dividend period or
periods shall have been paid or declared and set apart for payment and all such
defaults under such sinking funds or purchase or redemption accounts shall have
been remedied, neither the Corporation or any subsidiary shall purchase or
redeem, at the option of the Board of Directors or pursuant to the provisions of
any such sinking fund or purchase or redemption account (except, if all such
dividend arrearages shall then have been paid or provided for, to the extent
required to cure such defaults in such sinking funds or purchase or redemption
accounts, in amounts proportionate to the amounts due respectively thereunder)
or otherwise acquire for value any shares of Convertible Preferred Stock or any
class of stock of the Corporation ranking as to dividends or assets equally with
or junior to the Convertible Preferred Stock and the Corporation shall not
declare or pay any dividend or make any other distribution on any shares of such
junior stock.
(4) VOTING POWERS. (a) Except as herein or by statute specifically
provided, the holders of Convertible Preferred Stock shall have no voting
powers, nor shall they be entitled to notice of any meeting of stockholders of
the Corporation. If at any time the Corporation shall be in arrears in dividends
on any shares of Convertible Preferred Stock in an amount equal to four full
quarterly dividends thereon, then, until all arrearages of dividends accumulated
on all shares of Convertible Preferred Stock for all preceding and the then
current dividend periods shall have been paid or declared and set apart for
payment, or if at any time the Corporation shall be in default with respect to
the sinking fund redemption requirements of Section (5) of this Part A, then,
until such requirement has been complied with, and no longer, the holders of the
Convertible Preferred Stock, voting separately as a class, shall have the sole
right, to the exclusion of any other class of stock, at all annual and special
meetings of the stockholders of the Corporation at which directors are to be
elected, to vote for and elect two (2) directors. At all annual or special
meetings for election of directors so long as such right to elect directors
shall continue, the holders of the Convertible Preferred Stock, voting
separately as a class, shall vote for and elect the directors which they are
entitled to elect as aforesaid, and thereafter the holders of the Common Stock
and of any other stock of the Corporation having voting powers, in accordance
with their respective rights, shall vote for and elect the remaining directors.
At any meeting of the stockholders at which the holders of the Convertible
Preferred Stock shall have the right to vote, they shall have one vote for each
share. The holders of the Convertible Preferred Stock shall be entitled to
notice of any meeting of the stockholders called for the election of directors
at which such holders shall be entitled to vote as in this Section (4) provided,
and at any such election the holders of the shares of Convertible Preferred
Stock represented at the meeting shall constitute a quorum for the election of
the directors whom the holders of shares of Convertible Preferred Stock are
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entitled to elect, and a plurality of all votes of the Convertible Preferred
Stock represented at the meeting shall be sufficient to elect such directors.
Whenever all arrearages of dividends on the Convertible Preferred
Stock as aforesaid shall have been paid or declared and set apart for payment,
and all redemptions required by the Sinking Fund provided for in Section (5) of
this Part A have been made or funds sufficient for such purposes have been
deposited in accordance with the provisions of Section (3) of this Part A, all
powers of the holders of the Convertible Preferred Stock to vote for directors
shall terminate and the terms of office of all directors elected by them shall
forthwith automatically come to an end.
If the date upon which such right of the holders of the Convertible
Preferred Stock shall become vested shall be more than one hundred twenty days
preceding the date of the next ensuing annual meeting of stockholders as fixed
by the Bylaws of the Corporation, the President of the Corporation shall, as
promptly as practicable after delivery to the Corporation at its principal
office of a request to such effect signed by the holders of at least five
percent (5%) of the Convertible Preferred Stock then outstanding, call a special
meeting of the holders of the stock of the Corporation entitled to vote for the
election of directors, to be held within fifty days after the delivery of such
request, for the purpose of electing a new Board of Directors to serve until the
next annual meeting and until their successors shall be elected and shall
qualify. Notice of such meeting shall be mailed to each such stockholder not
less than ten days prior to the date of such meeting. The term of office of all
directors of the Corporation shall terminate at the time of any such meeting
held for the purpose of electing a new Board of Directors, notwithstanding that
the term for which such directors had been elected shall not then have expired.
Whenever the holders of Convertible Preferred Stock shall be
entitled to elect two directors, any holder of such Convertible Preferred Stock
shall have the right, during regular business hours, in person or by duly
authorized representative, to examine and to make transcripts of the stock
records of the Corporation for the Convertible Preferred Stock for the purpose
of communicating with other holders of such Convertible Preferred Stock with
respect to the exercise of such right of election.
If, during any interval between annual meetings of stockholders for
the election of directors and while the holders of the Convertible Preferred
Stock shall be entitled to elect two directors, the number of directors in
office who have been so elected by the holders of the Convertible Preferred
Stock or who succeeded a director so elected shall, by reason of resignation,
death or removal, be less than two, such vacancy shall be filled by vote of the
remaining director then in office who was elected by vote of the holders of the
Convertible Preferred Stock or succeeded a director so elected or, if there be
no such remaining director then in office or if such vacancy or vacancies be not
so filled within forty days after the creation thereof, the President of the
Corporation shall promptly call a special meeting of the
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holders of the Convertible Preferred Stock and such vacancy or vacancies shall
be filled by vote at such special meeting.
Any director elected by the holders of the Convertible Preferred
Stock or who succeeded a director so elected may be removed from office by vote
of the holders of a majority of the shares of such stock. A special meeting of
the holders of shares of such stock may be called by a majority vote of the
Board of Directors for the purpose of removing such a director. The President of
the Corporation shall, as promptly as practicable after delivery to the
Corporation at its principal office of a request to such effect signed by the
holders of at least five percent (5%) of the outstanding shares of Convertible
Preferred Stock, call a special meeting of the holders of such stock for such
purpose to be held within fifty days after the delivery of such request.
(b) So long as any Convertible Preferred Stock shall be
outstanding, the Corporation shall not without the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of all shares of
Convertible Preferred Stock at the time outstanding (but may do so with such
vote when so authorized by its Board of Directors and also by vote of the
holders of any other class of stock which may then be required) (i) authorize or
create or increase the authorized amount of any stock ranking as to dividends or
assets prior to the Convertible Preferred Stock or any security convertible into
or exchangeable for or carrying rights to purchase any such prior stock, or (ii)
otherwise alter, change or cancel any of the provisions, preferences, rights or
powers of any shares of Convertible Preferred Stock in any manner which will
adversely affect any shares of Convertible Preferred Stock then outstanding.
(c) So long as any Convertible Preferred Stock shall be
outstanding, the Corporation shall not without the affirmative vote of the
holders of at least fifty percent (50%) of all shares of Convertible Preferred
Stock at the time outstanding (but may do so with such vote when so authorized
by its Board of Directors and also by vote of the holders of any other class of
stock which may then be required) (i) authorize or create or increase the
authorized amount of any other class of stock ranking as to dividends or assets
equally with the Convertible Preferred Stock or any security convertible into or
exchangeable for or carrying rights to purchase any such pari passu stock, or
increase the authorized amount of the Convertible Preferred Stock or (ii) merge
or consolidate with or into any other corporation or transfer or lease its
property and assets as an entirety or substantially as an entirety; provided,
however, that this restriction shall to apply to, nor shall it operate to
prevent, the consolidation or merger of the Corporation with or into another
corporation if none of the provisions, preferences, rights or powers of the
Convertible Preferred Stock or the holders thereof will be adversely affected
thereby and if the corporation resulting from or surviving such consolidation or
merger is a corporation organized under the laws of the United States of America
or any state thereof and operating primarily in the United States of America,
and will have authorized and outstanding, after such consolidation or merger, no
stock of any class or other securities
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ranking prior to or on a parity with the Convertible Preferred Stock (except the
same number of shares of stock and the same amount of other securities with the
same rights and preferences as the stock and securities of the Corporation
authorized and outstanding immediately preceding such consolidation or merger)
and if each holder of Convertible Preferred Stock at the time of such
consolidation or merger will receive or retain the same number of shares, with
the same provisions, preferences, rights and powers, of the resulting or
surviving corporation as he held of the Convertible Preferred Stock.
(5) SINKING FUND. (a) On December 31, 1974, and on each December 31
thereafter until all outstanding shares of Convertible Preferred Stock have been
redeemed, the Corporation will redeem at the Sinking Fund redemption price
stated in Section (3) of this Part A a number of shares of Convertible Preferred
Stock equal to five percent (5%) of the number of shares of Convertible
Preferred Stock outstanding on December 31, 1973, each such redemption to be
made upon the notice and with the effect specified in Section (3) of this Part
A; provided, however, that the Corporation may at its option and on a cumulative
basis credit against such required redemption shares of Convertible Preferred
Stock which have been (1) converted into shares of Common Stock or (2) purchased
or redeemed other than pursuant to the Sinking Fund after December 31, 1973, and
not previously credited against such required redemptions.
(b) The Corporation shall in no event be obligated to apply to the
redemption of Convertible Preferred Stock any funds not legally available
therefor under the laws of the State of Tennessee but any such redemptions so
deferred shall be made promptly after, and to the full extent that, any funds of
the Corporation become legally available for such purpose thereafter. If at any
time the Corporation shall, for any reason, have failed to effect the redemption
pursuant to Paragraph (a) of this Section (5) of the total number of shares of
Convertible Preferred Stock theretofore required to be redeemed by the
provisions of such paragraph, the Corporation shall be deemed to be in default
in its Sinking Fund obligations for the purposes of Sections (3) and (4) of this
Part A.
(6) CONVERSION. (a) At the option of the holder thereof, each share of
Convertible Preferred Stock may be converted at any time on or prior to the date
fixed for the redemption thereof into a number of fully paid and nonassessable
shares of Common Stock of the Corporation determined by dividing $100 by the
conversion price per share of Common Stock in effect at the time of such
conversion.
(b) The initial conversion price per share of Common Stock for the
conversion of shares of the Convertible Preferred Stock shall be $40.00. Such
conversion price shall be subject to adjustment from time to time as follows:
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(1) Except as provided in Subsection (b)(3) of this Section (6), if
the Corporation shall issue or sell any shares of Common Stock for a
consideration per share less than the conversion price in effect at the time of
issue, or without consideration, the conversion price shall forthwith be
adjusted to a price determined by dividing:
(i) an amount equal to the sum of (1) the number of shares of
Common Stock outstanding on the date of initial issue of shares of
Convertible Preferred Stock, multiplied by the initial conversion
price determined by the Board of Directors as above provided, plus
(2) the sum of the consideration, if any, received by the
Corporation upon such issuance or sale of common stock and the
aggregate consideration received by the Corporation (computed as
herein provided) for all other shares of its Common Stock issued
after the date of initial issue of shares of Convertible Preferred
Stock, up to the time of such issuance or sale, minus (3) the
aggregate amount of all dividends and other distributions paid or
made on the Common Stock after the date of initial issue of the
Convertible Preferred Stock, other than in cash out of the earned
surplus of the Corporation or in Common Stock or options or rights
to subscribe for Common Stock, by
(ii) the number of shares of Common Stock outstanding
immediately after such issuance or sale including shares held in
the Corporation's treasury.
Except as provided in Subsection (b)(3) of this Section, upon each such
subsequent issue and sale of shares of Common Stock of the Corporation for a
consideration per share less than the conversion price in effect at the time of
issue, or without consideration, then the conversion price as so adjusted shall
be forthwith adjusted in the same manner as specified above. Adjustments
resulting from the issuance of additional shares of Common Stock shall require a
change in the conversion price only when and each time the accumulative net
effect of all such adjustments not theretofore taken into account would cause
the conversion price then in effect to be reduced by 25 cents per share or more.
Notwithstanding the foregoing provisions, no adjustment of the conversion price
shall be made if, under the terms thereof, the adjusted conversion price as so
computed would equal or exceed the conversion price in effect at the time of
such issue.
For the purpose of this subsection, the following provisions shall
be applicable:
(A) In the case of issuance or sale of shares of Common Stock for
cash, the consideration shall be deemed to be the cash proceeds received
by the Corporation before deducting any usual and customary commissions
or other expenses incurred in connection therewith.
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(B) In the case of issuance or sale of shares of Common Stock
(otherwise than upon conversion or exchange of securities by their terms
convertible or exchangeable into Common Stock) for a consideration other
than cash, the amount of such consideration shall be deemed to be the
fair value thereof (as determined by the Board of Directors of the
Corporation) irrespective of the accounting treatment thereof. In the
case of any dividend or distribution on the Common Stock, other than in
cash or Common Stock or options or rights to subscribe for Common Stock,
the amount of such dividend or distribution shall be deemed to be the
fair value thereof (as determined by the Board of Directors of the
Corporation) irrespective of the accounting treatment thereof.
(C) In the case of issuance of shares of Common Stock as a stock
dividend, the shares shall be deemed to have been issued without
consideration at the close of business on the dividend record date. If no
dividend record date is fixed, the last business day preceding the first
day during which the transfer books of the Corporation shall be closed in
connection with the dividend shall be treated as the dividend record
date. For the purposes of this Section (6), a stock dividend shall
consist of a distribution of Common Stock of the Corporation in
connection with which the Corporation shall capitalize earned surplus in
an amount approximately equal to the market value of such Common Stock at
the date of declaration. Any other dividend in Common Stock of the
Corporation shall be considered a subdivision of its outstanding shares
of Common Stock under subsection (b)(2) and adjustment shall be made
under subsection (b)(2) accordingly.
(D) If the Corporation shall have outstanding options or rights to
subscribe for shares of Common Stock or shall have outstanding any
securities by their terms convertible into or exchangeable for shares of
Common Stock (excluding shares which may be issued or sold pursuant to
subsection (b)(3) without the reduction of the conversion price);
(i) the aggregate number of shares of Common Stock deliverable
under such options or rights shall be considered to be outstanding
and to have been issued or sold at the time such options or rights
were issued and the maximum number of shares of Common Stock
initially deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities shall be considered to
be outstanding and to have been issued or sold at the time of
issuance or sale of such securities; and the conversion price shall
be adjusted upon the issue of any such options, rights or
securities in accordance with this subsection (b) and in such
adjustment and for the purposes of all computations under this
subsection (b) the consideration for any such shares of Common
Stock considered to be outstanding shall be considered to be (x) in
the case of
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options or rights, the minimum purchase price provided in such
options or rights, plus the consideration, if any, received by the
Corporation for such rights; and (y) in the case of convertible or
exchangeable securities, the consideration, if any, received for
such securities before deducting usual and customary commissions
and expenses in connection with the sale thereof plus the minimum
additional consideration receivable by the Corporation upon the
conversion or exchange, in each case computing such consideration
in the manner provided by paragraphs (A) and (B) above; provided,
that there shall be excluded from any such computation any share of
Common Stock so issuable and the consideration so considered to
have been received therefor where such consideration for such share
amounts to more than the conversion price immediately prior to the
computation;
(ii) on the expiration of such options or rights, or the
termination of such right to convert or exchange, the conversion
price shall forthwith be adjusted to reflect the fact that such
options or rights are no longer outstanding or the termination of
such right to convert or exchange; and
(iii) in the event that, prior to the expiration of such
options or rights or the termination of such right to convert or
exchange, the consideration payable on the issuance, sale or
delivery of the shares of Common Stock shall increase or decrease,
or the number of shares of Common Stock shall increase or decrease,
or the number of shares of Common Stock deliverable upon conversion
of or in exchange for any such convertible or exchangeable security
shall increase or decrease, the conversion price shall forthwith be
readjusted to such conversion price as would have been obtained had
the adjustment made upon issuance of such options, rights or
convertible or exchangeable securities been made upon the basis of
such increased or decreased consideration payable or increased or
decreased number of shares deliverable.
(E) In the case of issuance of shares of Common Stock (i) on the
exercise of options or rights the consideration for such shares shall be
considered to be the consideration received by the Corporation for such
options or rights plus the additional consideration received by the
Corporation on exercise and (ii) on conversions of securities of the
Corporation convertible into shares of Common Stock of the Corporation
the consideration for such shares shall be considered to be the
consideration received by the Corporation for such convertible securities
before deducting usual and customary commissions and expenses in
connection with the sale thereof and the additional consideration, if
any, received by the Corporation on such conversion; in each case
computing such consideration in the manner provided in paragraphs (A) and
(B) above.
