<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-B
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
Filed Pursuant to Section 12(b) or (g) of The Securities Exchange Act of 1934
Federal Paper Board Company, Inc.
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(Exact name of registrant as specified in its charter)
North Carolina 22-0904830
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(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
75 Chestnut Ridge Road, Montvale, New Jersey 07645
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
<S> <C>
Common Stock, par value $1.00 per share New York Stock Exchange
$1.20 Convertible Preferred Stock, par New York Stock Exchange
value $1.00 per share
$2.875 Cumulative Convertible Preferred Stock,
Class A, par value $1.00 per share, Second
Series New York Stock Exchange
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. GENERAL INFORMATION.
(a) On October 8, 1993 Federal Paper Board Company, Inc. (the
"Registrant") was organized as a corporation under the laws of North Carolina.
(b) The Registrant's fiscal year is composed of 13 periods and ends on or
about December 31.
ITEM 2. TRANSACTION OF SUCCESSION.
(a) The name of the predecessor of Registrant is Federal Paper Board
Company, Inc., a New York corporation ("Old Federal"). Its common stock, $5.00
par value (the "Common Stock"), $1.20 Convertible Preferred Stock, $1.00 par
value (the "$1.20 Preferred"), and $2.875 Cumulative Convertible Preferred
Stock, $1.00 par value (the "$2.875 Preferred" and, together with the $1.20
Preferred, the "Preferred Stock")) were registered with the Securities and
Exchange Commission (the "SEC") pursuant to Section 12(b) of the Securities
Exchange Act of 1934 prior to the succession.
(b) The succession was a result of a reincorporation of Old Federal.
Fedco, Inc. ("Fedco"), a North Carolina corporation and a wholly-owned
subsidiary of Old Federal prior to the reincorporation, was the surviving
corporation of a merger of Old Federal with and into Fedco (the "Merger")
pursuant to an Agreement of Merger, dated January 20, 1994 (the "Agreement of
Merger"). The Agreement of Merger also provided for the change of the name of
Fedco to Federal Paper Board Company, Inc. The Common Stock and the Preferred
Stock were converted into Common Stock and Preferred Stock of the Registrant,
as appropriate on April 20, 1994 pursuant to the provisions of the Agreement of
Merger. The conversion was effected upon a share-for-share basis.
Holders of the Registrant's capital stock possess, in all material
respects, to the extent permitted by law, the same rights, powers, privileges
and limitations previously held by holders of shares of the equivalent class of
Old Federal capital stock. It will not be necessary for Old Federal
shareholders physically to exchange their certificates representing Old Federal
capital stock for certificates representing the equivalent shares of the
Registrant's capital stock. As a result of the Merger, each certificate of Old
Federal capital stock automatically represents a certificate for a like number
of shares of the equivalent class of the Registrant's Stock.
<PAGE> 3
ITEM 3. SECURITIES TO BE REGISTERED.
Registration is sought under this Form 8-B for the following securities:
<TABLE>
<CAPTION>
Number issued and
held on account
by or for the
Number authorized as Number issued as Registrant as
Class of March 31, 1994 of March 31, 1994 of March 31, 1994
----------- -------------------- ----------------- -----------------
<S> <C> <C> <C>
Common Stock 240,000,000 42,364,742 155,685
$1.20 Preferred 1,900,000 55,937 None
$2.875 Preferred Stock 10,000,000 2,274,410 None
</TABLE>
ITEM 4. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The authorized capital stock of the Registrant consists of 240,000,000 shares
of Common Stock, 1,900,000 shares of $1.20 Preferred and 10,000,000 shares of
Cumulative Convertible Preferred Stock, $1.00 par value.
Common Stock, $5.00 par value
A description of the Common Stock is contained in the Registration Statement
on Form S-8 (No. 33-34440) of Old Federal in the section captioned "Description
of Capital Stock". Such description is incorporated herein by reference.
Convertible Preferred Stock, $1.20 par value
A description of the $1.20 Preferred Stock is contained in the Registration
Statement on Form S-8 (No. 33-34440) of Old Federal in the section captioned
"Description of Capital Stock". Such description is incorporated herein by
reference.
Cumulative Convertible Preferred Stock, $2.875 par value
A description of the $2.875 Preferred is contained in the Registration
Statement on Form S-8 (No. 33-34440) of Old Federal in the section captioned
"Description of Capital Stock". Such description is incorporated herein by
reference.
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. The capital structure and balance sheet of
Registrant after the succession are substantially the same as those of
its predecessor. Accordingly, no financial statements are required
herein.
<PAGE> 4
(b) Exhibits.
2.1 Agreement of Merger, dated as of January 20, 1994, by and between Old
Federal and the Registrant.
3.1 Articles of Incorporation of the Registrant.
3.2 Articles of Amendment of the Registrant.
3.3 By-Laws of Registrant.
4.1 Indenture, dated as of April 1, 1991 (the "Indenture") between Old
Federal and Chemical Bank (successor by merger to Manufacturers
Hanover Trust Company) (the "Trustee"), relating to Old Federal's 10%
Debentures due 2011, 8-1/8% Debentures due 2002, and 8-7/8% Debentures
due 2012 (incorporated herein by reference to Exhibit 4 to Old
Federal's Registration Statement on Form S-3 (No. 33-48063)).
4.2 First Supplemental Indenture, dated as of April 20, 1994 between the
Registrant and the Trustee to the Indenture, relating to the
succession of Registrant to Old Federal.
10.1 The employment contract of Mr. J.R. Kennedy (incorporated herein by
reference to Exhibit 10 to Old Federal's Annual Report on Form 10-K
for the 1987 fiscal year ended January 2, 1988) and Amendments No. 1
and No. 2 thereto (incorporated herein by reference to Exhibit 10 to
Old Federal's Annual Report on Form 10-K for the 1991 fiscal year
ended December 28, 1991).
10.2 The employment contract of Mr. Q.J. Kennedy (incorporated herein by
reference to Exhibit 10 to Old Federal's Annual Report on Form 10-K
for the 1987 fiscal year ended January 2, 1988) and Amendments No. 1
and No. 2 thereto (incorporated herein by reference to Exhibit 10.1 to
Old Federal's Annual Report on Form 10-K for the 1991 fiscal year
ended December 28, 1991).
10.3 The employment contract of Mr. R.D. Baldwin (incorporated herein by
reference to Exhibit 10.2 to Old Federal's Annual Report on Form 10-K
for the 1991 fiscal year ended December 28, 1991).
10.4 The employment contract of Mr. W.M. Massey (incorporated herein by
reference to Exhibit 10.2 to Old Federal's Annual Report on Form 10-K
for the 1990 fiscal year ended December 29, 1990).
10.5 Old Federal's 1992 Key Employees Stock Option Plan (incorporated
herein by reference to Exhibit 28 to Old Federal's Registration
Statement on Form S-8 (No. 33-48654)).
10.6 Old Federal's 1989 Key Employees Stock Option Plan (incorporated
herein by reference to Exhibit 28 to Old Federal's Registration
Statement on Form S-8 (No. 33-34440)).
10.7 Old Federal's 1991 Key Employees Long Term Compensation Plan, as
amended, dated June 18, 1991, (incorporated herein by reference to
Exhibit 10.7 to Old Federal's Annual Report on Form 10-K for the 1992
fiscal year ended on January 2, 1993 (the "1992 10-K")).
10.8 Old Federal's Supplemental Executive Retirement Plan dated April 18,
1991 (incorporated herein by reference to Exhibit 10.8 to Old
Federal's 1992 10-K).
10.9 Old Federal's 1988 Plan for the Compensation of Directors, as amended,
dated June 18, 1991 (incorporated herein by reference to Exhibit 10.9
to Old Federal's 1992 10-K).
<PAGE> 5
10.10 Old Federal's 1992 Stock Option Plan for Non-Employee Directors
(incorporated herein by reference to Exhibit 10.10 to Old Federal's
1992 10-K).
10.11 Old Federal's Retirement Plan for Outside Directors dated September
20, 1988 (incorporated herein by reference to Exhibit 10.11 of Old
Federal's 1992 10-K).
10.12 Old Federal's 1992 Key Employees Long Term Compensation Plan
(incorporated herein by reference to Exhibit 10 to Old Federal's
Quarterly Report on Form 10-Q for the quarter ended March 26, 1994).
11 Statement re computation of per share earnings (incorporated herein by
reference to Exhibit 11 to Old Federal's Annual Report on Form 10-K
for the 1993 fiscal year ended on January 1, 1994 (the "1993 10-K")).
21 Subsidiaries of the Registrant (incorporated herein by reference to
Exhibit 21 to Old Federal's 1993 10-K).
99 Old Federal's Proxy Statement, dated October 8, 1993, for Old
Federal's special meeting of shareholders held on November 16, 1993
(incorporated herein by reference).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this application for registration (or
registration statement) to be signed on its behalf by the undersigned,
thereunto duly authorized.
FEDERAL PAPER BOARD COMPANY, INC.
Date: By:
-------------------------- -----------------------------
Name: Quentin J. Kennedy
Title: Executive Vice President
<PAGE> 7
Federal Paper Board Company, Inc.
Exhibit Index
Exhibit No.
2.1 Agreement of Merger, dated as of January 20, 1994, by and
between Old Federal and the Registrant.
3.1 Articles of Incorporation of the Registrant.
3.2 Articles of Amendment of the Registrant.
3.3 By-Laws of Registrant.
4.1 Indenture, dated as of April 1, 1991 (the "Indenture") between
Old Federal and Chemical Bank (successor by merger to
Manufacturers Hanover Trust Company) (the "Trustee"), relating
to Old Federal's 10% Debentures due 2011, 8-1/8% Debentures
due 2002, and 8-7/8% Debentures due 2012 (incorporated herein
by reference to Exhibit 4 to Old Federal's Registration
Statement on Form S-3 (No. 33-48063)).
4.2 First Supplemental Indenture, dated as of April 20, 1994
between the Registrant and the Trustee to the Indenture,
relating to the succession of Registrant to Old Federal.
10.1 The employment contract of Mr. J.R. Kennedy (incorporated
herein by reference to Exhibit 10 to Old Federal's Annual
Report on Form 10-K for the 1987 fiscal year ended January 2,
1988) and Amendments No. 1 and No. 2 thereto (incorporated
herein by reference to Exhibit 10 to Old Federal's Annual
Report on Form 10-K for the 1991 fiscal year ended December
28, 1991).
10.2 The employment contract of Mr. Q.J. Kennedy (incorporated
herein by reference to Exhibit 10 to Old Federal's Annual
Report on Form 10-K for the 1987 fiscal year ended January 2,
1988) and Amendments No. 1 and No. 2 thereto (incorporated
herein by reference to Exhibit 10.1 to Old Federal's Annual
Report on Form 10-K for the 1991 fiscal year ended December
28, 1991).
10.3 The employment contract of Mr. R.D. Baldwin (incorporated
herein by reference to Exhibit 10.2 to Old Federal's Annual
Report on Form 10-K for the 1991 fiscal year ended December
28, 1991).
10.4 The employment contract of Mr. W.M. Massey (incorporated
herein by reference to Exhibit 10.2 to Old Federal's Annual
Report on Form 10-K for the 1990 fiscal year ended December
29, 1990).
10.5 Old Federal's 1992 Key Employees Stock Option Plan
(incorporated herein by reference to Exhibit 28 to Old
Federal's Registration Statement on Form S-8 (No. 33-48654)).
10.6 Old Federal's 1989 Key Employees Stock Option Plan
(incorporated herein by reference to Exhibit 28 to Old
Federal's Registration Statement on Form S-8 (No. 33-34440)).
<PAGE> 8
Exhibit No.
10.7 Old Federal's 1991 Key Employees Long Term Compensation Plan,
as amended, dated June 18, 1991, (incorporated herein by
reference to Exhibit 10.7 to Old Federal's Annual Report on
Form 10-K for the 1992 fiscal year ended on January 2, 1993
(the "1992 10-K")).
10.8 Old Federal's Supplemental Executive Retirement Plan dated
April 18, 1991 (incorporated herein by reference to Exhibit
10.8 to Old Federal's 1992 10-K).
10.9 Old Federal's 1988 Plan for the Compensation of Directors, as
amended, dated June 18, 1991 (incorporated herein by reference
to Exhibit 10.9 to Old Federal's 1992 10-K).
10.10 Old Federal's 1992 Stock Option Plan for Non-Employee
Directors (incorporated herein by reference to Exhibit 10.10
to Old Federal's 1992 10-K).
10.11 Old Federal's Retirement Plan for Outside Directors dated
September 20, 1988 (incorporated herein by reference to
Exhibit 10.11 of Old Federal's 1992 10-K).
10.12 Old Federal's 1992 Key Employees Long Term Compensation Plan
(incorporated herein by reference to Exhibit 10 to Old
Federal's Quarterly Report on Form 10-Q for the quarter ended
March 26, 1994).
11 Statement re computation of per share earnings (incorporated
herein by reference to Exhibit 11 to Old Federal's Annual
Report on Form 10-K for the 1993 fiscal year ended on January
1, 1994 (the "1993 10-K")).
21 Subsidiaries of the Registrant (incorporated herein by
reference to Exhibit 21 to Old Federal's 1993 10-K).
99 Old Federal's Proxy Statement, dated October 8, 1993, for Old
Federal's special meeting of shareholders held on November 16,
1993 (incorporated herein by reference).
<PAGE> 1
EXHIBIT 2.1
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER, ("the Agreement"), dated as of January
20, 1994 is entered into between Federal Paper Board Company, Inc., a New York
corporation ("Federal"), and Fedco, Inc., a wholly owned subsidiary of
Federal, organized under the laws of the State of North Carolina ("Fedco").
Federal and Fedco are hereinafter sometimes collectively referred to as the
"Constituent Corporations."
WITNESSETH:
WHEREAS, Federal is a corporation duly organized and existing under
the laws of the State of New York;
WHEREAS, Fedco is a corporation duly organized and existing under
the laws of the State of North Carolina;
WHEREAS, on the date of this Agreement, Federal has authority to
issue the shares of capital stock listed below (the "Capital Stock"), subject
to the exercise of any outstanding options to purchase additional shares of
Capital Stock and the issuance or purchase in the open market of any shares of
Capital Stock by Federal.
Authorized Issued and Outstanding
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240,000,000 shares Common 42,038,734
Stock ($5.00 Par Value)
1,900,000 $1.20 Convertible 58,323
Preferred Stock
($1.00 Par Value)
10,000,000 Class A Preferred* 2,274,410
Stock
*$2.875 Cumulative convertible Preferred Stock ($1.00 Par Value)
WHEREAS, on the date of this Agreement, Fedco has authority to
issue the same amount of shares of Capital Stock as Federal except that the Par
Value of the Common Stock of Fedco is $1.00 per share ("Fedco Capital Stock").
Except for one hundred (100) shares of the Common Stock of Fedco issued and
outstanding and owned by Federal no other shares of Fedco Capital Stock is
issued or outstanding;
WHEREAS, Federal as the sole stockholder of Fedco, desires to
effect a merger of Federal with and into Fedco pursuant to the provisions of
the Business Corporation Law of New York ("BCL") and the Business Corporation
Act of North Carolina ("BCA");
WHEREAS, the respective Boards of Directors of Federal and Fedco
have determined that it is advisable and in the best interests of each of such
corporations that Federal merge with
<PAGE> 2
and into Fedco upon the terms and subject to the conditions set forth in this
Agreement for the purpose of effecting a change of the state of incorporation
of Federal from New York to North Carolina;
WHEREAS, the respective Boards of Directors of Federal and Fedco,
by resolutions duly adopted, have approved this Agreement;
WHEREAS, Federal has approved this Agreement as the sole
stockholder of Fedco; and
WHEREAS, the Board of Directors of Federal has directed that this
Agreement be submitted to the shareholders of Federal at a Special Meeting of
Shareholders for approval.
NOW THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Federal and Fedco hereby agree that Federal shall
be merged with and into Fedco and that the terms and conditions of the Merger,
the mode of carrying the Merger into effect, the manner of converting the
shares of the Constituent Corporations and other provisions relating thereto
shall be hereinafter set forth.
ARTICLE I
THE MERGER
1.01 Surviving Corporation. Subject to the terms and provisions
of the Agreement, at the Effective Time (as defined hereinbelow) Federal shall
be merged with and into Fedco (the "Merger"), and Fedco shall be the surviving
corporation (hereinafter sometimes referred to as the "Surviving Corporation")
of the Merger and the Surviving Corporation shall continue its corporate
existence under the laws of North Carolina. At the Effective Time, the
separate corporate existence of Federal shall cease and, in connection with the
Merger, the name of the Surviving Corporation shall be changed to "Federal
Paper Board Company, Inc." The Merger shall become effective upon the date and
time of filing of an appropriate certificate of merger, providing for the
Merger, with the Secretary of State of New York and an appropriate certificate
of merger, providing for the Merger, with the Secretary of State of North
Carolina, whichever later occurs (the "Effective Time").