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(2) If the Corporation shall, after January 7, 1963 (i) subdivide
its outstanding shares of Common Stock; (ii) combine its outstanding shares of
Common Stock into a smaller number of shares, or (iii) issue by reclassification
of its shares of Common Stock any shares of the Corporation, the conversion
price shall be immediately proportionately adjusted and the conversion price
recomputed so that the holder of any Convertible Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock of the Corporation which he would have owned or have been entitled
to receive after the happening of the events described above, had such
Convertible Preferred Stock been converted immediately prior to such event. Such
adjustments shall become effective immediately after the close of business on
the effective or record date of or for any such event.
(3) For the purpose of subsection (b)(1), the consideration
received or to be received on account of the issuance
(A) of shares of Common Stock on conversion of the Convertible
Preferred Stock;
(B) of a maximum of 400,000 shares of Common Stock on the exercise
of stock options heretofore or hereafter issued which constitute
Restricted Stock Options for the purpose of Section 421 of the Internal
Revenue Code of 1954 or any substantially similar provisions of the
Internal Revenue Code in effect at the time such options are granted, or
sold to employees under the Corporation's various employee stock purchase
plans at a sale price not less than 90% of the average market value
during the Calendar month preceding the sale;
(C) of a maximum of 161,397 shares of Common Stock in connection
with the acquisition of capital stock or assets of Flagg-Utica
Corporation and The Gidding Company;
(D) of shares of Common Stock on conversion of the Corporation's 4
3/4% Convertible Subordinated Notes due July 31, 1982;
(E) of shares of Common Stock issued by way of dividend or other
distribution on shares of Common Stock which may be issued pursuant to
the foregoing clauses (A), (B), (C) and (D) or this clause (E) or on
shares of Common Stock resulting from any subdivision or combination of
shares of Common Stock so issued;
and the shares of Common Stock so issued shall be disregarded and not be
included in the computation thereunder.
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<PAGE> 19
(c) In the event of any capital reorganization or classification of
the Common Stock of the Corporation (except those for which provision is made in
subsection (b)(2)), or the consolidation or merger of the Corporation into or
with another corporation, or the sale, conveyance, lease or other transfer by
the Corporation of all or substantially all of its property to any other
corporation, pursuant to which the then outstanding shares of Common Stock
become exchangeable for other shares of stock or securities or cash or other
property, the holders of Convertible Preferred Stock shall have the right
thereafter to convert the shares of Convertible Preferred Stock into the kind
and amount of shares or stock, other securities, cash or property receivable
upon such reorganization, reclassification, consolidation, merger or transfer by
a holder of the number of shares of Common Stock of the Corporation into which
such shares might have been converted immediately prior to such reorganization,
reclassification, consolidation, merger or transfer, at the conversion price in
effect immediately preceding such reorganization, reclassification,
consolidation, merger or transfer. Such right shall be subject to further future
adjustments of the conversion price which are as nearly equivalent as may be
practicable to the adjustment provided in subsection (b). The above provisions
of this subsection (c) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers or transfers.
(d) Whenever the conversion price of shares of Common Stock
issuable on conversion of the Convertible Preferred Stock shall be adjusted
pursuant to any of the provisions hereof, the Corporation shall forthwith cause
to be published at least once in a daily newspaper of general circulation in the
Borough of Manhattan, City and State of New York and cause to be mailed to the
holders of the outstanding shares of Convertible Preferred Stock, at their
respective addresses appearing on the stock registry books of the Corporation, a
notice setting forth the adjustment in such conversion price and shall also file
with the transfer agency for the Convertible Preferred Stock in said City and in
the City of Nashville, Tennessee, a copy of such notice and a statement showing
in reasonable detail the facts upon which such adjustment is based. All
calculations under this Section (6) shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(e) Such option to convert may be exercised by surrendering to the
Corporation for such purpose at its transfer agency for the Convertible
Preferred Stock in the City of Nashville, Tennessee or in the Borough of
Manhattan, City and State of New York (which transfer agency shall be maintained
by the Corporation so long as any shares of Convertible Preferred Stock are
outstanding), the certificates for the shares of Convertible Preferred Stock so
to be converted properly endorsed in blank or accompanied by proper instruments
of assignment. Upon the conversion of any shares of Convertible Preferred Stock
into Common Stock, no adjustment shall be made for dividends on the Convertible
Preferred Stock payable to holders of record after the date of surrender of such
shares for conversion or for dividends payable to holders of Common Stock of
record prior to the date of surrender for conversion. Shares shall be deemed to
have been converted immediately prior to the close of business on the day of
surrender of said shares for conversion and the person entitled to
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<PAGE> 20
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder of such Common Stock at such time. In case shares
of Convertible Preferred Stock are called for redemption, the right to convert
such shares shall cease and terminate at the close of business on that date
fixed for redemption, unless default shall be made in payment of the redemption
price.
(f) No fractional shares or scrip representing fractional shares
shall be issued upon conversion of any share of Convertible Preferred Stock. If
the conversion of any share of Convertible Preferred Stock results in a
fractional share of Common Stock, an amount equal to such fractional share
multiplied by the value of one share of the Common Stock on the conversion date
shall be paid to the holder in cash. Such value shall be the last sales price,
regular way, of the Common Stock of the Corporation on the New York Stock
Exchange (or such other exchange on which such stock shall be listed) on the
conversion date or, in case no sale takes place on such date, the average of the
closing bid and asked prices, regular way, on such exchange on such date or, if
such stock shall not then be listed on any exchange, the market price per share
(as determined by the Board of Directors) at the close of business on the
conversion date. The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock for
the purpose of effecting the conversion of the shares of Convertible Preferred
Stock, the full number of shares of Common Stock then deliverable upon
conversion of all shares of Convertible Preferred Stock then outstanding. The
Corporation covenants that all shares of Common Stock issued upon conversion of
Convertible Preferred Stock will, upon issue, be legally issued and will be
fully paid and nonassessable and that the Corporation will take no action which
will reduce the conversion price below the then par value of the Common Stock.
(g) In case (i) the Corporation shall declare a dividend or other
distribution on its Common Stock payable otherwise than in cash out of its
earned surplus, or (ii) the Corporation shall authorize the granting to the
holders of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights, or (iii) of any
reclassification of the capital stock of the Corporation (other than a
subdivision or combination of its outstanding shares of Common Stock) or of any
consolidation or merger to which the Corporation is a party and for which
approval of any stockholders of the Corporation is required or of the sale or
transfer of the property and assets of the Corporation as an entirety or
substantially as an entirety, or (iv) of any voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, then the Corporation
shall cause to be mailed by a transfer agency for the Convertible Preferred
Stock to the holders of record of such stock, at least twenty days (or ten days
in any case specified in clause (i) or clause (ii) above) prior to the
applicable record date hereinafter specified, a notice stating the date on which
a record is to be taken for the purpose of such dividend, distribution or rights
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are to
be determined, or the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
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become effective and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of the Common Stock
for securities or other property deliverable thereupon.
(h) For the purposes of this Section (6), the sale by the
Corporation of shares of Common Stock held in its treasury which were acquired
after the date of initial issue of shares of Convertible Preferred Stock shall
not be considered an issuance or sale of shares of Common Stock and the
consideration received on any such sale shall be disregarded.
B-I -- SUBORDINATED CUMULATIVE CONVERTIBLE
PREFERENCE STOCK -- GENERAL PROVISIONS
(1) DIVIDENDS. The holders of shares of Subordinated Preference Stock
of each Series shall be entitled, before any dividends are declared or paid on
the Serial Preferred Stock of any Series, or on the Cumulative Preferred Stock
or on the Common Stock, but subject to the prior rights of the Convertible
Preferred Stock to dividends and to the sinking fund provisions with respect
thereto, to receive dividends, when and as declared by the Board of Directors,
at the respective rates hereinafter set forth in Parts B-II, B-III and B-IV of
this Article Sixth. Such dividends shall be payable quarterly on the last days
of January, April, July and October. Dividends with respect to each Series of
Subordinated Preference Stock shall be cumulative from such date or dates as
shall have been fixed with respect to such Series as hereinafter provided.
The Series A Subordinated Preference Stock shall be prior in right
to dividends to the Series B Subordinated Preference Stock and the Series C
Subordinated Preference Stock; the Series B Subordinated Preference Stock shall
be prior in right to dividends to the Series C Subordinated Preference Stock.
Thus, no dividends shall be declared on any outstanding shares of Series C
Subordinated Preference Stock in respect of any dividend period unless there
shall likewise be or have been declared on all shares of Series A Subordinated
Preference Stock and Series B Subordinated Preference Stock at the time
outstanding full cumulative dividends at the respective annual dividend rates
fixed therefor as hereinafter provided; and no dividends shall be declared on
any outstanding shares of Series B Subordinated Preference Stock in respect of
any dividend period unless there shall likewise be or have been declared on all
shares of Series A Subordinated Preference Stock at the time outstanding full
cumulative dividends at the annual dividend rate fixed therefor as hereinafter
provided, in each case for all previous dividend periods and for any then
current dividend period.
Dividends with respect to each Series of Subordinated Preference
Stock shall be cumulative so that if, for any previous or then current dividend
period, dividends shall not have been paid, or declared and set apart for
payment, upon all outstanding shares of such Series of Subordinated Preference
Stock at the rate per annum fixed and determined for the
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<PAGE> 22
shares of such Series as hereinafter set forth, the deficiency shall be fully
paid, or declared and set apart for payment, before any dividends are paid or
declared upon any subordinate Series of Subordinated Preference Stock or upon
any Series of Serial Preferred Stock, or upon the Cumulative Preferred Stock or
upon the Common Stock. Accumulated dividends shall not bear interest. Whenever
full cumulative dividends on all Series of Subordinated Preference Stock for all
previous dividend periods and for any then current period or periods shall have
been paid, or declared and set apart for payment, the Board of Directors may
declare dividends upon the Serial Preferred Stock of any Series, the Cumulative
Preferred Stock or the Common Stock, payable then or thereafter, and no holder
of any shares of any Series of Subordinated Preference Stock, as such, shall be
entitled to share therein.
(2) LIQUIDATION. Upon any dissolution, liquidation or winding up of the
Corporation, the holders of each Series of Subordinated Preference Stock shall
be entitled to be paid from the assets (whether capital or surplus) of the
Corporation, subject to and after prior payment of the amounts payable with
respect to the Convertible Preferred Stock, the amounts hereinafter set forth in
Parts B-II, B-III and B-IV of this Article Sixth, plus in every case an amount
equal to all accumulated and unpaid dividends accrued to the date fixed for
final distribution to such holders, whether or not earned or declared, before
any payment or distribution shall be made to the holders of the Serial Preferred
Stock of any Series, Cumulative Preferred Stock, Employees' Preferred Stock or
the Common Stock.
If, in the event of any such dissolution, liquidation or winding
up, the assets of the Corporation are not sufficient to pay in full to the
holders of shares of all Series of Subordinated Preference Stock the respective
amounts which shall have been fixed and determined with respect thereto as
hereinafter provided, no payment shall be made to the holders of the Series C
Subordinated Preference Stock unless and until all amounts payable to the
holders of the Series A Subordinated Preference Stock and the Series B
Subordinated Preference Stock have been discharged in full, and no payments
shall be made to the holders of the Series B Subordinated Preference Stock
unless and until all amounts payable to the holders of the Series A Subordinated
Preference Stock have been discharged in full. After payment in full of such
amounts to the holders of each Series of Subordinated Preference Stock, such
shareholders, as such, shall have no right or claim to any of the remaining
assets of the Corporation, and the same shall be distributed among the holders
of the Serial Preferred Stock of any Series, the Cumulative Preferred Stock, the
Employees' Preferred Stock and the Common Stock in accordance with their
respective rights hereunder.
(3) REDEMPTION. At the option of the Board of Directors, the
Corporation, subject to the restrictions set forth in this Section (3) and
subject to any restrictions hereinafter set forth in Parts B-II, B-III and B-IV
of this Article Sixth, may at any time redeem the Subordinated Preference Stock,
or any Series or part thereof, at the applicable redemption price hereinafter
set forth in Parts B-II, B-III and B-IV of this Article Sixth, plus in every
case
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an amount equal to all accumulated and unpaid dividends accrued to the
redemption date on the shares redeemed, whether or not earned or declared;
provided, however, that no less than 30 nor more than 60 days prior to the date
fixed for redemption, a notice specifying the time and place of redemption and
the redemption price shall be given to the holders of record of the shares to be
redeemed by publication of such notice in one newspaper published and of general
circulation in the City of Nashville, Tennessee, and in one newspaper published
and of general circulation in the Borough of Manhattan, the City of New York,
and by mailing such notice to such holders at their addresses, if any, as the
same appear upon the stock registry books.
If less than all outstanding shares of Subordinated Preference
Stock of any Series are to be redeemed, and except as otherwise hereinafter
required by the provisions of this Section (3), the shares to be redeemed may be
selected by the Board of Directors by lot or in any other manner which the Board
of Directors in its unrestricted discretion may determine to be fair, and in
such case the notice of redemption mailed as aforesaid shall inform each
registered holder of shares called for redemption of the total number or
proportion of shares registered in his name that have been called for
redemption, but the notice of redemption to be published as aforesaid need not
contain such information.
From and after the redemption date, unless default is made in the
payment of the redemption price when due, the shares so called for redemption
shall cease to be outstanding and the holders thereof shall cease to be
stockholders with respect to such shares and shall have no interest in or claim
against the Corporation with respect to such shares other than to receive the
redemption price on and after the date fixed for redemption without interest
thereon, upon surrender of their certificates with endorsement thereof if
required. Shares of Subordinated Preference Stock redeemed pursuant to this
Section (3) shall be cancelled and shall not thereafter be reissued, sold or
otherwise disposed of.
At any time after notice of redemption shall have been given as
hereinabove provided, the Corporation may deposit or cause to be deposited in
trust, to be applied to the redemption of the shares of Subordinated Preference
Stock so called for redemption, with some bank or trust company organized and
doing business under the laws of the United States of America or the State of
New York and having capital surplus and undivided profits aggregating at least
Ten Million Dollars ($10,000,000), and having its principal office in the
Borough of Manhattan, City and State of New York, the aggregate amount to be
paid on redemption to the holders of the shares so to be redeemed upon surrender
of the certificates for such shares. In case any holder of shares of
Subordinated Preference Stock which shall have been called for redemption shall
not, within six (6) years after such deposit, have claimed the amount deposited
with respect to the redemption thereof, such bank or trust company, upon demand,
shall pay over to the Corporation such unclaimed amount and shall thereupon be
relieved of all responsibility in respect thereof to such holder, and such
holder shall look only to the Corporation for the payment thereof. Any interest
accrued on funds so deposited shall be paid to the Corporation from time to
time.
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If at any time the Corporation shall have failed to pay dividends
in full on all shares of Subordinated Preference Stock of any Series outstanding
and on all shares of Convertible Preference Stock and each other class of stock
of the Corporation, including shares of Subordinated Preference Stock of other
Series, ranking as to dividends or assets prior to or equally with the
Subordinated Preference Stock of such Series, or shall be in default in respect
of its obligations under any sinking fund or purchase or redemption account for
the purchase or redemption of such Series of Subordinated Preference Stock and
any such senior or pari passu stock, then and until all arrearages of such
dividends for all preceding dividend periods and for any current dividend period
or periods shall have been paid, or declared and set apart for payment, and all
defaults under all such sinking funds or purchase or redemption accounts shall
have been remedied, neither the Corporation nor any subsidiary shall purchase or
redeem, at the option of the Board of Directors or pursuant to the provisions of
any such sinking fund or purchase or redemption account (except, if all such
dividend arrearages shall then have been paid or provided for, to the extent
required to cure such defaults in such sinking funds or purchase or redemption
accounts, in amounts proportionate to the amounts due respectively thereunder),
or otherwise acquire for value any shares of Subordinated Preference Stock of
such Series or any class of stock of the Corporation, including shares of
Subordinated Preference Stock of other Series, ranking as to dividends or assets
equally with or junior to the Subordinated Preference Stock of such Series, and
the Corporation shall not declare or pay any dividend or make any other
distribution on any shares of such junior stock.