1.02 Governing Documents. The Articles of Incorporation of Fed-
co, as in effect immediately prior to the Effective Time, shall be the Articles
of Incorporation of the Surviving Corporation without change or amendment until
thereafter amended in accordance with the provisions thereof and the applicable
BCA; and the Bylaws of Fedco, as in effect immediately prior to the Effective
Time, shall be the Bylaws of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof,
the Articles of Incorporation of the Surviving Corporation and the applicable
BCA.
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<PAGE> 3
1.03 Directors and Officers. Directors and officers of Fedco, in
office immediately prior to the Effective Time, shall be the directors and
officers, respectively, of the Surviving Corporation until their successors are
duly elected and qualified, or their prior resignation, removal or death.
1.04 Effects of the Merger. At the Effective Time, the Merger
shall have the effects provided for herein and pursuant to the BCL and BCA.
Specifically, and not by way of limitation, at the Effective Time the separate
corporate existence of Federal shall cease, and Fedco possess all the rights,
privileges, power and franchises of a public and private nature, and shall be
subject to all the restrictions, disabilities and duties, of Federal; and all
and singular of the rights, privileges, power and franchises of Federal and all
property, real, personal and mixed, and all debts due to Federal on whatever
account, as well for share subscriptions and all other things in action
belonging to Federal, shall be vested in the Surviving Corporation; and all
property rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectually the property of the Surviving
Corporation as they were of Federal, and the title to any real estate vested by
deed or otherwise in Federal shall not revert or be in any way impaired by
reason of the Merger, and all rights of creditors and all liens upon any
property of Federal shall be preserved unimpaired, and all debts, liabilities
and duties of Federal shall thenceforth attach to the Surviving Corporation and
may be enforced against it to the same extent as if such debts, liabilities and
duties had been incurred or contracted by it. All corporate acts, plans,
policies, agreements, arrangements, approvals and authorizations of Federal,
its shareholders, Board of Directors and committees thereof, officers and
agents which were valid and effective immediately prior to the Effective Time,
shall be taken for all purposes as the acts, plans, policies, agreements,
arrangements, approvals and authorizations of the Surviving Corporation and
shall be as effective and binding thereon as the same were with respect to
Federal. The employees and agents of Federal shall become the employees and
agents of the Surviving Corporation and continue to be entitled to the same
rights and benefits which they enjoyed as employees and agents of Federal. The
requirements of any plans or agreements of Federal involving the issuance or
purchase by Federal of certain shares of its capital stock shall be satisfied
by the issuance or purchase of a like number of shares of the capital stock of
the Surviving Corporation.
1.05 Further Assurances. From time to time, as and when required
by the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of Federal such deeds and other instruments,
and there shall be taken or caused to be taken by it all such further and other
action, as shall be appropriate, advisable or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers,
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<PAGE> 4
franchises and authority of Federal, and otherwise to carry out the purpose of
this Agreement, and the officers and directors of the Surviving Corporation are
fully authorized in the name and on behalf of Federal or otherwise, to take any
and all such action and to execute and deliver any and all such deeds and other
instruments.
ARTICLE II
MANNERS, BASIS AND EFFECT OF CONVERTING SHARES
2.01 Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof:
(a) Each share of Federal Capital Stock issued and outstanding
immediately prior to the Effective Time shall be changed and
converted into and shall be one fully paid and nonassessable share
of an identical share of Fedco Capital Stock and shall have all the
same conversion rights and preferences as the case may be of the
particular issue of Federal Capital Stock; and
(b) Each share of Fedco Common Stock issued and outstanding
immediately prior to the Effective Time, and held in the name of
Federal, shall be cancelled and retired and shall resume the status
of authorized but unissued shares of Fedco Common Stock, and no
shares of Fedco Common Stock or other securities of Fedco shall be
issued in respect thereof.
2.02 Condition to Merger. The Merger shall have received the
requisite approval at a Special Meeting of the holders of at least two-thirds
of Common Stock and $1.20 Convertible Preferred Stock, of Federal, voting
together as one class, outstanding and entitled to vote on the record date
established by the Board of Directors for this purpose and in accordance with
the BCL.
2.03 Effect of Conversion. At the Effective Time, each share
certificate which, immediately prior to the Effective Time, represented
outstanding shares of Federal Capital Stock shall be automatically converted
into shares of Fedco Capital Stock. The registered owner, as appears on the
books and records of Federal or its transfer agents, of each such outstanding
share certificate immediately prior to the Effective Time shall have and be
entitled to exercise any voting and other rights with respect to, and to
receive any dividends and other distributions upon, the share of Fedco Capital
Stock.
2.04 Options. Each option to purchase, or other award of,
shares of Federal Common Stock granted under any Stock Option Plan of Federal
(the "Plans") which is outstanding immediately prior to the Effective Time,
shall, by virtue of the Merger and
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<PAGE> 5
without any action on the part of the holder thereof, be converted into and
become an option to purchase, or award of, the same number of shares of Fedco
Common Stock at the same option price per share, and upon the same terms and
subject to the same conditions as set forth in the Plans as in effect at the
Effective Time. The same number of shares of Fedco Common Stock shall be
reserved for the purpose of said Plans as is equal to the number of shares of
Federal Common Stock so reserved as of the Effective Time. As of the Effective
Time, Fedco hereby assumes the Plans and all obligations of Federal under the
Plans including the outstanding options or awards or portions thereof granted
pursuant to the Plans.
2.05 Other Employee Benefit Plans. As of the Effective Time,
Fedco hereby assumes all obligations under any and all employee benefit plans
of Federal in effect as of the Effective Time or with respect to which employee
rights or accrued benefits are outstanding as of the Effective Time.
ARTICLE III
AMENDMENT, TERMINATION, MISCELLANEOUS
3.01 Amendment. Subject to applicable law, this Agreement may
be amended, modified or supplemented by written agreement of the Constituent
Corporations at any time prior to the Effective Time with respect to any of the
terms contained herein.
3.02 Abandonment. At any time prior to the Effective Time, this
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of Federal, notwithstanding approval of this Agreement by the
shareholder of Fedco or by the shareholders of Federal, or both, if, in the
opinion of such Board of Directors, circumstances arise which, in the opinion
of such Board of Directors, make the Merger for any reason inadvisable.
3.03 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original of the same
agreement.
IN WITNESS WHEREOF, Federal and Fedco have caused this Agreement to
be signed by their respective duly authorized officers as of the date first
above written.
FEDERAL PAPER BOARD COMPANY, INC.
ATTEST: a New York corporation
By: /s/ John T. Flynn, Jr. By: /s/ Q. J. Kennedy
-------------------------- -----------------------------
Assistant Secretary Executive Vice President
FEDCO, INC.
ATTEST: a North Carolina corporation
By: /s/ John T. Flynn, Jr. By: /s/ Q. J. Kennedy
-------------------------- -----------------------------
Assistant Secretary Executive Vice President
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<PAGE> 1
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
FEDCO, INC.
PURSUANT TO SECTION 55-2-02 OF THE GENERAL
STATUTES OF NORTH CAROLINA
-------------------------
The undersigned hereby submits these Articles of Incorporation for the
purpose of forming a business corporation under the laws of the State of North
Carolina.
FIRST: The name of the corporation is FEDCO, Inc. (the "Corporation").
SECOND: The purpose for which the Corporation is formed is to do any
and all things and exercise any and all powers which may now or hereinafter
be lawful for the Corporation to do or exercise under and in pursuance of the
North Carolina Business Corporation Act, or of any other law that may be now
or hereafter applicable to the Corporation.
The Corporation may do all and everything necessary, suitable or proper
for the accomplishment of any of the lawful purposes or objects hereinbefore
enumerated, either alone or in association with other corporations, firms or
individuals, to the same extent and as fully as individuals might or could do
as principals, agents, contractors or otherwise.
Nothing in these Articles contained, however, shall authorize the
Corporation to carry on any business or exercise any powers in any state or
country which a similar corporation organized under the laws of such state or
country could not carry on or exercise.
THIRD: The total number of shares which the Corporation is authorized
to issue is two hundred fifty-one million nine hundred thousand (251,900,000)
divided into classes and series as follows:
Number Par Value
Class of Shares Per Share
----- --------- ---------
$1.20 Convertible Preferred
Stock 1,900,000 $1.00
Class A Preferred Stock 10,000,000 $1.00
Common Stock 240,000,000 $5.00
<PAGE> 2
The preferences, limitations and relative rights of each class of shares are as
follows:
CLASS A PREFERRED STOCK
A. Board Authority:
The Class A Preferred Stock, which shall be junior to the $1.20 Convertible
Preferred Stock, may be issued from time to time, as herein provided, in one
or more series. The designations, relative rights, preferences and limitations
of the Class A Preferred Stock, and particularly of the shares of each series
thereof, may, to the extent permitted by law, be similar to or differ from
those of any other series. The Board of Directors of the Corporation is hereby
expressly granted authority, subject to the provisions of this Article Third,
to fix from time to time before issuance thereof the number of shares in each
series of such class and all designations, relative rights, preferences and
limitations of the shares in each such series, including, but without limiting
the generality of the foregoing, the following:
(i) The number of shares to constitute such series and the
distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether or
not dividends on the shares shall be cumulative, and the date or dates, if
any, from which dividends thereon shall be cumulative;
(iii) Whether or not the shares of such series shall be
redeemable, and if redeemable, the date or dates upon or after which they
shall be redeemable, the amount per share payable thereon in the case of
the redemption thereof, which amount may vary at different redemption
dates or otherwise as permitted by law;
(iv) Whether or not the shares of such series shall be subject to
the operation of a retirement or sinking fund to be applied to the
purchase or redemption of such shares for retirement and, if such
retirement or sinking fund be established, the amount thereof, and the
terms and provisions relative to the operation thereof;
(v) The right, if any, of holders of shares of such series to
convert the same into or exchange the same for Common Stock, and the terms
and conditions of such conversion or exchange, as well as provisions for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(vi) The amount per share payable on the shares of such series
upon the voluntary and involuntary liquidation, dissolution or winding up
of the Corporation;
2
<PAGE> 3
(vii) Whether the holders of shares of such series shall have
voting power, full or limited, in addition to the voting powers provided
by law, and in case additional voting powers are accorded to fix the
extent thereof; and
(viii) Generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and privileges
of such series, provided, however, that no such rights, privileges,
qualifications, limitations or restrictions shall be in conflict with
these Articles or with the resolution or resolutions adopted by the Board
of Directors providing for the issue of any series of which there are
shares then outstanding.
All shares of Class A Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series issued at
different times may differ as to dates, if any, from which dividends thereon
may accumulate. All shares of Class A Preferred Stock of all series shall be
of equal rank and shall be identical in all respects, except that to the extent
not otherwise limited in this Article Third any series may differ from any
other series with respect to any one or more of the designations, relative
rights, preferences and limitations described or referred to in subparagraphs
(i) to (viii) inclusive above.
B. Dividends:
The holders of shares of the Class A Preferred Stock of each series
shall be entitled to receive, when and as declared by the Board of Directors,
out of funds legally available for the payment of dividends, after dividends
have been declared and paid, or set apart for payment on the $1.20 Convertible
Preferred Stock, dividends at the rates fixed by the Board of Directors for
such series, and no more, before any dividends, other than dividends payable in
Common Stock, shall be declared and paid, or set apart for payment, on the
Common Stock with respect to the same dividend period.
All shares of Class A Preferred Stock of all series shall be of equal
rank, preference and priority as to dividends irrespective of whether or not
the rates of dividends to which the same shall be entitled shall be the same
and when the stated dividends are not paid in full, the shares of all series of
the Class A Preferred Stock shall share ratably in the payment thereof in
accordance with the sums which would be payable on such shares if all dividends
were paid in full, provided, however, that any two (2) or more series of the
Class A Preferred Stock may differ from each other as to the existence and
extent of the right to cumulative dividends, as aforesaid.
C. Liquidation:
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, each series of Class A
Preferred Stock shall have preference and priority over the Common Stock,
but not over the $1.20 Convertible Preferred Stock, for payment of the amount
to which each outstanding series of Class A Preferred Stock shall be
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<PAGE> 4
entitled in accordance with the provisions thereof and each holder of Class A
Preferred Stock shall be entitled to be paid in full such amounts, or have a
sum sufficient for the payment in full set aside, before any payments shall be
made to the holders of the Common Stock. If, upon liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation or proceeds
thereof, distributable among the holders of the shares of all series of the
Class A Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective
amounts which would be payable if all amounts payable thereon were paid in
full. After the payment to the holders of Class A Preferred Stock of all such
amounts to which they are entitled, as above provided, the remaining assets and
funds of the Corporation shall be divided and paid to the holders of the Common
Stock. For the purposes of this paragraph, the sale of all the property of the
Corporation to, or the merger or consolidation of the Corporation into or with,
any other corporation shall not be deemed to be a distribution of assets or a
dissolution, liquidation or winding up or proceeding resulting in a
distribution of all its assets to its stockholders.
D. Redemption:
In the event that the Class A Preferred Stock of any series shall be made
redeemable as provided in clause (iii) of subdivision A above, the Corporation,
at the option of the Board of Directors may redeem at any time or times, and
from time to time, all or any part of any one or more series of Class A
Preferred Stock outstanding, upon notice and terms as may be specifically
provided in the certificate filed pursuant to law with respect to the series,
by paying for each share the then applicable redemption price fixed by the
Board of Directors, plus an amount equal to accrued and unpaid dividends to the
date fixed for redemption.
E. $2.875 Cumulative Convertible Preferred Stock - Class A Second Series:
1.1 Designation and Amount. The shares of such series shall be
designated "$2.875 Cumulative Convertible Preferred Stock, Class A, Second
Series" (hereinafter, the "Second Series Preferred Stock"), and the number
of authorized shares constituting such series shall be two million eight
hundred thousand (2,800,000).
1.2 Dividends. The dividends on such shares shall be $2.875 per
share per annum. The holders of shares of the Second Series Preferred
Stock shall be entitled to receive, out of the assets of the Corporation
legally available therefor and as and when declared by the Board of
Directors in its sole discretion, cash dividends at the rate set forth
above, payable quarterly on the fifteenth (15th) day of the months of
March, June, September and December in each year. Such dividends shall be
cumulative from the date of original issue of the Second Series Preferred
Stock and will be payable to the holders of record as they appear on the
stock books of the Corporation on such record dates, not more than fifty
(50) days nor less than ten (10) days preceding the payment dates, as
shall be fixed by the Board of Directors.
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Dividends payable for any partial dividend period shall be computed
on the basis of a three hundred sixty (360) day year of twelve (12) thirty
(30) day months.
Unless full cumulative dividends on the Second Series Preferred Stock
have been paid,
(i) no Common Stock, $5.00 par value (the "Common Stock"), of
the Corporation or any other stock of the Corporation ranking junior
to the Second Series Preferred Stock as to dividends may be redeemed,
purchased or otherwise acquired for any consideration (or any payment
made to or available for a sinking fund for the redemption of any
shares of such stock) by the Corporation (except by conversion into
or exchange for, or out of the net cash proceeds from the concurrent
sale of, stock of the Corporation ranking junior to the Second Series
Preferred Stock as to dividends); and
(ii) no dividends (other than in Common Stock or any other
stock ranking junior to the Second Series Preferred Stock as to
dividends) may be paid or declared and set aside for payment or other
distribution made upon the Common Stock or on any other stock of the
Corporation ranking junior to the Preferred Stock as to dividends.
1.3 Conversion.
(a) The holders of shares of Second Series Preferred Stock shall
have the right, at their option, to convert all or any part of such
shares into shares of Common Stock of the Corporation at any time on
and subject to the following terms and conditions:
(i) The shares of Second Series Preferred Stock shall be
convertible at the office of the transfer agent for such series,
and at such other place or places, if any, as the Board of
Directors may designate, into fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100th
of a share) of Common Stock. The number of shares of Common
Stock issued upon conversion of each share of the Second Series
Preferred Stock shall be equal to $50.00 divided by the
Conversion Price (as hereinafter defined) then in effect. The
price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be
$27.50 provided, however, that such Conversion Price shall be
subject to adjustment from time to time in certain instances as
hereinafter provided. No payment or adjustment shall be made in
respect of dividends on Common Stock or Second Series Preferred
Stock upon conversion of shares of Second Series Preferred
Stock, except as described in Section 1.3(g) of this subdivision
E. If the Corporation
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calls for redemption any shares of Second Series Preferred
Stock, such right of conversion shall cease and terminate, as to
the shares designated for redemption, at the close of business
on the redemption date, unless the Corporation defaults in the
payment of the redemption price. No fractional shares of Common
Stock will be issued, and a cash payment will be paid in lieu of
any fractional shares in an amount equal to the same fraction of
the closing price of the Common Stock (determined as provided in
Section 1.3(a)(iii)(D) of this subdivision E) on the business
day which next precedes the day of conversion.