(4) CONVERSION. (a) At the option of the holder thereof, and at such
time or times hereinafter set forth in Parts B-II, B-III and B-IV of this
Article Sixth, each share of Subordinated Preference Stock may be converted into
a number of fully paid and nonassessable shares of the Common Stock of the
Corporation determined by dividing $100 by the conversion price per share of
Common Stock in effect for the Subordinated Preference Stock of such Series at
the time of such conversion.
(b) The initial conversion price for each series of Subordinated
Preference Stock shall be as hereinafter set forth in Parts B-II, B-III and B-IV
of this Article Sixth. Such conversion price shall be subject from time to time
to such adjustments as may be occasioned by future issuances of securities of
the Corporation to the extent and in the manner hereinafter set forth in Parts
B-II, B-III and B-IV of this Article Sixth.
(c) In the event of any capital reorganization or reclassification
of the Common Stock of the Corporation (except those for which provision is made
pursuant to subsection (b)), or the consolidation or merger of the Corporation
into or with another corporation, or the sale, conveyance, lease or other
transfer by the Corporation of all or substantially all of its property to any
other corporation, pursuant to which the then outstanding shares of Common Stock
become exchangeable for other shares of stock or securities or cash
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or other property, the holders of the Subordinated Preference Stock of each
Series shall have the right thereafter to convert such shares into the kind and
amount of shares of stock, other securities, cash or property receivable upon
such reorganization, reclassification, consolidation, merger or transfer by a
holder of the number of shares of Common Stock of the Corporation into which
such shares might have been converted immediately prior to such reorganization,
reclassification, consolidation, merger or transfer, at the conversion price for
such Series in effect immediately preceding such reorganization,
reclassification, consolidation, merger or transfer. Such right shall be subject
to further future adjustments of the conversion price for such Series which are
as nearly equivalent as may be practicable to the adjustments provided pursuant
to subsection (b). The above provisions of this subsection (c) shall similarly
apply to successive reorganizations, reclassifications, consolidations, mergers
or transfers.
(d) Whenever the conversion price of shares of Common Stock
issuable on conversion of the Subordinated Preference Stock of any Series shall
be adjusted pursuant to any of the provisions hereof, the Corporation shall
forthwith cause to be published at least once in a daily newspaper of general
circulation in the Borough of Manhattan, City and State of New York, and cause
to be mailed to the holders of the outstanding shares of Subordinated Preference
Stock of such Series, at their respective addresses appearing on the stock
registry books of the Corporation, a notice setting forth the adjustment in such
conversion price and shall also file with the transfer agency, if any, for the
Subordinated Preference Stock of such Series in said City and in the City of
Nashville, Tennessee, a copy of such notice and a statement showing in
reasonable detail the facts upon which such adjustment is based. All
calculations under this Section (4) shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(e) Such option to convert may be exercised by surrendering to the
Corporation for such purpose at its principal office or at its transfer agency,
if any, for the Subordinated Preference Stock of such Series in the City of
Nashville, Tennessee or in the Borough of Manhattan, City and State of New York,
the certificates for the shares of Subordinated Preference Stock so to be
converted properly endorsed in blank or accompanied by proper instruments of
assignment. Upon the conversion of any shares of Subordinated Preference Stock
into Common Stock, no adjustment shall be made for dividends on the Subordinated
Preference Stock payable to holders of record after the date of surrender of
such shares for conversion or for dividends payable to holders of Common Stock
of record prior to the date of surrender for conversion. Shares shall be deemed
to have been converted immediately prior to the closing of business on the day
of surrender of said shares for conversion and the person entitled to receive
the Common Stock issuable upon such conversion shall be treated for all purposes
as the record holder of such Common Stock at such time. In case shares of
Subordinated Preference Stock are called for redemption, the right to convert
such shares shall cease and terminate at the close of business on the date fixed
for redemption, unless default shall be made in payment of the redemption price.
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(f) No fractional shares or scrip representing fractional shares
shall be issued upon conversion of any share of Subordinated Preference Stock.
If the conversion of any share of Subordinated Preference Stock results in a
fractional share of Common Stock, an amount in cash equal to such fraction
multiplied by the value of one share of the Common Stock on the conversion date
shall be paid to the holder. Such value shall be the last sales price, regular
way, of the Common Stock of the Corporation on the New York Stock Exchange (or
such other exchange on which such stock shall be listed) on the conversion date
or, in case no sale takes place on such date, the average of the closing bid and
asked prices, regular way, on such exchange on such date or, if such stock shall
not then be listed on any exchange, the market price per share (as determined by
the Board of Directors) at the close of business on the conversion date. The
Corporation shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of the shares of Subordinated Preference Stock, the
full number of shares of Common Stock then deliverable upon conversion of all
shares of Subordinated Preference Stock of each Series then outstanding. The
Corporation covenants that all shares of Common Stock issued upon conversion of
the Subordinated Preference Stock will, upon issue, be legally issued and will
be fully paid and nonassessable by the Corporation and that the Corporation will
take no action which will reduce the conversion price of any Series below the
then par value of the Common Stock.
(g) In case (i) the Corporation shall declare a dividend or any
other distribution on its Common Stock payable otherwise than in cash out of its
earned surplus, or (ii) the Corporation shall authorize the granting to the
holders of its Common Stock of rights to subscribe for or purchase any shares of
capital stock of any class or of any other rights, or (iii) of any
reclassification of the capital stock of the Corporation (other than a
subdivision or combination of its outstanding shares of Common Stock) or of any
consolidation or merger to which the Corporation is a party and for which
approval of any stockholders of the Corporation is required or of the sale or
transfer of the property and assets of the Corporation as an entirety or
substantially as an entirety, or (iv) of any voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, then the Corporation
shall mail or cause to be mailed to the holders of record of the Subordinated
Preference Stock of each Series outstanding at least twenty days (or ten days in
any case specified in clause (i) or clause (ii) above) prior to the applicable
record date hereinafter specified, a notice stating the date on which a record
is to be taken for the purpose of such dividend, distribution or rights or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution or rights are to be
determined, or the date on which such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up is expected to become
effective and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of the Common Stock for
securities or other property deliverable thereupon.
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(h) For the purposes of this Section (4), the sale by the
Corporation of shares of Common Stock held in its treasury which were acquired
after the date of initial issue of shares of Subordinated Preference Stock of
any Series shall not be considered an issuance or sale of shares of Common Stock
and the consideration received on any such sale shall be disregarded for
purposes of determining the conversion price for such Series.
(5) REDUCTION OF CAPITAL. Without limiting the generality of Article
Eighth of the Certificate of Incorporation, the Board of Directors is expressly
authorized from time to time to effect the reduction of the capital of the
Corporation by redeeming or purchasing and retiring all or any outstanding
shares of any Series of Subordinated Preference Stock pursuant to any provisions
of this Article Sixth or any amendment thereto.
PART B-II -- SERIES A SUBORDINATED PREFERENCE STOCK
The Series A Subordinated Preference Stock, consisting of 68,943 shares
without nominal or par value, shall have, in addition to the rights and
preferences granted by law and by Part B-I of this Article Sixth, the following
distinguishing characteristics, rights, privileges and immunities:
(1) DIVIDENDS. Dividends shall be payable as hereafter provided on each
outstanding share of Series A Subordinated Preference Stock at the rate of $4.25
per annum and shall be cumulative from February 1, 1967 and February 1, 1969 on
shares which become convertible on April 15 of such years, respectively, and
from May 1, 1968 and May 1, 1970 on shares which become convertible on April 15
of such years, respectively. Dividends shall not be payable with respect to any
dividend period prior to the date that such dividends become cumulative.
(2) REDEMPTION. The redemption price of shares of Series A Subordinated
Preference Stock redeemed at the option of the Board of Directors shall be $100
per share. Only those shares which have been convertible for at least two years
may be redeemed.
(3) LIQUIDATION. The amount payable upon voluntary or involuntary
dissolution, liquidation or winding up of the Corporation shall be $100 per
share.
(4) CONVERSION. Each certificate representing shares of Series A
Subordinated Preference Stock shall indicate the period during which such shares
are convertible into Common Stock. Such periods and the number of such shares of
Series A Subordinated Preference Stock which are then convertible are as
follows:
(a) April 15, 1969 to April 14, 1972: 34,471 shares.
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(b) April 15, 1970 to April 14, 1973: 34,472 shares.
The initial conversion price per share of Common Stock for the
conversion of shares into Series A Subordinated Preference Stock shall be
$33.33. No adjustment will be made to the conversion price on account of
subsequent issuances of securities except that, if the Corporation shall, after
August 31, 1966, (i) issue shares as a stock dividend, or otherwise subdivide
its outstanding shares of Common Stock, (ii) combine its outstanding shares of
Common Stock into a smaller number of shares, or (iii) issue by reclassification
of its shares of Common Stock any shares of the Corporation, the conversion
price shall be immediately proportionately adjusted so that the holder of any
Series A Subordinated Preference Stock thereafter surrendered for conversion in
accordance with this Section (4) shall be entitled to receive the number of
shares of the Corporation which he would have owned or have been entitled to
receive after the happening of the events described above, had such Series A
Subordinated Preference Stock been converted immediately prior to such event.
Such adjustments shall become effective immediately after the close of business
on the effective or record date of or for any such event.
(5) VOTING POWERS. Each share shall be entitled to three votes on all
matters.
PART B-III -- SERIES B SUBORDINATED PREFERENCE STOCK
The Series B Subordinated Preference Stock, consisting of 161,376
shares without nominal or par value, shall have, in addition to the rights and
preferences granted by law and by Part B-I of this Article Sixth, the following
distinguishing characteristics, rights, privileges and immunities:
(1) DIVIDENDS. Dividends shall be payable on each outstanding share of
Series B Subordinated Preference Stock at the rate of $6.00 per annum and shall
be cumulative from the date of issuance thereof.
(2) REDEMPTION. The redemption price of each share of Series B
Subordinated Preference Stock redeemed at the option of the Board of Directors
or pursuant to the Purchase Fund shall be $105 if redeemed on or after June 1,
1972 and before June 1, 1973; $104 before June 1, 1974; $103 before June 1,
1975; $102 before June 1, 1976; $101 before June 1, 1977; and $100 thereafter.
No shares may be redeemed prior to June 1, 1972.
(3) PURCHASE FUND. (a) On December 31, 1976, and on each December 31
thereafter on which any shares of Series B Subordinated Preference Stock are
outstanding, the Corporation will offer to redeem at the then applicable
redemption price stated in Section (2) of this Part B-III from each holder of
Series B Subordinated Preference Stock a number of shares of Series B
Subordinated Preference Stock equal to such stockholder's pro rata portion of
five
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percent (5%) of the number of shares of Series B Subordinated Preference Stock
issued by the Corporation, and upon tender by a stockholder of his shares and
payment by the Corporation of the redemption price, such shares shall cease to
be outstanding and shall be cancelled, and may not thereafter be reissued or
sold or otherwise disposed of by the Corporation; provided, however, that the
Corporation may at its option and on a cumulative basis, credit against the
number of shares it would otherwise be required to offer to redeem, shares of
Series B Subordinated Preference Stock which shall have been (i) converted into
shares of Common Stock or (ii) purchased, redeemed or otherwise acquired by the
Corporation other than pursuant to the Purchase Fund and which have not
previously been credited against such required redemptions. Such offers will
remain open for a period of sixty days.
(b) The Corporation shall in no event be obligated to apply to the
redemption of Series B Subordinated Preference Stock any funds not legally
available therefor under the laws of the State of Tennessee but any such
redemptions so deferred shall be made promptly after, and to the full extent
that, any funds of the Corporation become legally available for such purpose
thereafter. If at any time the Corporation shall, for any reason, have failed to
effect the redemption pursuant to subsection (a) of this Section (3) of the
total number of shares of Series B Subordinated Preference Stock theretofore
required to be redeemed by the provisions of such subsection, the Corporation
shall be deemed to be in default in its Purchase Fund obligations for the
purposes of Section (3) of Part B-I.
(4) LIQUIDATION. The amount payable upon voluntary or involuntary
dissolution, liquidation or winding up of the Corporation shall be $100 per
share.
(5) CONVERSION. The initial conversion price per share of Common Stock
for the conversion of shares of Series B Subordinated Preference Stock shall be
$41 2/3. No adjustment will be made to the conversion price on account of
subsequent issuances of securities except that, if the Corporation shall after
January 31, 1967, (i) issue shares as a stock dividend, or otherwise subdivide
its outstanding shares of Common Stock, (ii) combine its outstanding shares of
Common Stock into a small number of shares, or (iii) issue by reclassification
of its shares of Common Stock any shares of the Corporation, the conversion
price shall be immediately proportionately adjusted so that the holder of any
Series B Subordinated Preference Stock thereafter surrendered for conversion in
accordance with this Section (5) shall be entitled to receive the number of
shares of the Corporation which he would have owned or have been entitled to
receive after the happening of the events described above, had such Series B
Subordinated Preference Stock been converted immediately prior to such event.
Such adjustments shall become effective immediately after the close of business
on the effective or record date of or for any such event.
(6) VOTING POWERS. Each share shall be entitled to two votes on all
matters.
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PART B-IV -- SERIES C SUBORDINATED PREFERENCE STOCK
The Series C Subordinated Preference Stock, consisting of not more than
269,291 shares without nominal or par value, shall have, in addition to the
rights and preferences granted by law and by Part B-I of this Article Sixth, the
following distinguishing characteristics, rights, privileges and immunities:
(1) DIVIDENDS. Dividends shall be payable on each outstanding share of
Series C Subordinated Preference Stock at the rate of $6.00 per annum and shall
be cumulative from the date of issuance thereof.
(2) REDEMPTION. The redemption price of each share of Series C
Subordinated Preference Stock redeemed at the option of the Board of Directors
or pursuant to the Purchase Fund shall be $105 if redeemed on or after December
1, 1972 and before December 1, 1973; $104 before December 1, 1974; $103 before
December 1, 1975; $102 before December 1, 1976; $101 before December 1, 1977;
and $100 thereafter, plus in every case accumulated dividend arrears. No shares
may be redeemed prior to December 1, 1972.
(3) PURCHASE FUND. (a) On June 30, 1977, and on each June 30 thereafter
on which any shares of Series C Subordinated Preference Stock are outstanding,
the Corporation will offer to redeem at the then applicable redemption price
stated in Section (2) of this Part B-IV from each holder of Series C
Subordinated Preference Stock a number of shares of Series C Subordinated
Preference Stock equal to such stockholder's pro rata portion of five percent
(5%) of the number of shares of Series C Subordinated Preference Stock issued by
the Corporation, and upon tender by a stockholder of his shares and payment by
the Corporation of the redemption price, such shares shall cease to be
outstanding and shall be cancelled, and may not thereafter be reissued or sold
or otherwise disposed of by the Corporation; provided, however, that the
Corporation may at its option and on a cumulative basis, credit against the
number of shares it would otherwise be required to offer to redeem, shares of
Series C Subordinated Preference Stock which shall have been (i) converted into
shares of Common Stock or (ii) purchased, redeemed or otherwise acquired by the
Corporation other than pursuant to the Purchase Fund and which have not
previously been credited against such required redemptions. Such offers will
remain open for a period of sixty days.
(b) The Corporation shall in no event be obligated to apply to the
redemption of Series C Subordinated Preference Stock any funds not legally
available therefor under the laws of the State of Tennessee but any such
redemptions so deferred shall be made promptly after, and to the full extent
that, any funds of the Corporation become legally available for such purpose
thereafter. If at any time the Corporation shall, for any reason, have failed to
effect the redemption pursuant to subsection (a) of this Section (3) of the
total number of shares of Series C Subordinated Preference Stock theretofore
required to be
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redeemed by the provisions of such subsection, the Corporation shall be deemed
to be in default in its Purchase Fund obligations for the purposes of Section
(3) of Part B-I.
(4) LIQUIDATION. The amount payable upon voluntary or involuntary
dissolution, liquidation or winding up of the Corporation shall be $100 per
share, plus in every case accumulated dividend arrears.