(ii) Before any holder of shares of Second Series Preferred
Stock shall be entitled to convert the same into Common Stock,
such holder shall surrender the certificate or certificates
therefor, duly endorsed to the Corporation or in blank, at the
office of the transfer agent for such series or at such other
place or places, if any, as the Board of Directors shall have
designated, and shall give written notice to the Corporation at
said office or place that he elects to convert the same and
shall state in writing therein the name or names (with
addresses) in which he wishes the certificate or certificates
for Common Stock to be issued. The Corporation will, as soon as
practicable thereafter, issue and deliver at said office or
place to such holder of shares of Second Series Preferred Stock,
or to his nominee or nominees, certificates for the number of
full shares of Common Stock to which he shall be entitled as
aforesaid, together with cash in lieu of any fraction of a
share. Shares of Second Series Preferred Stock shall be deemed
to have been converted as of the close of business on the date
of the surrender of such shares for conversion as provided
above, and the person or persons entitled to receive the Common
Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Stock as
of the close of business on such date.
(iii) The Conversion Price in effect at any time shall
be subject to adjustment as follows:
(A) In case the Corporation shall
(1) declare a dividend on its Common Stock in
shares of its capital stock;
(2) subdivide its outstanding shares of Common
Stock,
(3) combine its outstanding shares of Common
Stock into a smaller number of shares; or
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(4) issue by reclassification of its Common
Stock (including any such reclassification in
connection with a consolidation or merger in which the
Corporation is the continuing corporation) any shares
of its capital stock, the Conversion Price in effect
at the time of the record date for such dividend or of
the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so
that the holder of any shares of Second Series
Preferred Stock surrendered for conversion after such
time shall be entitled to receive the kind and amount
of shares which such holder would have owned or have
been entitled to receive had such share of Second
Series Preferred Stock been converted immediately
prior to such time.
Such adjustment shall be made successively whenever any
event listed above shall occur. If, as a result of an
adjustment made pursuant to this paragraph (A), the holder
of any share of Second Series Preferred Stock thereafter
surrendered for conversion shall become entitled to receive
shares of two (2) or more classes of capital stock or shares
of Common Stock and other capital stock of the Corporation,
the Board of Directors (whose determination shall be
conclusive and shall be described in a Board resolution
filed with the transfer agent for the Second Series
Preferred Stock by the Corporation as soon as practicable)
shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes of capital
stock or shares of Common Stock and other capital stock.
(B) In case the Corporation shall fix a record date
for the issuance of rights or warrants to all holders of its
Common Stock entitling them (for a period expiring within
forty-five (45) days after such record date) to subscribe
for or purchase shares of Common Stock (or securities
convertible into shares of its Common Stock) at a price per
share (or having a conversion price per share) less than the
Current Market Price (as defined in paragraph (D) below), on
such record date the Conversion Price shall be adjusted so
that the Conversion Price after such record date shall equal
the price determined by dividing the Conversion Price in
effect immediately prior to the close of business on such
record date by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the
close of business on such record date plus the
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number of shares of Common Stock so offered for subscription
or purchase (or into which the convertible securities so
offered are initially convertible) and of which the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on such record date
plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or
purchase (or the aggregate initial conversion price of the
convertible securities so offered) would purchase at such
Current Market Price, such adjustment to become effective
immediately prior to the opening of business on the day
following such record date. Such adjustment shall be made
successively whenever such a record date is fixed; and, in
the event that such rights or warrants are not so issued or
to the extent such rights or warrants are not so exercised
prior to the expiration therefor, the Conversion Price
shall again be adjusted to be the Conversion Price which
would then be in effect if such record date had not been
fixed.
(C) In case the Corporation shall fix a record date
for the making of a distribution to all holders of its
Common Stock (including any such distribution made in
connection with a consolidation or merger in which the
Corporation is the continuing corporation) of evidences of
indebtedness or assets (excluding cash dividends or other
distributions lawfully paid and dividends payable in stock
for which adjustment is made pursuant to paragraph (A)
above) or subscription rights or warrants (excluding those
referred to in paragraph (B) above), the Conversion Price
shall be adjusted so that after such record date the
Conversion Price shall equal the price determined by
dividing the Conversion Price in effect immediately prior to
the close of business on such record date by a fraction of
which the numerator shall be the Current Market Price (as
defined in paragraph (D) below) on such record date and of
which the denominator shall be such Current Market Price,
less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and
shall be described in a Board resolution filed with the
transfer agent for the Second Series Preferred Stock by the
Corporation as soon as practicable) of the portion of the
assets or evidences of indebtedness so distributed or of
such subscription rights and warrants applicable to one
share of Common Stock, such adjustment to become effective
immediately prior to the opening of business on the day
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<PAGE> 9
following such record date. Such adjustment shall be made
successively whenever such a record date is fixed; and in
the event that such distribution is not so made, the
Conversion Price shall again be adjusted to the Conversion
Price which would then be in effect if such record date had
not been fixed.
(D) For the purpose of any computation under
paragraphs (B) and (C) above, the "Current Market Price" on
any date shall be deemed to be the average of the daily
closing prices per share of Common Stock for any thirty (30)
consecutive business days selected by the Corporation
commencing not more than forty-five (45) business days
before such date. The closing price for each day shall be,
(1) if the Common Stock is then listed or
admitted to trading on the New York Stock Exchange or
other national securities exchange, the last reported
sale price, regular way, for the Common Stock as
reported in the consolidated transaction or other
reporting system for securities listed or traded on
the New York Stock Exchange or, if the Common Stock is
not so listed or admitted on such exchange, then on
the exchange designated by the Board of Directors as
the principal exchange on which the Common Stock is so
listed or admitted, or
(2) if the Common Stock is not so listed or
admitted for trading on any national securities
exchange, the last reported closing bid price reported
by the National Association of Securities Dealers
Automated Quotation System, or
(3) if the Common Stock is not so reported, the
average of the Closing bid and asked prices as
furnished by any member of the National Association of
Securities Dealers, Inc. selected from time to time by
the Corporation for that purpose.
(E) All calculations under this Section 1.3(a) shall
be made to the nearest cent or to the nearest one-hundredth
(1/100) of a share, as the case may be.
(F) No adjustment in the Conversion Price shall be
required unless such adjustment would require a change of
at
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<PAGE> 10
least one percent (1%) in such price; provided, however,
that any adjustments which by reason of this paragraph (F)
are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
(G) Anything in this Section 1.3(a) to the contrary
notwithstanding, the Corporation shall be entitled to make
such reductions in the Conversion Price, in addition to
those required by this Section 1.3(a), as it, in its
discretion, shall determine to be advisable in order that
any stock dividend, subdivision of shares, distribution of
rights to purchase stock or securities, or distribution of
securities convertible into or exchangeable for stock
hereafter made by the Corporation to its stockholders shall
not be taxable to the recipient for United States purposes,
but not below the par value of the Common Stock.
(H) No adjustment in the Conversion Price shall be
required for a change in the par value of the Common Stock.
(I) In the event that at any time as a result of an
adjustment made pursuant to Section 1.3(a)(iii)(A) of this
subdivision E, the holder of any share of Second Series
Preferred Stock thereafter surrendered for conversion shall
become entitled to receive any shares of the Corporation
other than shares of Common Stock, thereafter the Conversion
Price allocable to such other shares so receivable upon
conversion of any share of Second Series Preferred Stock
shall be subject to adjustment from to time in a manner and
on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this
Section 1.3 as determined by the Board of Directors (whose
determination shall be conclusive and shall be described in
a Board resolution filed with the transfer agent by the
Corporation as soon as practicable).