(5) CONVERSION. The initial conversion price per share of Common Stock
for the conversion of shares of Series C Subordinated Preference Stock shall be
$45 5/11. No adjustment will be made to the conversion price on account of
subsequent issuances of securities except that, if the Corporation shall after
August 31, 1967, (i) issue shares as a stock dividend, or otherwise subdivide
its outstanding shares of Common Stock, (ii) combine its outstanding shares of
Common Stock into a smaller number of shares, or (iii) issue by reclassification
of, or in exchange for, its shares of Common Stock any securities of the
Corporation, or in case of merger or consolidation, or sale of all the assets of
the Corporation or distribution to holders of Common Stock by way of dividend or
otherwise of property other than cash, then, in any of such events, the holder
of any Series C Subordinated Preference Stock thereafter surrendered for
conversion shall be entitled to receive the kind and amount of shares of stock
and other securities and property receivable in lieu of Common Stock upon the
happening of any such event. Such adjustments shall become effective immediately
after the close of business on the effective or record date of or for any such
event.
(6) VOTING POWERS. Each share shall be entitled to two votes on all
matters.
PART C-I -- SUBORDINATED SERIAL PREFERRED STOCK--
GENERAL PROVISIONS
(1) DIVIDENDS. If, pursuant to the authority vested in them by Section
(5) of this Part C-I, the Board of Directors determines that the holders of
shares of any Series of Serial Preferred Stock shall be entitled to receive
dividends, then such holders shall be entitled, before any dividends are
declared or paid on any subordinate Series, if any, of Serial Preferred Stock or
on the Cumulative Preferred Stock or on the Employees' Preferred Stock or on the
Common Stock, but subject to the prior rights of the Convertible Preferred
Stock, the Subordinated Preference Stock of each Series and any senior Series,
if any, of Serial Preferred Stock to dividends and to the sinking fund or
purchase fund provisions with respect to such classes of Stock, to receive
dividends, when and as declared by the Board of Directors, at the rate which
shall have been fixed and determined by the Board of Directors with respect to
such Series.
(2) LIQUIDATION. Upon any dissolution, liquidation or winding up of the
Corporation, the holders of each Series of Serial Preferred Stock shall be
entitled to be paid
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from the assets (whether capital or surplus) of the Corporation, subject to and
after prior payment of the amounts payable with respect to the Convertible
Preferred Stock, the Subordinated Preference Stock of each Series and any senior
Series, if any, of Serial Preferred Stock, the amounts which shall have been
fixed and determined with respect to such Series by the Board of Directors
pursuant to Section (5) of this Part C-I, before any payment or distribution
shall be made to the holders of any subordinate Series, if any, of Serial
Preferred Stock, the Cumulative Preferred Stock, Employees' Preferred Stock or
the Common Stock.
(3) REDEMPTION. (a) If, pursuant to the authority vested in them by
Section (5) of this Part C-I, the Board of Directors determines that shares of
any Series of Serial Preferred Stock shall be redeemable, then in addition to
the terms and conditions pertaining to redemption of the shares of such Series
as shall be fixed and determined by the Board of Directors and to the extent not
in conflict with such terms and conditions, the provisions of this Section (3)
shall be applicable to the redemption of shares of such Series.
(b) Not less than 30 nor more than 60 days prior to the date fixed
for redemption, a notice specifying the time and place of redemption and the
redemption price shall be given to the holders of record of the shares to be
redeemed by mailing such notice to such holders as their names and addresses
appear in the stock registry books.
(c) If less than all outstanding shares of Serial Preferred Stock
of such Series are to be redeemed, and except as otherwise hereinafter required
by the provisions of this Section (3), the shares to be redeemed shall be
selected by the Board of Directors by such method as the Board of Directors
shall deem fair and appropriate, and in such case the notice of redemption
mailed as aforesaid shall inform each registered holder of shares called for
redemption of the total number or proportion of shares registered in his name
that have been called for redemption, but the notice of redemption to be
published as aforesaid need not contain such information.
(d) From and after the redemption date, unless default is made in
the payment of the redemption price when due, the shares so called for
redemption shall cease to be outstanding, and the holders thereof shall cease to
be stockholders with respect to such shares and shall have no interest in or
claim against the Corporation with respect to such shares other than to receive
the redemption price on and after the date fixed for redemption, without
interest thereon, upon surrender of their certificates with endorsement thereof
if required.
(e) At any time after notice of redemption shall have been given as
hereinabove provided, the Corporation may deposit or cause to be deposited in
trust, to be applied to the redemption of the shares of Serial Preferred Stock
of such Series so called for redemption, with some bank or trust company
organized and doing business under the laws of the United States of America or
the State of New York and having capital surplus and
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undivided profits aggregating at least Ten Million Dollars ($10,000,000), and
having its principal office in the Borough of Manhattan, City and State of New
York, the aggregate amount to be paid on redemption to the holders of the shares
so to be redeemed upon surrender of the certificates for such shares. In case
any holder of shares of Serial Preferred Stock of such Series which shall have
been called for redemption shall not, within six (6) years after such deposit,
have claimed the amount deposited with respect to the redemption thereof, such
bank or trust company, upon demand, shall pay over to the Corporation such
unclaimed amount and shall thereupon be relieved of all responsibility in
respect thereof to such holder, and such holder shall look only to the
Corporation for the payment thereof. Any interest accrued on funds so deposited
shall be paid to the Corporation from time to time as the Corporation shall
direct.
(f) If at any time the Corporation shall have failed to pay
dividends in full on all shares of Serial Preferred Stock of such Series
outstanding, on all shares of Convertible Preferred Stock, Subordinated
Preference Stock of each Series and each other class of stock of the
Corporation, including shares of Serial Preferred Stock of other Series, ranking
as to dividends or assets prior to or equally with the Serial Preferred Stock of
such Series, or shall be in default in respect of its obligations under any
sinking fund or purchase or redemption account for the purchase or redemption of
shares of Serial Preferred Stock of such Series and any such senior or pari
passu stock, then and until all arrearages of such dividends for all preceding
dividend periods and for any current dividend period or periods shall have been
paid, or declared and set apart for payment, and all defaults under all such
sinking funds or purchase or redemption accounts shall have been remedied,
neither the Corporation nor any subsidiary shall purchase or redeem, at the
option of the Board of Directors or pursuant to the provisions of any such
sinking fund or purchase or redemption account (except, if all such dividend
arrearages shall then have been paid or provided for, to the extent required to
cure such defaults in such sinking funds or purchase or redemption accounts, in
amounts proportionate to the amounts due respectively thereunder), or otherwise
acquire for value any shares of Serial Preferred Stock of such Series or any
class of stock of the Corporation, including shares of Serial Preferred Stock of
other Series, ranking as to dividends or assets equally with or junior to the
Serial Preferred Stock of such Series, and the Corporation shall not declare or
pay any dividend or make any other distribution on any shares of such junior
stock.
(4) CONVERSION. (a) If, pursuant to the authority vested in them by
Section (5) of this Part C-I, the Board of Directors determines that shares of a
Series of Serial Preferred Stock shall be convertible, then in addition to the
terms and conditions pertaining to conversion of shares of such Series fixed and
determined by the Board of Directors, and to the extent not in conflict with
such terms and conditions, the provisions of this Section (4) shall be
applicable to the conversion of shares of such Series.
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(b) If the Corporation shall, after the effective date of
certification to the Secretary of State of Tennessee of the resolution referred
to in Section (5) of this Part C-I relating to the distinguishing
characteristics of such Series (i) issue shares of the capital stock of the
Corporation into which the shares of Serial Preferred Stock of such Series are
then convertible (the "Conversion Stock") as a stock dividend or in a stock
split, or otherwise subdivide its outstanding shares of Conversion Stock; or
(ii) combine its outstanding shares of Conversion Stock into a smaller number of
shares, the conversion price or ratio shall be proportionately adjusted so that
the holder of any share of Serial Preferred Stock of such Series thereafter
surrendered for conversion into the Conversion Stock in accordance with this
Section (4) shall be entitled to receive the number of shares of Conversion
Stock which he would have owned or been entitled to receive after the happening
of the events described above, had such share of Serial Preferred Stock of such
Series been converted into Conversion Stock immediately prior to such event.
Such adjustment shall become effective immediately after the close of business
on the record date of or for any such event.
(c) In the event of any capital reorganization or reclassification
of the Conversion Stock (except those for which provision is made pursuant to
subsection (b)), or the consolidation or merger of the Corporation into or with
another corporation, or the sale, conveyance, lease or other transfer by the
Corporation of all or substantially all of its property to any other
corporation, pursuant to which the then outstanding shares of the Conversion
Stock become exchangeable for other shares of stock or securities or cash or
other property, the holders of the Serial Preferred Stock of such Series shall
have the privilege thereafter to convert such shares into the kind and amount of
shares of stock, other securities, cash or property receivable upon such
reorganization, reclassification, consolidation, merger or transfer by a holder
of the number of shares of the Conversion Stock of the Corporation into which
such shares might have been converted immediately prior to such reorganization,
reclassification, consolidation, merger or transfer, at the conversion price or
ratio for such Series in effect immediately preceding such reorganization,
reclassification, consolidation, merger or transfer. Such privilege shall be
subject to further future adjustments of the conversion price or ratio for such
Series which are as nearly equivalent as may be practicable to the adjustments
provided pursuant to subsection (b). The above provisions of this subsection (c)
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers or transfers.
(d) Whenever the conversion price or ratio for shares of the Serial
Preferred Stock of such Series shall be adjusted pursuant to any of the
provisions hereof, the Corporation shall forthwith cause to be published at
least once in a daily newspaper of general circulation in the Borough of
Manhattan, City and State of New York, and cause to be mailed to the holders of
the outstanding shares of Serial Preferred Stock of such Series, as their names
and addresses appear in the stock registry books of the Corporation, a notice
setting forth the adjustment in such conversion price or ratio and shall also
file with the transfer agency, if any, for the Serial Preferred Stock of such
Series in said City and in the City of Nashville, Tennessee, a copy of
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such notice and a statement showing in reasonable detail the facts upon which
such adjustment is based. All calculations under this Section (4) shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(e) Such privilege to convert may be exercised by surrendering to
the Corporation for such purpose at its principal office or at its transfer
agency, if any, for the Serial Preferred Stock of such Series in the City of
Nashville, Tennessee or in the Borough of Manhattan, City and State of New York,
the certificates for the shares of the Serial Preferred Stock of such Series so
to be converted properly endorsed in blank or accompanied by proper instruments
of assignment. Upon the conversion of shares of Serial Preferred Stock of such
Series into the Conversion Stock, no adjustment shall be made for dividends on
the Serial Preferred Stock of such Series payable to holders of record after the
date of surrender of such shares for conversion or for dividends payable to
holders of the Conversion Stock of record prior to the date of surrender for
conversion. Shares shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such shares for conversion and
the person entitled to receive the Conversion Stock issuable upon such
conversion shall be treated for all purposes as the record holder of such
Conversion Stock at such time. In case shares of Serial Preferred Stock of such
Series are called for redemption, the privilege to convert such shares shall
cease and terminate at the close of business on the second business day prior to
the date fixed for redemption.
(f) No fractional shares or scrip representing fractional shares
shall be issued upon conversion of any share of Serial Preferred Stock of such
Series. If the conversion of any share of Serial Preferred Stock of such Series
results in a fractional share of Conversion Stock, an amount in cash equal to
such fraction multiplied by the value of one share of the Conversion Stock on
the conversion date shall be paid to the holder. Such value shall be the last
sales price, regular way, of the Conversion Stock of the Corporation on the New
York Stock Exchange (or such other exchange on which such stock shall be listed)
on the conversion date or, in case no sale takes place on such date, the average
of the closing bid and asked prices, regular way, on such exchange on such date
or, if such stock shall not then be listed on any exchange, the market price per
share (as determined by the Board of Directors) at the close of business on the
conversion date. The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of the shares of Serial Preferred
Stock of such Series, the full number of shares of Conversion Stock then
deliverable upon conversion of all shares of Serial Preferred Stock of such
Series then outstanding. The Corporation covenants that all shares of Conversion
Stock issued upon conversion of Serial Preferred Stock of such Series will, upon
issue, be legally issued and will be fully paid and nonassessable by the
Corporation.
(g) In case (i) the Corporation shall declare a dividend or other
distribution on its Conversion Stock payable otherwise than in cash out of its
earned surplus, or (ii) the Corporation shall authorize the granting to the
holders of its Conversion Stock of rights to
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subscribe for or purchase any shares of capital stock of any class or of any
other rights, or (iii) of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its outstanding shares
of Conversion Stock) or of any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the Corporation is
required or of the sale or transfer of the property and assets of the
Corporation as an entirety or substantially as an entirety, or (iv) of any
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation, then the Corporation shall mail or cause to be mailed to the
holders of the outstanding shares of Serial Preferred Stock of such Series at
least twenty days (or ten days in any case specified in clause (i) or clause
(ii) above) prior to the applicable record date hereinafter specified, a notice
stating the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or, if a record is not to be taken, the date as
of which the holders of Conversion Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective and the date as of
which it is expected that holders of Conversion Stock of record shall be
entitled to exchange their shares of the Conversion Stock for securities or
other property deliverable thereupon.
(5) DISTINGUISHING CHARACTERISTICS OF THE SERIES. The Serial Preferred
Stock may be issued, from time to time, in one or more Series each of which
shall constitute a separate class. The Board of Directors shall, by resolution
adopted and certified to the Secretary of State pursuant to Section 48-16-102 of
the Tennessee Business Corporation Act, fix and determine the distinguishing
characteristics and rights, privileges and immunities of each Series of Serial
Preferred Stock prior to the issuance of any shares of such Series. The
authority of the Board of Directors with respect to each Series shall include,
but shall not be limited to, the determination or fixing of the following:
(a) the number of shares constituting such Series and the
distinctive designation of such Series;
(b) the amounts, rates and kind of dividends, if any, to be paid on
the shares of such Series, the dates on which such dividends shall be payable,
whether or not dividends shall be cumulative and, if so, in what manner and from
what date or dates;
(c) whether or not the shares of such Series shall have voting
rights and, if so, the terms of such voting rights;
(d) whether or not the shares of such Series shall have conversion
privileges and, if so, the terms and conditions of such conversion privileges,
including provisions for adjustment of the conversion price or ratio in certain
events;
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(e) whether or not the shares of such Series shall be redeemable
and, if so, the terms and conditions of such redemption, including the date or
dates upon or after which such shares shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) the rights of the shares of such Series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(g) whether or not shares of such Series shall be entitled to the
benefit of a sinking or purchase fund for the purchase or redemption of such
shares and, if so, the amount of such fund and the manner of its application;
(h) the relative rights and preferences among different Series of
Serial Preferred Stock; and
(i) whether or not the shares of such Series which have been
redeemed or converted, or purchased or otherwise acquired by the Corporation and
cancelled, may be reissued as shares of the same or any other Series of Serial
Preferred Stock.
Each resolution adopted by the Board of Directors pursuant to the
powers expressly delegated to it in this Section (5) of Part C-I of Article
Sixth and pursuant to said Section 48-16-102 shall be certified to and filed
with the Secretary of State of the State of Tennessee as an amendment to this
Article Sixth.
No such resolution adopted by the Board of Directors and certified
to the Secretary of State as aforesaid may thereafter be amended, modified or
rescinded by the Board of Directors except that, unless otherwise provided by
the resolution creating such Series, authorized but unissued shares of a Series
may, by resolution similarly adopted and certified, be removed from the
authorized shares of such Series and may be authorized as shares of any other
junior or pari passu Series; and no such resolution may alter or change any of
the rights, privileges and immunities of any class of stock then outstanding so
as adversely to affect such class.
(6) REDUCTION OF CAPITAL. Without limiting the generality of Article
Eighth of the Charter, the Board of Directors is expressly authorized from time
to time to effect the reduction of the capital of the Corporation by redeeming
or purchasing and retiring all or any outstanding shares of any Series of Serial
Preferred Stock pursuant to any provisions of this Article Sixth or any
amendment thereto.
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PART C-II -- SUBORDINATED SERIAL PREFERRED STOCK, SERIES 1
The first Series of Subordinated Serial Preferred Stock shall be known
as "Subordinated Serial Preferred Stock, Series 1" (hereinafter referred to as
"Series 1 Serial Preferred Stock"), shall consist of 64,368 shares, without
nominal or par value, and shall have, in addition to the rights and preferences
granted by law and by Part C-I of this Article Sixth, the following
distinguishing characteristics, rights, privileges and immunities:
(1) DIVIDENDS. (a) Dividends shall be payable quarterly on the last
days of January, April, July and October on each outstanding share of Series 1
Serial Preferred Stock at the annual rate of $2.30.
(b) The Series 1 Serial Preferred Stock shall rank equally in right
to dividends with Series 2 Serial Preferred Stock but shall rank prior in right
to dividends to any other Series of Serial Preferred Stock; therefore, no
dividends shall be declared or paid on any outstanding share of any other Series
of Serial Preferred Stock, other than Series 2 Serial Preferred Stock, in
respect of any dividend period unless there shall likewise be or have been
declared on all shares of Series 1 Serial Preferred Stock at the time
outstanding full cumulative dividends, and no dividends shall be declared or
paid on any outstanding share of Series 2 Serial Preferred Stock unless there
shall likewise be or have been declared on all shares of Series 1 Serial
Preferred Stock at the time outstanding a ratable dividend based upon the
respective dividend rates of Series 1 and Series 2 Serial Preferred Stock at the
time in effect.
(c) Dividends with respect to shares of Series 1 Serial Preferred
Stock shall be cumulative, whether or not earned, from the date of issuance
thereof, so that if, for any previous or then current dividend period, dividends
shall not have been paid, or declared and set apart for payment, upon all
outstanding shares of Series 1 Serial Preferred Stock, the deficiency shall be
fully paid, or declared and set apart for payment, before any dividends are paid
or declared upon any subordinate Series of Serial Preferred Stock or upon the
Cumulative Preferred Stock, the Employees' Preferred Stock or the Common Stock.
Accumulated dividends shall not bear interest. Whenever full cumulative
dividends on all shares of Series 1 Serial Preferred Stock for all previous
dividend periods and for any then current period or periods shall have been paid
or declared and set apart for payment, the Board of Directors may declare
dividends upon any subordinate Series of Serial Preferred Stock, the Cumulative
Preferred Stock or the Common Stock, payable then or thereafter, and no holder
of any shares of Series 1 Serial Preferred Stock shall be entitled to share
therein by virtue of such holding.
(2) LIQUIDATION. (a) The amount payable with respect to shares of
Series 1 Serial Preferred Stock upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation prior to November 1, 1973, shall be
$40 per share and thereafter shall be the then prevailing redemption price for
shares of such Series, plus in every case an amount equal to all accumulated and
unpaid dividends, if any, accrued to the date fixed for final distribution to
the holders of shares of Series 1 Serial Preferred Stock, whether or not earned
or declared.
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(b) If, in the event of any such dissolution, liquidation or
winding up, the assets of the Corporation are not sufficient to pay in full to
the holders of shares of all Series of Serial Preferred Stock the respective
amounts which shall have been fixed and determined with respect thereto, no
payment shall be made to the holders of any other Series of Serial Preferred
Stock, other than Series 2 Serial Preferred Stock, unless and until all amounts
payable to the holders of Series 1 Serial Preferred Stock have been discharged
in full. In the event the assets of the Corporation are not sufficient to pay in
full to the holders of shares of both Series 1 and Series 2 Serial Preferred
Stock the respective amounts to which they are entitled, then the shares of both
Series 1 and Series 2 shall share ratably according to their respective
liquidation values. After payment in full to the holders of shares of Series 1
Serial Preferred Stock of the amounts set forth in subsection (a) of this
Section (2), no holder of such shares shall have any right or claim to any of
the remaining assets of the Corporation by virtue of such holding, and the same
shall be distributed among the holders of the Serial Preferred Stock of
subordinate Series, the Cumulative Preferred Stock, the Employees' Preferred
Stock and the Common Stock according to their respective rights hereunder.
(3) REDEMPTION. The Corporation may, subsequent to October 31, 1973, at
the option of the Board of Directors, redeem the Series 1 Serial Preferred Stock
or, from time to time, any part thereof at the redemption prices hereinafter set
forth, plus in every case an amount equal to all accumulated and unpaid
dividends accrued to the redemption date on the shares redeemed, whether or not
earned or declared. The redemption price for each share of Series 1 Serial
Preferred Stock redeemed at the option of the Board of Directors shall be $42.00
if redeemed prior to November 1, 1974, $41.60 if redeemed subsequent to October
31, 1974 and prior to November 1, 1975, $41.20 if redeemed subsequent to October
31, 1975 and prior to November 1, 1976, $40.80 if redeemed subsequent to October
31, 1976 and prior to November 1, 1977, $40.40 if redeemed subsequent to October
31, 1977 and prior to November 1, 1978, and $40.00 if redeemed subsequent to
October 31, 1978.
(4) CONVERSION. At the option of the holder thereof, each share of
Series 1 Serial Preferred Stock may be converted into five-sixths (0.8333) of
one fully paid and nonassessable share of Common Stock of the Corporation. Such
conversion ratio shall not be subject to adjustment except as provided in
subsections (b) and (c) of Section (4) of Part C-I of this Article Sixth.
(5) VOTING POWERS. Each holder of shares of Series 1 Serial Preferred
Stock shall be entitled to one vote on all matters for each shares of such stock
standing in his name on the books of the Corporation.
(6) STATUS OF UNISSUED AND REACQUIRED SHARES. Shares of Series 1 Serial
Preferred Stock redeemed or converted, purchased or otherwise acquired by the
Corporation and
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cancelled, shall have the status of authorized but unissued shares of such
Series, but may not be reissued except as follows: by resolution adopted by the
Board of Directors and certified as provided in Section (5) of Part C-I of this
Article Sixth, such shares, and any other authorized but unissued shares of
Series 1 Serial Preferred Stock, may be removed from the authorized shares of
such Series and be authorized and issued as shares of any junior Series of
Serial Preferred Stock.
(7) EXCHANGES FOR JUNIOR STOCK. Notwithstanding the provisions of Part
C-I(3)(f) of this Article Sixth, the Corporation or a subsidiary may from time
to time after February 4, 1988 (i) purchase, redeem or otherwise acquire shares
of Series 1 Serial Preferred Stock or of any other Series of Serial Preferred
Stock ranking as to dividends or assets equally with or junior to the Series 1
Serial Preferred Stock in exchange for shares of Common Stock or of any other
class of stock of the Corporation ranking as to dividends or assets junior to
the Series 1 Serial Preferred Stock (including shares of other Series of Serial
Preferred Stock) and cash payments in lieu of fractional shares and (ii) make
cash payments to the holders of shares of Series 1 Serial Preferred Stock and to
the holders of shares of other Series of Serial Preferred Stock ranking as to
dividends or assets equally with or junior to the Series 1 Serial Preferred
Stock who dissent to the amendments to the charter of the Corporation by which
this Section (7) and similar Sections applicable to such other Series are added
to the charter and who become entitled by law to receive payment from the
Corporation of the fair value of such shares. Any exchanges permitted hereunder
may be made pursuant to the conversion provisions applicable to the Series 1
Serial Preferred Stock or such other Series, in voluntary transactions with the
holders of any such Series of Serial Preferred Stock or pursuant to an amendment
to the charter.
PART C-III -- SUBORDINATED SERIAL PREFERRED STOCK, SERIES 2
The second Series of Subordinated Serial Preferred Stock shall be known
as "Subordinated Serial Preferred Stock, Series 2" (hereinafter referred to as
"Series 2 Serial Preferred Stock"), shall consist of 119,742 shares, without
nominal or par value, and shall have, in addition to the rights and preferences
granted by law and by Part C-I of this Article Sixth, the following
distinguishing characteristics, rights, privileges and immunities:
(1) DIVIDENDS. (a) Prior to November 1, 1973, dividends shall be
payable on each outstanding share of Series 2 Serial Preferred Stock at the
annual rate of $2.40 and thereafter at an annual rate equal to six percent (6%)
of the then prevailing redemption price as specified in Section (3) of this Part
C-III, and shall be payable quarterly on the last days of January, April, July
and October.
(b) The Series 2 Serial Preferred Stock shall rank equally in right
to dividends with Series 1 Serial Preferred Stock but shall rank prior in right
to dividends to any
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other Series of Serial Preferred Stock; therefore, no dividends shall be
declared or paid on any outstanding share of any other Series of Serial
Preferred Stock, other than Series 1 Serial Preferred Stock, in respect of any
dividend period unless there shall likewise be or have been declared on all
shares of Series 2 Serial Preferred Stock at the time outstanding full
cumulative dividends, and no dividends shall be declared or paid on any
outstanding share of Series 1 Serial Preferred Stock unless there shall likewise
be or have been declared on all shares of Series 2 Serial Preferred Stock at the
time outstanding a ratable dividend based upon the respective dividend rates of
Series 2 and Series 1 Serial Preferred Stock at the time in effect.
(c) Dividends with respect to shares of Series 2 Serial Preferred
Stock shall be cumulative, whether or not earned, from the date of issuance
thereof, so that if, for any previous or then current dividend period, dividends
shall not have been paid, or declared and set apart for payment, upon all
outstanding shares of Series 2 Serial Preferred Stock, the deficiency shall be
fully paid, or declared and set apart for payment, before any dividends are
declared or paid upon any subordinate Series of Serial Preferred Stock or upon
the Cumulative Preferred Stock, the Employees' Preferred Stock or the Common
Stock. Accumulated dividends shall not bear interest. Whenever full cumulative
dividends on all shares of Series 2 Serial Preferred Stock for all previous
dividend periods and for any then current period or periods shall have been paid
or declared and set apart for payment, the Board of Directors may declare
dividends upon any subordinate Series of Serial Preferred Stock, the Cumulative
Preferred Stock or the Common Stock, payable then or thereafter, and no holder
of any shares of Series 2 Serial Preferred Stock shall be entitled to share
therein by virtue of such holding.
(2) LIQUIDATION. (a) The amount payable with respect to shares of
Series 2 Serial Preferred Stock upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation prior to November 1, 1973, shall be
$40 per share and thereafter shall be the then prevailing redemption price for
shares of such Series, plus in every case an amount equal to all accumulated and
unpaid dividends, if any, accrued to the date fixed for final distribution to
holders of shares of Series 2 Serial Preferred Stock, whether or not earned or
declared.
(b) If, in the event of any such dissolution, liquidation or
winding up, the assets of the Corporation are not sufficient to pay in full to
the holders of shares of all Series of Serial Preferred Stock the respective
amounts which shall have been fixed and determined with respect thereto, no
payment shall be made to the holders of any other Series of Serial Preferred
Stock, other than Series 1 Serial Preferred Stock, unless and until all amounts
payable to the holders of Series 2 Serial Preferred Stock have been discharged
in full. In the event the assets of the Corporation are not sufficient to pay in
full to the holders of shares of both Series 2 and Series 1 Serial Preferred
Stock the respective amounts to which they are entitled, then the shares of both
Series 2 and Series 1 shall share ratably according to their respective
liquidation values. After payment in full to the holders of shares of Series 2
Serial Preferred Stock of the amounts set forth in subsection (a) of this
Section (2), no holder of such shares shall have any
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right or claim to any of the remaining assets of the Corporation by virtue of
such holding, and the same shall be distributed among the holders of the Serial
Preferred Stock of subordinate Series, the Cumulative Preferred Stock, the
Employees' Preferred Stock and the Common Stock according to their respective
rights hereunder.
(3) REDEMPTION. The Corporation may, subsequent to October 31, 1973, at
the option of the Board of Directors, redeem the Series 2 Serial Preferred Stock
or, from time to time, any part thereof at the redemption prices hereinafter set
forth, plus in every case an amount equal to all accumulated and unpaid
dividends accrued to the redemption date on the shares redeemed, whether or not
earned or declared. The redemption price for each share of Series 2 Serial
Preferred Stock redeemed at the option of the Board of Directors or pursuant to
the Sinking Fund shall be $40 if redeemed prior to January 1, 1974, $45 if
redeemed in the calendar year 1974 and shall increase by $2 per annum for each
calendar year thereafter.
(4) SINKING FUND. (a) So long as any shares of Series 2 Serial
Preferred Stock shall be outstanding, and as and for a sinking fund for the
redemption of shares of Series 2 Serial Preferred Stock, the Corporation shall,
on or before January 1, 1974, and each January 1 thereafter, deposit or cause to
be deposited in trust with some bank or trust company organized and doing
business under the laws of the United States of America or the State of New York
and having capital surplus and undivided profits aggregating at least Ten
Million Dollars ($10,000,000) and having its principal office in the Borough of
Manhattan, The City of New York, an amount of money sufficient to redeem 20% of
the shares of Series 2 Serial Preferred Stock originally issued or outstanding
on the sinking fund payment date, whichever is greater, at the redemption price
stated in Section (3) of this Part C-III prevailing during the calendar year in
which such sinking fund payment is required to be made.
(b) Moneys deposited in the sinking fund shall be applied on a pro
rata basis to the redemption of shares of Series 2 Serial Preferred Stock during
the calendar year in which such sinking fund payment is required to be made.
Until so applied such moneys may, at the option of the Corporation, be invested
in obligations issued or guaranteed by the United States Government.
(c) Any interest earned on moneys deposited in the sinking fund
shall be paid to the Corporation free of any trust.
(5) CONVERSION. The shares of Series 2 Serial Preferred Stock shall not
be convertible.
(6) VOTING POWERS. Each holder of shares of Series 2 Serial Preferred
Stock shall be entitled to one vote on all matters for each share of such stock
standing in his name on the books of the Corporation.
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(7) STATUS OF UNISSUED AND REACQUIRED SHARES. Shares of Series 2 Serial
Preferred Stock redeemed or purchased or otherwise acquired by the Corporation
and cancelled, shall have the status of authorized but unissued shares of such
Series, but may not be reissued except as follows: by resolution adopted by the
Board of Directors and certified as provided in Section (5) of Part C-I of this
Article Sixth, such shares, and any other authorized but unissued shares of
Series 2 Serial Preferred Stock, may be removed from the authorized shares of
such Series and be authorized and issued as shares of any junior Series of
Serial Preferred Stock.
(8) EXCHANGES FOR JUNIOR STOCK. Notwithstanding the provisions of Part
C-I(3)(f) of this Article Sixth, the Corporation or a subsidiary may from time
to time after February 4, 1988 (i) purchase, redeem or otherwise acquire shares
of Series 2 Serial Preferred Stock or of any other Series of Serial Preferred
Stock ranking as to dividends or assets equally with or junior to the Series 2
Serial Preferred Stock in exchange for shares of Common Stock or of any other
class of stock of the Corporation ranking as to dividends or assets junior to
the Series 2 Serial Preferred Stock (including shares of other Series of Serial
Preferred Stock) and cash payments in lieu of fractional shares and (ii) make
cash payments to the holders of shares of Series 2 Serial Preferred Stock
ranking as to dividends or assets equally with or junior to the Series 2 Serial
Preferred Stock who dissent to the amendments to the charter of the Corporation
by which this Section (8) and similar Sections applicable to such other Series
are added to the charter and who become entitled by law to receive payment from
the Corporation of the fair value of such shares. Any exchanges permitted
hereunder may be made pursuant to the conversion provisions applicable to such
other Series, in voluntary transactions with the holders of any such Series of
Serial Preferred Stock or pursuant to an amendment to the charter.
PART C-IV -- SUBORDINATED SERIAL PREFERRED STOCK, SERIES 3
The third Series of Subordinated Serial Preferred Stock shall be known
as "Subordinated Serial Preferred Stock, Series 3" (hereinafter referred to as
"Series 3 Serial Preferred Stock"), shall consist of 40,449 shares, without
nominal or par value, and shall have, in addition to the rights and preferences
granted by law and by Part C-I of this Article Sixth, the following
distinguishing characteristics, rights, privileges and immunities:
(1) DIVIDENDS. (a) Dividends shall be payable quarterly on the last
days of January, April, July and October on each outstanding share of Series 3
Serial Preferred Stock at the annual rate of $4.75.