(b) In case of any consolidation or merger to which the
Corporation is a party (other than a consolidation or merger in which
the Corporation is the continuing corporation), or in case of any
sale or conveyance to another corporation of the property of the
Corporation as an entirety or substantially as an entirety, or in
case of any statutory exchange of securities with another
corporation, there will be no adjustment of the Conversion Price, but
the holder of each share of Second Series Preferred Stock shall have
the right to convert such share of Second Series Preferred Stock into
the kind and amount of shares of stock and other securities and
property which such holder would have been entitled to receive upon
such consolidation, merger, sale,
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conveyance or statutory exchange if such holder had held the Common
Stock issuable upon the conversion of such share of Second Series
Preferred Stock immediately prior to such consolidation, merger,
sale, conveyance or statutory exchange, assuming such holder of
Common Stock failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash or other property receivable
upon such consolidation, merger, sale, conveyance or statutory
exchange (provided that if the kind or amount of securities, cash or
other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance is not the same for each non-electing
share, then the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange, sale
or conveyance for each non-electing share shall be deemed to be the
kind and amount so receivable per share by a plurality of the
non-electing shares). Thereafter, the holders of the Second Series
Preferred Stock shall be entitled to appropriate adjustments with
respect to their conversion rights to the end that the provisions set
forth in this Section 1.3 shall correspondingly be made applicable,
as nearly as may reasonably be, in relation to any shares of stock or
other securities or property thereafter deliverable on the conversion
of the Second Series Preferred Stock. Any such adjustment shall be
approved by the Board of Directors (whose determination shall be
conclusive and shall be described in a Board resolution filed with
the transfer agent for the Second Series Preferred Stock by the
Corporation as soon as practicable).
(c) Whenever the Conversion Price is adjusted as herein provided:
(i) the Corporation shall promptly file with the transfer
agent for the Second Series Preferred Stock a certificate of the
Treasurer of the Corporation setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon
which such adjustment is based; and
(ii) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be mailed, first class postage prepaid, by the
Corporation to the holders of record of outstanding shares of
Second Series Preferred Stock.
(d) In case:
(i) the Corporation shall authorize the distribution to
all holders of its Common Stock of evidences of its indebtedness
or assets (other than cash dividends or other distributions
lawfully paid and the dividends payable in stock for which
adjustment is made pursuant to Section 1.3(a)(iii)(A) of this
subdivision E); or
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(ii) the Corporation shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe
for or purchase any shares of its capital stock of any class or
of any other rights; or
(iii) of any reclassification of the Common Stock of
the Corporation (other than a subdivision or combination of its
outstanding shares of Common Stock and other than a change in
the par value of the 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 conveyance to another corporation of the property
of the Corporation as an entirety or substantially as an
entirety, or in case of any statutory exchange of securities
with another corporation; or
(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in each case, the Corporation shall cause to be filed with
the transfer agent for the Second Series Preferred Stock, and
shall cause to be mailed, first class postage prepaid, to the
holders of record of the outstanding shares of Second Series
Preferred Stock, at least ten (10) days prior to the applicable
record date hereinafter specified, a notice stating (x) the date
on which a record is to be taken for the purpose of such
distribution, rights or warrants, 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 distribution, rights or warrants
are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, conveyance,
statutory exchange, 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 Common Stock for securities or other
property deliverable upon such reclassification, consolidation,
merger, sale, conveyance, statutory exchange, dissolution,
liquidation or winding-up.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in
clause (i), (ii), (iii) or (iv) of this Section 1.3(d).
(e) The Corporation shall at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of its Common Stock, and its reissued
shares of Common Stock held in its treasury solely for the purpose of
effecting the conversion of the shares of Second Series Preferred
Stock, the full number of shares of Common Stock
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then issuable upon the conversion of all outstanding shares of Second
Series Preferred Stock. For the purpose of this Section 1.3(e), the
full number of shares of Common Stock issuable upon the conversion of
all outstanding shares of Second Series Preferred Stock shall be
computed as if at the time of computation of such number of shares of
Common Stock all outstanding shares of Second Series Preferred Stock
were held by a single holder. The Corporation shall from time to
time, in accordance with the laws of the State of North Carolina,
increase the authorized amount of its Common Stock if at any time the
aggregate of the authorized amount of its Common Stock remaining
unissued and its issued shares of Common Stock held in its treasury
(other than any such shares reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of all
shares of Second Series Preferred Stock at the time outstanding. If
any shares of Common Stock required to be reserved for issuance upon
conversion of shares of Second Series Preferred Stock hereunder
require registration with or approval of any governmental authority
under any federal or state law before such shares may be issued upon
such conversion, the Corporation will in good faith and as
expeditiously as possible endeavor to cause such shares to be so
registered or approved.
(f) The Corporation will pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the
issue or delivery of shares of Common Stock on conversion of shares
of Second Series Preferred Stock pursuant hereto. The Corporation
shall not, however, be required to pay any such tax which may be
payable in respect of any transfer involved in the issue or transfer
and delivery of shares of Common Stock in a name other than that in
which the shares of Second Series Preferred Stock so converted were
registered, and no such issue or delivery shall be made unless and
until the person requesting such issue has paid to the Corporation
the amount of any such tax or has established to the satisfaction of
the Corporation that such tax has been paid.
(g) Shares of Second Series Preferred Stock surrendered for
conversion during the period from the close of business on any record
date for the payment of dividends on Second Series Preferred Stock to
the opening of business on the corresponding dividend payment date
(except shares called for redemption during such period), must be
accompanied by payment of an amount equal to the dividend payable on
such shares on such dividend payment date. The registered holder of
such shares of Second Series Preferred Stock at the close of business
on a dividend payment record date shall be entitled to receive the
dividend payable on such shares (except shares called for redemption
on a redemption date between such record date and the dividend
payment date in which case the holder of the shares who presents such
shares for redemption will be entitled to accrued but unpaid
dividends) on the
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corresponding dividend payment date notwithstanding the conversion
thereof. A holder of Second Series Preferred Stock on a dividend
payment record date who (or whose transferee) converts shares of
Second Series Preferred Stock on a dividend payment date will receive
the dividend payable on such Second Series Preferred Stock by the
Corporation on such date, and the converting holder need not include
payment in the amount of such dividend upon surrender of shares of
Second Series Preferred Stock for conversion.
(h) Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value (if any) of
the shares of Common Stock deliverable upon conversion of the Second
Series Preferred Stock, the Corporation will take any corporate
action which may, in the opinion of its counsel, be necessary in
order that the Corporation may validly and legally issue fully paid
and non-assessable shares of Common Stock at such adjusted Conversion
Price.
1.4 Liquidation Rights. In the event of any liquidation,
dissolution or winding-up of the Corporation, whether voluntary or
involuntary, the holders of Second Series Preferred Stock shall be
entitled to receive, out of the assets of the Corporation available for
distribution to shareholders after liquidation of any shares of stock of
the Corporation ranking senior in right of payment upon liquidation to the
Second Series Preferred Stock, the sum of the then applicable redemption
price per share set forth in Section 1.5 below (in the case of a voluntary
liquidation) or $50.00 per share (in the case of an involuntary
liquidation) plus (in each case) accumulated and unpaid dividends.
1.5 Optional Redemption. The Second Series Preferred Stock may be
redeemed on at least thirty (30) and not more than sixty (60) days notice
at the option of the Corporation, as a whole or in part, at any time or
from time to time, at the following redemption prices, provided that the
Second Series Preferred Stock may not be redeemed in part if full
cumulative dividends on the Second Series Preferred Stock to the
redemption date have not been paid or declared and set aside for payment
unless such partial redemption is approved by the holders of sixty-six and
two-thirds percent (66-2/3%) of the shares of Second Series Preferred
Stock then outstanding.
If redeemed during the twelve (12) month period beginning March 15,
Year Price
---- -----
1993 . . . . . . . . . $51.1500
1994 . . . . . . . . . 50.8625
1995 . . . . . . . . . 50.5750
1996 . . . . . . . . . 50.2875
1997 and thereafter . . 50.00
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together in each case with accumulated and unpaid dividends to the date
fixed for redemption. On and after the redemption date, dividends cease
to accumulate on shares of the Second Series Preferred Stock called for
redemption and such shares of the Second Series Preferred Stock cease to
be convertible.
In case of the redemption of less than all of the outstanding shares
of Second Series Preferred Stock, the shares to be redeemed shall be
selected by lot or in a substantially equivalent manner as the Board of
Directors shall determine from among the outstanding shares of Second
Series Preferred Stock. Not less than thirty (30) nor more than sixty
(60) days' prior written notice shall be given by mail, postage prepaid,
to the holders of record of the Second Series Preferred Stock to be
redeemed, to be addressed to each such stockholder at his post office
address as shown by the records of the Corporation.
If such notice of redemption shall have been duly given, and if on or
before the redemption date specified in such notice the funds necessary
for such redemption shall have been set aside so as to be and continue to
be available therefor, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, from and after such redemption date, the shares so called
for redemption shall no longer be deemed outstanding, the dividends
thereon shall cease to accrue, and all rights with respect to shares so
called for redemption, including the rights, if any, to receive notices
and to vote, shall forthwith on such redemption date cease and terminate,
except only the right of the holders thereof to receive the amount payable
upon redemption thereof, without interest; provided, however, that if such
notice of redemption shall have been duly given, and if on or before the
redemption date specified in such notice, there shall have been deposited
with a bank or trust company in the Borough of Manhattan, City and State
of New York, having capital, surplus and undivided profits of at least
Twenty-Five Million Dollars ($25,000,000.00) in trust for the account of
the holders of the shares so called for redemption which shall not have
been surrendered for conversion, the funds necessary for such redemption,
then upon the making of such deposit in trust, the shares with respect to
which such deposit shall have been made shall no longer be deemed to be
outstanding, and all rights with respect to such shares, including the
rights, if any, to receive notices and to vote, shall forthwith cease and
terminate, except only the right of the holders thereof to receive, out of
the funds so deposited in trust, from and after the date of such deposit,
the amount payable upon the redemption thereof, without interest, or to
convert their shares, up to the close of business on the date fixed for
redemption, into Common Stock pursuant to Section 1.3 of this subdivision
E. Any funds so deposited which shall not be required for such redemption
because of the exercise of any right of conversion or exchange or
otherwise subsequent to the date of such deposit shall be returned to the
Corporation forthwith. Any interest accrued on any funds so deposited
shall belong to the Corporation and be paid to it from time to time. Any
other funds so set aside or
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deposited by the Corporation and unclaimed at the end of two (2) years
from the date fixed for such redemption shall be repaid to the
Corporation, upon its request, after which repayment the holders of such
shares so called for redemption shall look only to the Corporation for the
payment of the amount payable upon the redemption thereof. Subject to the
provisions hereof, the Board of Directors shall have authority to
prescribe the manner in which the Second Series Preferred Stock shall be
redeemed from time to time.
1.6 No Sinking Fund. The Second Series Preferred Stock shall not be
entitled to the benefits of any retirement or sinking fund.
1.7 Voting Rights. Except as indicated below and in accordance with
applicable law, the holders of shares of the Second Series Preferred Stock
have no voting rights. If the equivalent of six (6) quarterly dividends
payable on the Second Series Preferred Stock or on any preferred stock of
the Corporation ranking on a parity with the Second Series Preferred
Stock, as to which dividends are in arrears, the number of directors of
the Corporation will be increased by two (2) and the holders of all
outstanding shares of such stock, voting as a single class without regard
to series, will be entitled to elect two (2) additional directors until
all dividends in arrears on such stock have been paid or declared and set
apart for payment.
Without the consent of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the shares of all of the series of Class
A Preferred Stock then outstanding, voting separately as a class, the
Corporation shall not
(i) create any series of preferred stock ranking prior to
the Second Series Preferred Stock as to dividends or liquidation
rights, or securities convertible into stock ranking prior to the
Second Series Preferred Stock as to dividends or liquidation rights,
(ii) amend, alter or repeal any of the preferences, rights
or powers of the holders of the Class A Preferred Stock so as to
affect adversely such preferences, rights or powers, or
(iii) authorize any reclassification of the Class A
Preferred Stock.
In addition, the Corporation shall not, without the consent of
the holders of at least sixty-six and two-thirds percent (66-2/3%) of
the shares of the Second Series Preferred Stock then outstanding,
voting separately as a class, amend, alter or repeal any of the
preferences, rights or powers of the holders of the Second Series
Preferred Stock so as to affect adversely such preferences, rights or
powers on any basis different from any other series of Class A
Preferred Stock.
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$1.20 CONVERTIBLE PREFERRED STOCK
A. Dividends:
The dividend rate of the $1.20 Convertible Preferred Stock ("Convertible
Preferred Stock") shall be $1.20 per share per annum, and no more. Such
dividends shall be payable, quarterly, on the fifteenth (15th) day of March,
June, September and December in each year, in each case for the quarterly
dividend period ending on such date, to stockholders of record on the
respective record dates, not exceeding fifty (50) days preceding such
quarterly dividend payment dates, fixed for that purpose by the Board of
Directors. Such dividends shall accrue and become cumulative, whether or not
earned or declared, as to all shares of Convertible Preferred Stock from the
date on which such shares are issued, except that as to shares issued after
the Convertible Preferred Stock Initial Issue Date (as hereinafter defined),
dividends shall accrue and become cumulative from such date as shall make the
dividend rights per share of the shares being issued uniform with the dividend
rights per share of the shares of the Convertible Preferred Stock then
outstanding, excluding rights to dividends declared and directed to be paid to
shareholders of record as of a date preceding the date of issuance of the
shares being issued. As used herein, the term "Convertible Preferred Stock
Initial Issue Date" shall mean the first date upon which any share or shares
of Convertible Preferred Stock shall have been issued by the Corporation.
In no event, so long as any Convertible Preferred Stock shall remain
outstanding, shall any dividend whatsoever, other than a dividend payable in
shares of junior stock, be declared or paid upon, nor shall any distribution be
made upon, any junior stock, nor shall any shares of junior stock be purchased
or redeemed by the Corporation otherwise than in connection with a refunding of
junior stock through the issue of other junior stock, nor shall any moneys be
paid to or made available for a sinking fund for the purchase or redemption of
any junior stock, unless in each instance dividends on all outstanding shares
of the Convertible Preferred Stock for all past dividend periods shall have
been paid and the dividend on all outstanding shares of the Convertible
Preferred Stock for the then current quarterly dividend period shall have been
paid or declared and sufficient funds are available for the payment thereof.
Subject to the foregoing, dividends may be paid upon junior stock as and when
declared by the Board of Directors out of any funds of the Corporation legally
available therefor.
B. Redemption:
The Corporation, at the option of the Board of Directors, may redeem, in
whole, or from time to time in part, the Convertible Preferred Stock, upon
notice given as hereinafter provided, by paying for each share Twenty Dollars
($20.00) in cash, plus an amount equal to dividends accrued thereon to the date
fixed for redemption.
In case of the redemption of less than all of the outstanding shares of
Convertible Preferred Stock, the shares to be redeemed shall be selected by
lot or pro-rata in such
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<PAGE> 18
manner as the Board of Directors shall determine from among the outstanding
shares of Convertible Preferred Stock. Not less than thirty (30) nor more
than sixty (60) days' prior written notice shall be given by mail, postage
prepaid, to the holders of record of the Convertible Preferred Stock to be
redeemed, such notice to contain a statement of or reference to the conversion
right set forth in the paragraph entitled "Conversion" and to be addressed to
each such stockholder at his post office address as shown by the records of the
Corporation.
If such notice of redemption shall have been duly given, and if on or
before the redemption date specified in such notice the funds necessary for
such redemption shall have been set aside so as to be and continue to be
available therefor, then, notwithstanding that any certificate for shares so
called for redemption shall not have been surrendered for cancellation, from
and after such redemption date, the shares so called for redemption shall no
longer be deemed outstanding, the dividends thereon shall cease to accrue, and
all rights with respect to shares so called for redemption, including the
rights, if any, to receive notices and to vote, shall forthwith on such
redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable upon redemption thereof, without
interest; provided, however, that if such notice of redemption shall have been
duly given, and if on or before the redemption date specified in such notice,
there shall have been deposited with a bank or trust company in Borough of
Manhattan, City and State of New York, having capital, surplus and undivided
profits of at least Twenty-Five Million Dollars ($25,000,000.00) in trust for
the account of the holders of the shares so called for redemption which shall
not have been surrendered for conversion pursuant to the paragraph entitled
"Conversion", the funds necessary for such redemption, then upon the making of
such deposit in trust, the shares with respect to which such deposit shall have
been made shall no longer be deemed to be outstanding, and all rights with
respect to such shares, including the rights, if any, to receive notices and to
vote, shall forthwith cease and terminate, except only the right of the holders
thereof to receive, out of the funds so deposited in trust, from and after the
date of such deposit, the amount payable upon the redemption thereof, without
interest, or to convert their shares, up to the close of business on the third
(3rd) full business day prior to the date fixed for redemption, into Common
Stock pursuant to the paragraph entitled "Conversion". Any funds so deposited
which shall not be required for such redemption because of the exercise of any
right of conversion or exchange or otherwise subsequent to the date of such
deposit shall be returned to the Corporation forthwith. Any interest accrued
on any funds so deposited shall belong to the Corporation and be paid to it
from time to time. Any other funds so set aside or deposited by the
Corporation and unclaimed at the end of six (6) years from the date fixed for
such redemption shall be repaid to the Corporation, upon its request, after
which repayment the holders of such shares so called for redemption shall look
only to the Corporation for the payment of the amount payable upon the
redemption thereof. Subject to the provisions hereof, the Board of Directors
shall have authority to prescribe the manner in which the Convertible Preferred
Stock shall be redeemed from time to time. All shares of Convertible Preferred
Stock so redeemed shall be permanently retired and shall not under any
circumstances be reissued; and the Corporation may from time to time take such
appropriate
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<PAGE> 19
corporate action as may be necessary to reduce the authorized Convertible
Preferred Stock accordingly.