(b) The Series 3 Serial Preferred Stock shall be subordinate in
right to dividends to Series 1 and Series 2 Serial Preferred Stock but shall
rank prior in right to dividends to any other Series of Serial Preferred Stock;
therefore, no dividends shall be
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declared or paid on any outstanding share of any other Series of Serial
Preferred Stock, other than Series 1 and Series 2 Serial Preferred Stock, in
respect of any dividend period unless there shall likewise be or have been
declared on all shares of Series 3 Serial Preferred Stock at the time
outstanding full cumulative dividends.
(c) Dividends with respect to shares of Series 3 Serial Preferred
Stock shall be cumulative, whether or not earned, from and after December 1,
1968, so that if, for any previous or then current dividend period, dividends
shall not have been paid, or declared and set apart for payment, upon all
outstanding shares of Series 3 Serial Preferred Stock, the deficiency shall be
fully paid, or declared and set apart for payment, before any dividends are paid
or declared upon any subordinate Series of Serial Preferred Stock or upon the
Cumulative Preferred Stock, the Employees' Preferred Stock or the Common Stock.
Accumulated dividends shall not bear interest. Whenever full cumulative
dividends on all shares of Series 3 Serial Preferred Stock for all previous
dividend periods and for any then current period or periods shall have been
paid, or declared and set apart for payment, the Board of Directors may declare
dividends upon any subordinate Series of Serial Preferred Stock, the Cumulative
Preferred Stock or the Common Stock, payable then or thereafter, and no holder
of any shares of Series 3 Serial Preferred Stock shall be entitled to share
therein by virtue of such holding.
(2) LIQUIDATION. (a) The amount payable with respect to shares of
Series 3 Serial Preferred Stock upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation shall be $100 per share plus an
amount equal to all accumulated and unpaid dividends, if any, accrued to the
date fixed for final distribution to the holders of shares of Series 3 Serial
Preferred Stock, whether or not earned or declared.
(b) If, in the event of any such dissolution, liquidation or
winding up, the assets of the Corporation are not sufficient to pay in full to
the holders of shares of all Series of Serial Preferred Stock the respective
amounts which shall have been fixed and determined with respect thereto, no
payment shall be made to the holders of Series 3 Serial Preferred Stock unless
and until all amounts payable to the holders of Series 1 and Series 2 Serial
Preferred Stock have been discharged in full, and no payment shall be made to
the holders of any other Series of Serial Preferred Stock, other than Series 1
and Series 2 Serial Preferred Stock, unless and until all amounts payable to the
holders of Series 3 Serial Preferred Stock have been discharged in full. After
payment in full to the holders of shares of Series 3 Serial Preferred Stock of
the amounts set forth in subsection (a) of this Section (2), no holder of such
shares shall have any right or claim to any of the remaining assets of the
Corporation by virtue of such holding, and the same shall be distributed among
the holders of the Serial Preferred Stock of subordinate Series, the Cumulative
Preferred Stock, the Employees' Preferred Stock and the Common Stock according
to their respective rights hereunder.
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(3) REDEMPTION. The Corporation may, subsequent to October 31, 1973, at
the option of the Board of Directors, redeem the Series 3 Serial Preferred Stock
or, from time to time, any part thereof at the redemption prices hereinafter set
forth, plus in every case an amount equal to all accumulated and unpaid
dividends accrued to the redemption date on the shares redeemed, whether or not
earned or declared. The redemption price for each share of Series 3 Serial
Preferred Stock redeemed, whether or not earned or declared. The redemption
price for each share of Series 3 Serial Preferred Stock redeemed at the option
of the Board of Directors shall be $105 if redeemed prior to November 1, 1974,
$104 if redeemed subsequent to October 31, 1974 and prior to November 1, 1975,
$103 if redeemed subsequent to October 31, 1975 and prior to November 1, 1976,
$102 if redeemed subsequent to October 31, 1976 and prior to November 1, 1977,
$101 if redeemed subsequent to October 31, 1977 and prior to November 1, 1978,
and $100 if redeemed subsequent to October 31, 1978.
(4) CONVERSION. At the option of the holder thereof, each share of
Series 3 Serial Preferred Stock may be converted into 2.10526 fully paid and
nonassessable shares of Common Stock of the Corporation. Such conversion ratio
shall not be subject to adjustment except as provided in subsections (b) and (c)
of Section (4) of Part C-I of this Article Sixth.
(5) VOTING POWERS. Each holder of shares of Series 3 Serial Preferred
Stock shall be entitled to two votes on all matters for each shares of such
stock standing in his name on the books of the Corporation.
(6) STATUS OF UNISSUED AND REACQUIRED SHARES. Shares of Series 3 Serial
Preferred Stock redeemed or converted, or purchased or otherwise acquired by the
Corporation and cancelled, shall have the status of authorized but unissued
shares of such Series, but may not be reissued except as follows: by resolution
adopted by the Board of Directors and certified as provided in Section (5) of
Part C-I of this Article Sixth, such shares, and any other authorized but
unissued shares of Series 3 Serial Preferred Stock, may be removed from the
authorized shares of such Series and be authorized and issued as shares of any
junior Series of Serial Preferred Stock.
(7) EXCHANGES FOR JUNIOR STOCK. Notwithstanding the provisions of Part
C-I(3)(f) of this Article Sixth, the Corporation or a subsidiary may from time
to time after February 4, 1988 (i) purchase, redeem or otherwise acquire shares
of Series 3 Serial Preferred Stock or of any other Series of Serial Preferred
Stock ranking as to dividends or assets equally with or junior to the Series 3
Serial Preferred Stock in exchange for shares of Common Stock or of any other
class of stock of the Corporation ranking as to dividends or assets junior to
the Series 3 Serial Preferred Stock (including shares of other Series of Serial
Preferred Stock) and cash payments in lieu of fractional shares and (ii) make
cash payments to the holders of shares of Series 3 Serial Preferred Stock and to
the holders of shares of other Series of Serial Preferred Stock ranking as to
dividends or assets equally with or junior to the Series 3 Serial Preferred
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Stock who dissent to the amendments to the charter of the Corporation by which
this Section (7) and similar Sections applicable to such other Series are added
to the charter and who become entitled by law to receive payment from the
Corporation of the fair value of such shares. Any exchanges permitted hereunder
may be made pursuant to the conversion provisions applicable to the Series 3
Serial Preferred Stock or such other Series, in voluntary transactions with the
holders of any such Series of Serial Preferred Stock or pursuant to an amendment
to the charter.
PART C-V -- SUBORDINATED SERIAL PREFERRED STOCK, SERIES 4
The fourth Series of Subordinated Serial Preferred Stock shall be known
as "Subordinated Serial Preferred Stock, Series 4" (hereinafter referred to as
"Series 4 Serial Preferred Stock"), shall consist of 53,764 shares, without
nominal or par value, and shall have, in addition to the rights and preferences
granted by law and by Part C-I of this Article Sixth, the following
distinguishing characteristics, rights, privileges and immunities:
(1) DIVIDENDS. (a) Dividends shall be payable quarterly on the last
days of January, April, July and October on each outstanding share of Series 4
Serial Preferred Stock at the annual rate of $4.75.
(b) The Series 4 Serial Preferred Stock shall be subordinate in
right to dividends to Series 1, Series 2 and Series 3 Serial Preferred Stock but
shall rank prior in right to dividends to any other Series of Serial Preferred
Stock; therefore, no dividends shall be declared or paid on any outstanding
share of any other Series of Serial Preferred Stock, other than Series 1, Series
2 and Series 3 Serial Preferred Stock, in respect of any dividend period unless
there shall likewise be or have been declared on all shares of Series 4 Serial
Preferred Stock at the time outstanding full cumulative dividends.
(c) Dividends with respect to shares of Series 4 Serial Preferred
Stock shall be cumulative, whether or not earned, from the date of issuance so
that if, for any previous or then current dividend period, dividends shall not
have been paid, or declared and set apart for payment, upon all outstanding
shares of Series 4 Serial Preferred Stock, the deficiency shall be fully paid,
or declared and set apart for payment, before any dividends are paid or declared
upon any subordinate Series of Serial Preferred Stock or upon the Cumulative
Preferred Stock, the Employees' Preferred Stock or the Common Stock. Accumulated
dividends shall not bear interest. Whenever full cumulative dividends on all
shares of Series 4 Serial Preferred Stock for all previous dividend periods and
for any then current period or periods shall have been paid, or declared and set
apart for payment, the Board of Directors may declare dividends upon any
subordinate Series of Serial Preferred Stock, the Cumulative Preferred Stock or
the Common Stock, payable then or thereafter, and no holder of any shares of
Series 4 Serial Preferred Stock shall be entitled to share therein by virtue of
such holding.
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(2) LIQUIDATION. (a) The amount payable with respect to shares of
Series 4 Serial Preferred Stock upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation shall be $100 per share plus an
amount equal to all accumulated and unpaid dividends, if any, accrued to the
date fixed for final distribution to the holders of shares of Series 4 Serial
Preferred Stock, whether or not earned or declared.
(b) If, in the event of any such dissolution, liquidation or
winding up, the assets of the Corporation are not sufficient to pay in full to
the holders of shares of all Series of Serial Preferred Stock the respective
amounts which shall have been fixed and determined with respect thereto, no
payment shall be made to the holders of Series 4 Serial Preferred Stock unless
and until all amounts payable to the holders of Series 1, Series 2 and Series 3
Serial Preferred Stock have been discharged in full, and no payment shall be
made to the holders of any other Series of Serial Preferred Stock, other than
Series 1, Series 2 and Series 3 Serial Preferred Stock, unless and until all
amounts payable to the holders of Series 4 Serial Preferred Stock have been
discharged in full. After payment in full to the holders of shares of Series 4
Serial Preferred Stock of the amounts set forth in subsection (a) of this
Section (2), no holder of such shares shall have any right or claim to any of
the remaining assets of the Corporation by virtue of such holding, and the same
shall be distributed among the holders of the Serial Preferred Stock of
subordinate Series, the Cumulative Preferred Stock, the Employees' Preferred
Stock and the Common Stock according to their respective rights hereunder.
(3) REDEMPTION. The Corporation may, subsequent to June 30, 1977, at
the option of the Board of Directors, redeem the Series 4 Serial Preferred Stock
or, from time to time, any part thereof at the redemption prices hereinafter set
forth, plus in every case an amount equal to all accumulated and unpaid
dividends accrued to the redemption date on the shares redeemed, whether or not
earned or declared. The redemption price for each share of Series 4 Serial
Preferred Stock redeemed at the option of the Board of Directors shall be $104
if redeemed prior to July 1, 1978, $103 if redeemed subsequent to June 30, 1978
and prior to July 1, 1979, $102 if redeemed subsequent to June 30, 1979 and
prior to July 1, 1980, $101 if redeemed subsequent to June 30, 1980 and prior to
July 1, 1981, and $100 if redeemed subsequent to June 30, 1981.
(4) CONVERSION. At the option of the holder thereof, each share of
Series 4 Serial Preferred Stock may be converted into 1.6667 fully paid and
nonassessable shares of Common Stock of the Corporation on or before April 30,
1974, or into 1.5151 fully paid and nonassessable shares of Common Stock of the
Corporation thereafter. Such conversion ratios shall not be subject to
adjustment except as provided in subsections (b) and (c) of Section (4) of Part
C-I of this Article Sixth.
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<PAGE> 48
(5) VOTING POWERS. Each holder of shares of Series 4 Serial Preferred
Stock shall be entitled to one vote on all matters for each share of such stock
standing in his name on the books of the Corporation.
(6) STATUS OF UNISSUED AND REACQUIRED SHARES. Shares of Series 4 Serial
Preferred Stock redeemed or converted, or purchased or otherwise acquired by the
Corporation and cancelled, shall have the status of authorized but unissued
shares of such Series, but may not be reissued except as follows: by resolution
adopted by the Board and certified as provided in Section (5) of Part C-I of
this Article Sixth, such shares, and any other authorized but unissued shares of
Series 4 Serial Preferred Stock, may be removed from the authorized shares of
such Series and be authorized and issued as shares of any junior Series of
Serial Preferred Stock.
(7) EXCHANGES FOR JUNIOR STOCK. Notwithstanding the provisions of Part
C-I(3)(f) of this Article Sixth, the Corporation or a subsidiary may from time
to time after February 4, 1988 (i) purchase, redeem or otherwise acquire shares
of Series 4 Serial Preferred Stock or of any other Series of Serial Preferred
Stock ranking as to dividends or assets equally with or junior to the Series 4
Serial Preferred Stock in exchange for shares of Common Stock or of any other
class of stock of the Corporation ranking as to dividends or assets junior to
the Series 4 Serial Preferred Stock (including shares of other Series of Serial
Preferred Stock) and cash payments in lieu of fractional shares and (ii) make
cash payments to the holders of shares of Series 4 Serial Preferred Stock and to
the holders of shares of other Series of Serial Preferred Stock ranking as to
dividends or assets equally with or junior to the Series 4 Serial Preferred
Stock who dissent to the amendments to the charter of the Corporation by which
this Section (7) and similar Sections applicable to such other Series are added
to the charter and who become entitled by law to receive payment from the
Corporation of the fair value of such shares. Any exchanges permitted hereunder
may be made pursuant to the conversion provisions applicable to the Series 4
Serial Preferred Stock or such other Series, in voluntary transactions with the
holders of any such Series of Serial Preferred Stock or pursuant to an amendment
to the charter.
PART C-VI -- SUBORDINATED SERIAL PREFERRED STOCK, SERIES 5
The fifth Series of Subordinated Serial Preferred Stock was known as
"Subordinated Serial Preferred Stock, Series 5" (hereinafter referred to as
"Series 5 Serial Preferred Stock"). There were 122,500 authorized shares of
Series 5 Serial Preferred Stock. The 122,500 shares of Series 5 Serial Preferred
Stock which were reacquired by the Corporation, cancelled and removed from the
authorized shares of such Series may be authorized and issued as shares of any
junior Series of Serial Preferred Stock by resolution adopted by the Board of
Directors and certified as provided in Section (5) of Part C-I of this Article
Sixth.
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PART C-VII -- SUBORDINATED SERIAL PREFERRED STOCK, SERIES 6
The sixth Series of Subordinated Serial Preferred Stock shall be known
as "Subordinated Serial Preferred Stock, Series 6" (hereinafter referred to as
"Series 6 Serial Preferred Stock"), shall consist of 400,000 shares without
nominal or par value, and shall have in addition to the rights and preferences
granted by law and by Part C-I of this Article Sixth, the following
characteristics, rights and preferences:
(1) DIVIDENDS. (a) Subject to the rights of the holders of any shares
of any class or series of Preferred Stock (or any similar stock) ranking prior
and superior to the Series 6 Serial Preferred Stock with respect to dividends,
the holders of shares of Series 6 Serial Preferred Stock, in preference to the
holders of the Cumulative Preferred Stock, the Employees' Preferred Stock, the
Common Stock 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 last days of January,
April, July and October 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 of Series 6 Serial Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set
forth, 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 6 Serial 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 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 6 Serial 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 6 Serial Preferred Stock as provided in paragraph (a) of this Section (1)
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
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Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $1.00 per share on the Series 6 Serial 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 6 Serial 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 6 Serial 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 6
Serial 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 6 Serial 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.
(2) VOTING RIGHTS. The holders of shares of Series 6 Serial Preferred
Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth,
each share of Series 6 Serial 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 6 Serial Preferred Stock were entitled immediately prior to such event
shall be adjusted (to the nearest whole vote per share) 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 any other Charter
Amendment creating a series of preferred stock or any similar stock, or by law,
the holders of shares of Series 6 Serial Preferred Stock and the holders of
shares of Common Stock and any other
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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) Except as set forth herein, or as otherwise provided by law,
holders of Series 6 Serial 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.
(3) CERTAIN RESTRICTIONS. (a) Whenever quarterly dividends or other
dividends or distributions payable on the Series 6 Serial Preferred Stock as
provided in Section (1) are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series
6 Serial 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 6 Serial Preferred
Stock;
(ii) declare or pay any 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 6 Serial
Preferred Stock, except dividends paid ratably on the Series 6 Serial
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 6 Serial 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 (both as to dividends and
upon dissolution, liquidation or winding up) to the Series 6 Serial
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series 6 Serial Preferred Stock, or any shares of stock ranking
on a parity with the Series 6 Serial 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
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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 (3), purchase or otherwise acquire such shares at such time and in
such manner.
(4) REACQUIRED SHARES. Any shares of Series 6 Serial 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
Subordinated Serial Preferred Stock and may be reissued as part of a new series
of Subordinated Serial Preferred Stock, subject to the conditions and
restrictions on issuance set forth herein, in the Charter or in any amendment
thereto creating a series of Subordinated Serial Preferred Stock or any similar
stock or as otherwise required by law.
(5) LIQUIDATION. Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series 6 Serial Preferred Stock, unless prior thereto the
holders of shares of Series 6 Serial 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 6 Serial 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 (ii) 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 6 Serial Preferred
Stock, except distributions made ratably on the Series 6 Serial 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 per share determined under clause (i) of
the preceding sentence immediately prior to such event 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.
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(6) CONSOLIDATION, MERGER, 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 6 Serial Preferred Stock shall at the same time be similarly
exchanged or changed into shares of such other stock or securities, cash and/or
other property having a value per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate value of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is exchanged or changed.
In the event 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 100 set forth in the preceding sentence (as adjusted, if
applicable) shall be adjusted by multiplying such number (or adjusted 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.
(7) NO REDEMPTION OR CONVERSION. The shares of Series 6 Serial
Preferred Stock shall not be redeemable or convertible.
(8) RELATIVE RIGHTS AND PREFERENCES. The Series 6 Serial Preferred
Stock ranks junior to the Series 1, 3 and 4 Serial Preferred Stock and senior to
all other series of Serial Preferred Stock, as to dividends and upon
liquidation, dissolution or winding up.
PART D -- SUBORDINATED CUMULATIVE PREFERRED STOCK
(1) DIVIDENDS. The holders of shares of Cumulative Preferred Stock
shall be entitled, before any dividends are declared or paid on the Common
Stock, but subject to the prior rights of the Convertible Preferred Stock, the
Subordinated Preference Stock of each Series and the Serial Preferred Stock of
each Series to dividends and to the sinking fund or purchase fund provisions
with respect thereto, to receive dividends, when and as declared by the Board of
Directors, at an annual rate per share equal to 45% of the average consolidated
earnings per share of the Common Stock of the Corporation for the preceding two
fiscal years as shown in the annual stockholders report of the Corporation as
published in each such year, but in no event less than $1.50 per share per
annum; provided, however, that in the event that the Corporation shall, after
December 1, 1967, (i) issue shares of Common Stock as a stock dividend, in a
stock split or otherwise subdivide its outstanding shares of Common Stock or
(ii) combine its outstanding shares of Common Stock into a smaller number of
shares, the annual dividend rate per share of Cumulative Preferred Stock shall
be based upon the
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consolidated earnings per share of Common Stock of the Corporation which would
have been outstanding had such subdivision or combination not taken place. Such
dividends shall be payable quarterly commencing on the last day of the first
quarter of each fiscal year and shall be cumulative from the first day of the
fiscal quarter in which issued.
Dividends with respect to Cumulative Preferred Stock shall be
cumulative, so that if, for any previous or then current dividend period,
dividends shall not have been paid, or declared and set apart for payment, upon
all outstanding shares of Cumulative Preferred Stock at the rate determined as
hereinbefore set forth, the deficiency shall be fully paid, or declared and set
apart for payment, before any dividends are paid or declared upon the Common
Stock. Accumulated dividends shall not bear interest. Whenever full cumulative
dividends on the Cumulative Preferred Stock for all previous dividend periods
and for any then current period or periods shall have been paid, or declared and
set apart for payment, the Board of Directors may declare dividends upon the
Common Stock, payable then or thereafter, and no holder of any shares of
Cumulative Preferred Stock, as such, shall be entitled to share therein.
(2) LIQUIDATION. Upon any dissolution, liquidation or winding up of the
Corporation, the holders of Cumulative Preferred Stock shall be entitled to be
paid from the assets (whether capital or surplus) of the Corporation, before any
payment or distribution shall be made to the holders of the Employees' Preferred
Stock or the Common Stock, but subject to and after prior payment of the amounts
payable with respect to the Convertible Preferred Stock, the Subordinated
Preference Stock and the Serial Preferred Stock, an amount per share equal to 88
time the average quarterly per share dividend paid on the Common Stock of the
Corporation for the previous eight quarters, but in no event less than $30 per
share; provided, however, that in the event that the Corporation shall, after
December 1, 1967 (i) issue shares of Common Stock as a stock dividend, in a
stock split, or otherwise subdivide its outstanding shares of Common Stock or
(ii) combine its outstanding shares of Common Stock into a smaller number of
shares, the amount payable shall be based upon the aggregate dividends paid on
the Common Stock for such periods divided by the number of shares of Common
Stock which would have been outstanding had such subdivision or combination not
taken place; plus in every case an amount equal to all accumulated and unpaid
dividends accrued to the date fixed for the final distribution to such holders,
whether or not earned or declared.
After payment in full of all amounts payable to the holders of the
Cumulative Preferred Stock, such shareholders, as such, shall have no right or
claim to any of the remaining assets of the Corporation, and the same shall be
distributed among the holders of the Employees' Preferred Stock and the Common
Stock in accordance with their respective rights hereunder.
(3) REDEMPTION. At the option of the Board of Directors, the
Corporation, subject to the restrictions set forth in this Section (3), may at
any time redeem the Cumulative
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Preferred Stock, or any part thereof, at a price equal to the amount payable on
liquidation; provided, however, that any redemption hereunder shall be made only
on a dividend payment date, and provided further that no less than 30 nor more
than 60 days prior to the date fixed for redemption, a notice specifying the
time and place of redemption and the redemption price shall be given to the
holders of record of the shares to be redeemed by publication of such notice in
one newspaper published and of general circulation in the City of Nashville,
Tennessee, and in one newspaper published and of general circulation in the
Borough of Manhattan, City and State of New York, and by mailing such notice to
such holders at their addresses, if any, as the same appear upon the stock
registry books.
If less than all outstanding shares of Cumulative Preferred Stock
are to be redeemed, the shares to be redeemed may be selected by the Board of
Directors by lot or in any other manner which the Board of Directors in its
unrestricted discretion may determine to be fair, and in such case the notice of
redemption mailed as aforesaid shall inform each registered holder of shares
called for redemption of the total number or proportion of shares registered in
his name that have been called for redemption, but the notice of redemption to
be published as aforesaid need not contain such information.
From and after the redemption date, unless default is made in the
payment of the redemption price when due, the shares so called for redemption
shall cease to be outstanding and the holders thereof shall cease to be
stockholders with respect to such shares and shall have no interest in or claim
against the Corporation with respect to such shares other than to receive the
redemption price on and after the date fixed for redemption without interest
thereon, upon surrender of their certificates with endorsement thereof if
required.
At any time after notice of redemption shall have been given as
hereinabove provided, the Corporation may deposit or cause to be deposited in
trust, to be applied to the redemption of the shares of Cumulative Preferred
Stock so called for redemption, with some bank or trust company organized and
doing business under the laws of the United States of America or the State of
New York and having capital surplus and undivided profits aggregating at least
Ten Million Dollars ($10,000,000), and having its principal office in the City
of Nashville, Tennessee or the Borough of Manhattan, the City and State of New
York, the aggregate amount to be paid on redemption to the holders of the shares
so to be redeemed upon surrender of the certificates for such shares. In case
any holder of shares of Cumulative Preferred Stock which shall have been called
for redemption shall not, within six (6) years after such deposit, have claimed
the amount deposited with respect to the redemption thereof, such bank or trust
company, upon demand, shall pay over to the Corporation such unclaimed amount
and shall thereupon be relieved of all responsibility in respect thereof to such
holder, and such holder shall look only to the Corporation for the payment
thereof. Any interest accrued on funds so deposited shall be paid to the
Corporation from time to time.
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If at any time the Corporation shall have failed to pay dividends
in full on all shares of Cumulative Preferred Stock, each Series of Subordinated
Preference Stock, each Series of Serial Preferred Stock, and Convertible
Preferred Stock and each other class of stock of the Corporation ranking as to
dividends or assets prior to or equally with the Cumulative Preferred Stock, or
shall be in default in respect of its obligations under any sinking fund or
purchase or redemption account for the purchase or redemption of any such senior
or pari passu stock, then and until all arrearages of such dividends for all
preceding dividend periods and for any current dividend period or periods shall
have been paid, or declared and set apart for payment, and all defaults under
such sinking funds or purchase or redemption accounts shall have been remedied,
neither the Corporation nor any subsidiary shall purchase or redeem, or
otherwise acquire for value any shares of Cumulative Preferred Stock or any
class of stock of the Corporation ranking as to dividends or assets equally with
or junior to the Cumulative Preferred Stock, and the Corporation shall not
declare or pay any dividend or make any other distribution on any shares of such
junior stock.
(4) VOTING POWERS. Each holder of Cumulative Preferred Stock shall be
entitled to one vote for each share of such stock standing in his name on the
books of the Corporation.
(5) REDUCTION OF CAPITAL. Without limiting the generality of Article
Eighth of the Certificate of Incorporation, the Board of Directors is expressly
authorized from time to time to effect the reduction of the capital of the
Corporation by redeeming or purchasing and retiring all or any outstanding
shares of Cumulative Preferred Stock pursuant to any provisions of this Article
Sixth or any amendment thereto.
PART E -- EMPLOYEES' SUBORDINATED CONVERTIBLE PREFERRED STOCK
(1) DIVIDENDS. No holder of shares of Employees' Preferred Stock shall
be entitled to receive dividends by virtue of such holding.
(2) LIQUIDATION. Upon any dissolution, liquidation or winding up of the
Corporation, the holders of Employees' Preferred Stock shall be entitled to be
paid from the assets (whether capital or surplus) of the Corporation, before any
payment or distribution shall be made to the holders of the Common Stock, but
subject to and after prior payment of the amounts payable with respect to the
Convertible Preferred Stock, Subordinated Preference Stock of each Series,
Serial Preferred Stock of each Series and Cumulative Preferred Stock, an amount
per share equal to 88 times the average quarterly per share dividend paid on the
Common Stock of the Corporation for the previous eight quarters, but in no event
less than $30 per share; provided, however, that in the event that the
Corporation shall, after December 1, 1967 (i) issue shares of Common Stock as a
stock dividend, in a stock split, or otherwise subdivide its outstanding shares
of Common Stock; or (ii) combine its outstanding shares of Common Stock into a
smaller number of shares, the amount payable shall be based
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upon the aggregate dividends paid on the Common Stock divided by the number of
shares of Common Stock which would have been outstanding had such subdivision or
combination not taken place.
After payment in full of all amounts payable to the holders of the
Employees' Preferred Stock, such shareholders, as such, shall have no right or
claim to any of the remaining assets of the Corporation, and the same shall be
distributed among the holders of the Common Stock.
(3) REDEMPTION. No shares of Employees' Preferred Stock shall be
subject to redemption by the Corporation.
(4) VOTING RIGHTS. Each holder of Employees' Preferred Stock shall be
entitled to one vote for each share of such stock standing in his name on the
books of the Corporation.
(5) CONVERSION. (a) At the option of the holder thereof, each share of
Employees' Preferred Stock may be converted into one fully paid and
nonassessable share of either (i) the Cumulative Preferred Stock, or (ii) the
Common Stock of the Corporation. Such option to convert may be exercised at any
time, provided, however, that in the event that any share of Employees'
Preferred Stock shall be issued partly paid, such share shall not be convertible
into either Cumulative Preferred Stock or Common Stock until it is fully paid.
(b) No adjustment will be made to the conversion ratio on account
of subsequent issuances of securities except that, if the Corporation shall,
after December 1, 1967 (i) issue shares of Common Stock as a stock dividend, in
a stock split, or otherwise subdivide its outstanding shares of Common Stock; or
(ii) combine its outstanding shares of Common Stock into a smaller number of
shares, the conversion ratio for Common Stock shall be immediately
proportionally adjusted so that the holder of any share of Employees' Preferred
Stock thereafter surrendered for conversion into Common Stock in accordance with
this Section (5) shall be entitled to receive the number of shares of Common
Stock which he would have owned or had been entitled to receive after the
happening of the events described above, had such share of Employees' Preferred
Stock been converted into Common Stock immediately prior to such event. Such
adjustments shall become effective immediately after the close of business on
the record date of or for any such event.
(c) In the event of any capital reorganization or reclassification
of the Cumulative Preferred Stock or the Common Stock of the Corporation (except
those for which provision is made pursuant to subsection (b)), or the
consolidation or merger of the Corporation into or with another corporation, or
the sale, conveyance, lease or other transfer by the Corporation of all or
substantially all of its property to any other corporation, pursuant to which
the then outstanding shares of Cumulative Preferred Stock or of Common Stock
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become exchangeable for other shares of stock or securities or cash or other
property, the holders of the Employees' Preferred Stock shall have the right
thereafter to convert such shares into the kind and amount of shares of stock,
other securities, cash or property receivable upon such reorganization,
reclassification, consolidation, merger or transfer by a holder of the number of
shares of Common Stock or Cumulative Preferred Stock of the Corporation into
which such shares might have been converted immediately prior to such
reorganization, reclassification, consolidation, merger or transfer, at the
conversion ratio in effect immediately preceding such reorganization,
reclassification, consolidation, merger or transfer. The above provisions of
this subsection (c) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers or transfers.
(d) Such option to convert may be exercised by surrendering to the
Corporation for such purpose at its principal office or at its transfer agency,
if any, for the Employees' Preferred Stock in the City of Nashville, Tennessee,
or in the Borough of Manhattan, City and State of New York, the certificates for
the shares of such Employees' Preferred Stock so to be converted properly
endorsed in blank or accompanied by proper instruments of assignment. Upon the
conversion of any share of Employees' Preferred Stock into Common Stock, no
adjustment shall be made for dividends payable to holders of Common Stock of
record prior to the date of surrender for conversion. Shares shall be deemed to
have been converted immediately prior to the close of business on the day of
surrender of said shares for conversion, and the person entitled to receive the
Cumulative Preferred Stock or the Common Stock (as the case may be) issuable
upon such conversion shall be treated for all purposes as the record holder of
such Cumulative Preferred Stock or Common Stock (as the case may be) at such
time.
(e) No fractional shares or scrip representing fractional shares shall
be issued upon conversion of any share of Employees' Preferred Stock. If the
conversion of any share of Employees' Preferred Stock would otherwise result in
a fractional share of Cumulative Preferred Stock or Common Stock (as the case
may be), equitable adjustment will be made, in such manner as may be determined
by the Board of Directors, in lieu of the issuance thereof. The Corporation
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Cumulative Preferred Stock and Common Stock, for
the purpose of effecting the conversion of the shares of Employees' Preferred
Stock, the full number of shares of Cumulative Preferred Stock and Common Stock,
respectively, then deliverable upon conversion of all shares of Employees'
Preferred Stock then outstanding. The Corporation covenants that all shares of
Cumulative Preferred Stock or of Common Stock issued upon conversion of
Employees' Preferred Stock will, upon issue, be legally issued and will be fully
paid and nonassessable by the Corporation and that the Corporation will take no
action which will reduce the conversion price below the then stated value of the
Cumulative Preferred Stock or the then par value of the Common Stock.
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(f) In case (i) the Corporation shall declare a dividend or other
distribution on its Cumulative Preferred Stock or on its Common Stock payable
otherwise than in cash out of its earned surplus, or (ii) the Corporation shall
authorize the granting to the holders of its Cumulative Preferred Stock of or
its Common Stock of rights to subscribe for or purchase any shares of capital
stock of any class or of any other rights, or (iii) of any reclassification of
the capital stock of the Corporation (other than a subdivision or combination of
its outstanding shares of Common Stock) or of any consolidation or merger to
which the Corporation is a party and for which approval of any stockholders of
the Corporation is required or of the sale or transfer of the property and
assets of the Corporation as an entirety or substantially as an entirety, or
(iv) of any voluntary or involuntary dissolution, liquidation or winding up of
the Corporation, then the Corporation shall mail or cause to be mailed to the
holders of record of the Employees' Preferred Stock at least twenty days (or ten
days in any case specified in clause (i) or clause (ii) above) prior to the
applicable record date hereinafter specified, a notice stating the date on which
a record is to be taken for the purpose of such dividend, distribution or rights
or, if a record is not to be taken, the date as of which the holders of
Cumulative Preferred Stock or of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective and the date as of
which it is expected that holders of Cumulative Preferred Stock or of Common
Stock of record shall be entitled to exchange their shares of the Cumulative
Preferred Stock or of the Common Stock for securities or other property
deliverable thereupon.
PART F -- COMMON STOCK
None of the shares of Common Stock shall be entitled to any preference
and each share of Common Stock shall be equal to every other share of said stock
in every respect.
Each holder of Common Stock shall be entitled to one vote for each
share of such stock standing in his name on the books of the Corporation.
After payment, or declaration and setting aside for payment, of the
full cumulative dividends for all prior and then current dividend periods on all
outstanding shares of Convertible Preferred Stock, Subordinated Preference Stock
of each Series, Serial Preferred Stock of each Series, and Cumulative Preferred
Stock and after setting aside all stock purchase funds or sinking funds required
to be set aside with respect to the Convertible Preferred Stock, Subordinated
Preference Stock of each Series, and Serial Preferred Stock of each Series,
dividends on the Common Stock may be declared and paid (subject to the
provisions of this Article Sixth) but only when and as determined by the Board
of Directors.
On any dissolution, liquidation or winding up of the Corporation, after
there shall have been paid to, or set aside for, the holders of all outstanding
shares of Convertible Preferred Stock, Subordinated Preference Stock of each
Series, Serial Preferred Stock of each Series,
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Cumulative Preferred Stock, and Employees' Preferred Stock the full preferential
amounts to which they are respectively entitled, the holders of the Common Stock
shall be entitled to receive, pro rata, all the remaining assets of the
Corporation available for distribution to the stockholders.
SEVENTH: The Corporation will not commence business until consideration
of One Thousand Dollars ($1,000) has been received for the issuance of shares.
EIGHTH: The Board of Directors of the Corporation shall be expressly
authorized to reduce the capital stock of the Corporation within their
discretion, from time to time, in such manner as may be provided by law.
NINTH: The shareholder vote required to approve Business Combinations
(as hereinafter defined) shall be as set forth in this Article Ninth.
(1) VOTING REQUIREMENT. In addition to any affirmative vote required by
law or any other Article of this charter, and except as otherwise expressly
provided in Section (2) of this Article Ninth, any Business Combination shall
require an affirmative vote at least equal to the sum of (i) the votes entitled
to be cast by the holders of shares of Voting Stock (as defined herein) which
are Beneficially Owned (as defined herein) by the Interested Shareholder (as
defined herein); plus (ii) sixty-seven percent (67%) of the votes entitled to be
cast by all other holders of Voting Stock, voting together as a single class at
a meeting of shareholders called for such purpose. Such affirmative vote shall
be required notwithstanding the fact that a vote would not otherwise be
required, or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) WHEN VOTING REQUIREMENT NOT APPLICABLE. The provisions of Section
(1) of this Article Ninth shall not be applicable to (i) a Business Combination
that does not involve cash or other consideration being received by the
shareholders of the Corporation solely in their capacities as shareholders, if
such Business Combination shall have been approved by a majority of the
Disinterested Directors (as defined herein) or (ii) any other Business
Combination, if such Business Combination shall have been approved by a majority
of the Disinterested Directors or all of the following conditions specified in
subsections (2.1), (2.2) and (2.3) shall have been met:
(2.1) FAIR PRICES. The aggregate amount per share of the cash and
the Fair Market Value (as defined herein), as of a date not more than forty-five
(45) days prior to the consummation of the Business Combination, of the
consideration other than cash to be received in such Business Combination by
holders of shares of the respective classes and series of outstanding capital
stock of the Corporation shall be at least equal to the highest of the
following:
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(a) If applicable, the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees and adjusted for
any subsequent stock dividends, split, combinations, recapitalizations,
reclassifications or such reorganizations) paid to acquire any shares of
such respective classes and series Beneficially Owned by the Interested
Shareholder during the Pre-announcement Period (as defined herein);
(b) The highest per share price (including brokerage commissions,
transfer taxes and soliciting dealers' fees and adjusted for any
subsequent stock dividends, splits, combinations, recapitalizations,
reclassifications or other such reorganizations) paid to acquire any
shares of such respective classes and series Beneficially Owned by the
Interested Shareholder in the transaction in which the Interested
Shareholder became an Interested Shareholder;
(c) The Fair Market Value per share of such respective classes and
series on the Announcement Date (as defined herein);
(d) The Fair Market Value per share of such respective classes and
series of the Determination Date (as defined herein);
(e) If applicable, the Fair Market Value per share determined
pursuant to subsection (2.1)(c) or (2.1)(d), whichever is higher,
multiplied by the ratio of (i) the highest price per share (including any
brokerage commissions, transfer taxes or soliciting dealers' fees and
adjusted for any subsequent stock dividends, splits, combinations,
recapitalizations, reclassifications or other such reorganizations) paid
to acquire any shares of such respective classes and series Beneficially
Owned by the Interested Shareholder within the Pre-announcement Period to
(ii) the Fair Market Value per share (adjusted for any subsequent stock
dividends, splits, combinations, recapitalizations, reclassifications or
other such reorganizations) of shares of such respective classes and
series on the first day in the Pre-announcement Period on which such
shares Beneficially Owned by the Interested Shareholders were acquired;
or
(f) The amount per share of any preferential payment to which
holders of shares of such respective classes and series are entitled in
the event of a liquidation, dissolution or winding up of the Corporation.
(2.2) FORM OF CONSIDERATION. The consideration to be received by
holders of each particular class and series of outstanding capital stock of the
Corporation in a Business Combination shall be (i) in cash or (ii) if the
majority of the shares of any particular class or series of the capital stock of
the Corporation Beneficially Owned by the Interested Shareholder
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shall have been acquired for a consideration in a form other than cash, in the
same form of consideration used to acquire the largest number of shares of such
class or series previously acquired and Beneficially Owned by the Interested
Shareholder.
(2.3) OTHER REQUIREMENTS. After such Interested Shareholder has
become an Interested Shareholder and prior to the consummation of such Business
Combination, except as approved by a majority of the Disinterested Directors,
there shall have been:
(a) No failure to declare and pay in full, when and as due, any
dividends on any class or series of Preferred Stock (as defined herein)
(whether cumulative or not) except on any class or series of Preferred
Stock as to which dividends were in arrears on the Determination Date;
(b) No reducation in the quarterly rate of any dividends on the
Corporation's Common Stock below the dividends paid during the dividend
quarter of the Corporation ended immediately prior to the Determination
Date, except any reduction in dividends necessary to fairly reflect any
stock dividend, split, recapitalization, reclassification or other such
reorganization;
(c) No failure to increase the quarterly rate of any dividends per
share paid on the Corporation's Common Stock to fairly reflect any
stock combination, recapitalization, reclassification or such other
reorganization which has the effect of reducing the number of
outstanding shares of Common Stock;
(d) No increase in the number of shares of the capital stock of the
Corporation Beneficially Owned by the Interested Shareholder, except
(i) as a part of the transaction that resulted in the Interested
Shareholder becoming an Interested Shareholder or (ii) to consummate
the Business Combination in compliance with the provisions of this
Article Ninth;
(e) No loans, advances, guarantees, pledges or other financial
assistance or tax credits or other tax advantages provided by the
Corporation or its subsidiaries for the benefit, directly or
indirectly, of the Interested Shareholder, whether in anticipation of
or in connection with such Business Combination or otherwise;
(f) No material change in the Corporation's business or capital
structure effected, directly or indirectly, by the Interested
Shareholder; and
(g) A proxy or information statement mailed at least thirty (30)
days prior to the completion of the Business Combination to all the
holders of Voting Stock (whether or not shareholder approval of the
Business Combination is required), which proxy or
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information statement shall (i) describe the Business Combination, (ii)
include in a prominent place the recommendations, if any, of a majority
of the Disinterested Directors as to the advisability or inadvisability
of the Business Combination, (iii) if deemed advisable by a majority of
the Disinterested Directors, include an opinion of a reputable
investment banking firm or other expert as to the fairness or
unfairness of the terms of the Business Combination from the point of
view of the shareholders other than the Interested Shareholder (such
investment banking firm to be selected by a majority of the
Disinterested Directors and to be paid a reasonable fee for their
services by the Corporation upon receipt of such opinion), and (iv) be
responsive to the pertinent provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder, or any
laws supplementing or superseding such Act, rules and regulations,
whether or not such proxy or information statement is required by law
to be furnished to any holders of Voting Stock.
(3) DEFINITIONS. The following definitions shall apply for purposes of
this Article Ninth:
(3.1) "Business Combination" means any of the transactions
described below:
(a) Any merger or consolidation of the Corporation or any
Subsidiary (as defined herein) with (i) any Interested Shareholder or
(ii) any corporation (whether or not itself an Interested Shareholder)
which is, or after such merger or consolidation would be, an Affiliate
(as defined herein) of an Interested Shareholder;
(b) Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions, (i) to or
with any Interested Shareholder or any Affiliate of any Interested
Shareholder of any assets (including securities) of the Corporation or
any Subsidiary having an aggregate Fair Market Value of $1,000,000 or
more or (ii) to or with the Corporation or any Subsidiary of any assets
(including securities) of any Interested Shareholder or any Affiliate of
an Interested Shareholder having an aggregate Fair Market Value of
$1,000,000 or more;
(c) The issuance or transfer by the Corporation or any Subsidiary
in one transaction or a series of transactions, of any securities of the
Corporation or any Subsidiary to an Interested Shareholder or an
Affiliate of any Interested Shareholder in exchange for cash, securities
or other property, or a combination thereof, having an aggregate Fair
Market Value of $1,000,000 or more;
(d) The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate of any Interested Shareholder;
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(e) Any reclassification of securities or any recapitalization or
reorganization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other similar transaction
(whether or not with or into or otherwise involving an Interested
Shareholder) which has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any class of equity
securities of the Corporation or any Subsidiary (including securities
convertible into equity securities) which is directly or indirectly owned
by any Interested Shareholder or any Affiliate of any Interested
Shareholder;
(f) Any other transaction or series of transactions that is similar
in purpose or effect to those referred to in (a) through (e) of this
subsection (3.1).
(3.2) "Voting Stock" means the Common Stock and those classes of
Preferred Stock which would then be entitled to vote in the election of
directors.
(3.3) "Beneficially Owned," with respect to any securities, means
the right or power (directly or indirectly through any contract, understanding
or relationship) (i) to vote or direct the voting of such securities, (ii) to
dispose or direct the disposition of such securities, or (iii) to acquire such
voting or investment power whether such right or power is exercisable
immediately or only after the passage of time.
(3.4) "Interested Shareholder" means any Person (as herein defined)
or member of a Group of Persons (as defined herein) who or which, together with
any Affiliate or Associate (as herein defined) of such Person or member,
Beneficially Owns (within the meaning of subsection (3.3) above) ten percent or
more of the outstanding Voting Stock of the Corporation.
(3.5) "Person" means any individual, firm, corporation,
partnership, joint venture or other entity.
(3.6) "Group of Persons" means any two or more Persons who or which
are acting or have agreed to act together for the purpose of acquiring, holding,
voting or disposing of any Voting Stock of the Corporation.
(3.7) "Disinterested Director" means any member of the Board of
Directors of the Corporation who is not an Affiliate or Associate of the
Interested Shareholder and who (i) was a member of the Board of Directors prior
to the time the Interested Shareholder became an Interested Shareholder or (ii)
was elected or recommended to succeed a Disinterested Director by a majority of
the Disinterested Directors then on the Board of Directors.
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(3.8) "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding the
date in question 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, if such
stock is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc., Automated
Quotations System or any system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined by a majority of the Disinterested Directors in good faith;
and (ii) in the case of property other than cash or stock, the fair market value
of such property on the date in question as determined by a majority of the
Disinterested Directors in good faith.
(3.9) "Pre-announcement Period" means the two-year period ending at
11:59 p.m., New York City time, on the Announcement Date.
(3.10) "Announcement Date" means the date of the first public
announcement of the proposal of the Business Combination.
(3.11) "Determination Date" means the date on which the Interested
Shareholder becomes an Interested Shareholder.
(3.12) "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
Corporation.
(3.13) "Affiliate," used to indicate a relationship with a
specified Person, means another Person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, such specified Person.
(3.14) "Associate," used to indicate a relationship with a
specified Person, means (i) any corporation or other similar organization (other
than the Corporation or a Subsidiary) of which such specified Person is an
officer or partner or is, directly or indirectly, the beneficial owner of ten
percent or more of any class of equity securities, (ii) any trust or estate in
which such specified Person has a substantial beneficial interest or as to which
such specified Person serves as trustee or in a similar fiduciary capacity, and
(iii) any relative or spouse of such specified Person, or any relative of such
spouse who has the same home as such Person.
(3.15) "Preferred Stock" means all classes or series of the
Corporation's capital stock other than Common Stock.
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(4) POWERS OF DISINTERESTED DIRECTORS. A majority of the Disinterested
Directors of the Corporation shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article Ninth, including without limitation
(i) whether a Person is an Interested Shareholder, (ii) the number of shares of
Voting Stock beneficially owned by any Person, (iii) whether a Person is an
Affiliate or Associate of another, (iv) whether the requirements of Section 2
have been met with respect to any Business Combination, and (v) whether the
assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $1,000,000 or more. The good faith determination of a majority
of the Disinterested Directors on such matters shall be conclusive and binding
for all purposes of this Article Ninth.
(5) NO EFFECT ON PREFERENTIAL RIGHTS. The provisions of this Article
Ninth shall not affect in any way the amount or form of consideration that any
holder of shares of the Corporation's capital stock is entitled to receive upon
the liquidation or dissolution of the Corporation or any other preferential
rights of the holders of such shares.
(6) NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED SHAREHOLDERS.
Nothing contained in this Article Ninth shall be construed to relieve the Board
of Directors of the Corporation or any Interested Shareholder from any fiduciary
obligation imposed by law.
(7) AMENDMENT OR REPEAL. In addition to any affirmative vote required
by law, an affirmative vote at least equal to the sum of (i) the votes entitled
to be cast by the holders of shares of Voting Stock which are Beneficially owned
by any Interested Shareholder plus (ii) sixty-seven percent (67%) of the votes
entitled to be cast by all other holders of Voting Stock, voting together as a
single class at a meeting of shareholders called for such purpose, shall be
required to amend or repeal, or adopt any charter provisions inconsistent with,
this Article Ninth. Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that a lesser percentage may be specified,
by law or in any agreement with any national securities exchange or otherwise.
TENTH: No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except to the extent provided by the Tennessee Business
Corporation Act as in effect from time to time. This Article shall not eliminate
or limit the liability of a director for any act or omission occurring prior to
the effective date of its adoption.
Any repeal or modification of the provisions of this Article
Tenth, by the shareholders of the Corporation directly or by the adoption of an
inconsistent provision of this
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charter, shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
PART II:
FIRST: The original charter was filed by the Secretary of State on July
7, 1925, and the reincorporation charter was filed by the Secretary of State on
October 19, 1934.
SECOND: The charter was previously restated by action of the Board of
Directors on January 11, 1984 (the "1984 Restated Charter").
THIRD: This restated charter incorporates all amendments since the 1984
Restated Charter and makes further amendments not requiring shareholder
approval. This restatement was duly adopted at a meeting of the Board of
Directors on April 24, 1991.
DATED: April 30, 1991
Genesco Inc.
By William C. O'Connor
Secretary
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