C. Liquidation:
Upon any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Convertible Preferred Stock shall
be entitled, before any distribution or payment is made upon any junior stock,
to be paid an amount equal to Twenty Dollars ($20.00) per share plus an amount
equal to dividends accrued to the date of such payment, and the holders of the
Convertible Preferred Stock shall not be entitled to any further payment.
Written notice of such liquidation, dissolution or winding up, stating a
payment date and the place where said sums shall be payable and containing a
statement of or reference to the conversion right set forth in the paragraph
entitled "Conversion", shall be given by mail, postage prepaid, not less than
thirty (30) days prior to the payment date stated therein, to the holders of
record of the Convertible Preferred Stock, such notice to be addressed to each
such stockholder at his post office address as shown by the records of the
Corporation. Neither the consolidation or merger of the Corporation into or
with any other corporation or corporations, nor the sale or transfer by the
Corporation of all or any part of its assets, nor the reduction of the capital
stock of the Corporation, shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of any of the provisions of
this paragraph.
D. Conversion:
(1) Any share or shares of Convertible Preferred Stock may be
converted, at the option of the holder thereof, in the manner hereinafter
provided, into full-paid and non-assessable shares of Common Stock of the
Corporation; provided, however, that
(a) as to any share of Convertible Preferred Stock which shall
have been called for redemption, the right of conversion shall
terminate at the close of business on the third (3rd) full business
day prior to the date fixed for redemption, and
(b) on any liquidation of the Corporation the right of
conversion shall terminate at the close of business on the third
(3rd) full business day before the date fixed for the initial payment
of distributable amounts on the Convertible Preferred Stock.
(2) The conversion rate with respect to the Convertible Preferred
Stock shall be 5.02 shares of Common Stock for each one share of such
Convertible Preferred Stock surrendered for conversion, subject to
adjustment as hereinafter provided.
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<PAGE> 20
(a) In case at any time shares of Common Stock outstanding shall
be combined into a lesser number of shares, whether by
reclassification, recapitalization, reduction of capital stock or
otherwise, the conversion rate shall be proportionately decreased.
(b) In case the shares of Common Stock at any time outstanding
shall be subdivided, by reclassification, recapitalization or
otherwise (including the issuance of shares of Common Stock as a
dividend on the Common Stock), into a greater number of shares
without the actual receipt by the Corporation of any consideration
for the additional number of shares so issued, the conversion rate
shall be proportionately increased.
(3) Any conversion rate determined or adjusted as herein provided
shall remain in effect until further adjustment as required herein. Upon
each adjustment of the conversion rate, a written instrument signed by an
officer of the Corporation, setting forth such adjustment and the
computation and a summary of the facts upon which it is based, shall
forthwith be filed with the principal transfer agent for the Convertible
Preferred Stock and the Corporation shall cause a copy thereof to be
mailed to each holder of the Convertible Preferred Stock at his post
office address as shown by the records of the Corporation, and any
adjustment so evidenced, made in good faith, shall be binding upon all
stockholders and upon the Corporation. In lieu of any fractional share
which would otherwise be issuable upon conversion, there shall be paid to
the holder of the shares of the Convertible Preferred Stock surrendered
for conversion, an amount in cash equal to the same fraction of the market
value of a full share of the stock to be received upon such conversion.
For such purpose, the market value of the stock to be received upon such
conversion shall be the last sales price thereof, regular way on the New
York Stock Exchange, Inc., on the business day immediately preceding the
date upon which the shares of the Convertible Preferred Stock are
surrendered for conversion, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices thereof, regular way
on such Exchange, on such day. If shares of the stock to be received upon
conversion are not then listed on the New York Stock Exchange, Inc., such
market value shall be determined in an equitable manner fixed by the Board
of Directors. Upon any conversion, no adjustment shall be made for
dividends on the Convertible Preferred Stock surrendered for conversion or
on the Common Stock delivered. The Corporation shall pay all issue taxes,
if any, incurred in respect of the issue of the Common Stock on
conversion, provided, however, that the Corporation shall not be required
to pay any transfer or other taxes incurred by reason of the issuance of
such Common Stock in names other than those in which the Convertible
Preferred Stock surrendered for conversion may stand.
(4) Any conversion of Convertible Preferred Stock into shares of
Common Stock shall be made by the surrender to the Corporation, at the
office of any transfer agent for the Convertible Preferred Stock, of the
certificate or certificates repre-
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<PAGE> 21
senting the share or shares of Convertible Preferred Stock to be
converted, duly endorsed or assigned (unless such endorsement or
assignment be waived by the Corporation), together with a written request
for conversion.
(5) All shares of Convertible Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be deemed to
be outstanding and all rights with respect to such shares, including the
rights, if any, to receive notices and to vote, shall forthwith cease and
terminate except only the right of the holders thereof to receive Common
Stock in exchange therefor. Any shares of Convertible Preferred Stock so
converted shall be permanently retired, shall no longer be deemed
outstanding and shall not under any circumstances be reissued and the
Corporation may from time to time take such appropriate corporate action
as may be necessary to reduce the authorized Convertible Preferred Stock
accordingly.
(6) In case of any consolidation or merger of the Corporation with
or into another corporation, or in case of any sale or conveyance to
another corporation of the property of the Corporation as an entity or
substantially as an entity, the holder of each share of Convertible
Preferred Stock then outstanding shall have the right thereafter to
convert such share into the kind and amount of shares of stock and other
securities and property receivable, upon such consolidation, merger, sale
or conveyance, by a holder of the number of shares of Common Stock (whole
or fractional) of the Corporation into which such share of Convertible
Preferred Stock might have been converted immediately prior to such
consolidation, merger, sale or conveyance. In the event of any such
consolidation, merger, sale or conveyance
(a) effective provision shall be made, in the articles of the
continuing or successor corporation or otherwise, so that in the
opinion of the Board of Directors the provisions set forth herein for
the protection of the conversion rights of the Convertible Preferred
Stock shall thereafter be applicable, as nearly as reasonably may be,
to any such other shares of stock and other securities and property
deliverable upon conversion of the Convertible Preferred Stock
remaining outstanding or other convertible preferred stock received
by the holders in place thereof, and
(b) any such continuing or successor corporation shall expressly
assume the obligation to deliver, upon the exercise of the conversion
privilege, such shares, securities or property as the holders of
shares of the Convertible Preferred Stock remaining outstanding, or
other convertible preferred stock received by the holders in place
thereof, shall be entitled to receive pursuant to the provision
hereof, and to make provision for the protection of the conversion
right as above provided. In case securities or property other than
Common Stock shall be issuable or deliverable upon conversion as
aforesaid, then all references under the subcaption "Conversion"
shall be deemed to
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<PAGE> 22
apply, so far as appropriate and, as nearly as may be, to such other
securities or property.
(7) A number of shares of authorized Common Stock sufficient to
provide for the conversion of the Convertible Preferred Stock outstanding
upon the basis hereinbefore provided shall at all times be reserved for
such conversion. If the Corporation shall propose to make any change in
its capital structure which would change the number of shares of Common
Stock into which each share of the Convertible Preferred Stock would be
convertible as herein provided, the Corporation shall at the same time
also make proper provision so that thereafter there shall be a sufficient
number of shares of Common Stock authorized and reserved for conversion of
the outstanding Convertible Preferred Stock on the new basis.
(8) In the event the Corporation elects to make any distribution
(other than cash dividends, or distributions payable in its Common Stock
which give rise to an adjustment pursuant to subparagraph (2) above) to
holders of its Common Stock, or to offer to holders of its Common Stock
for subscription, pro-rata, additional shares of its Common Stock, or
securities convertible into its Common Stock, it will at least fifteen
(15) days prior to the date or expected date for determining stockholders
entitled to such distribution or subscription rights, give notice thereof
by mail to the registered holders of the Convertible Preferred Stock.
(9) In the event the Corporation shall issue rights or warrants to
the holders of its Common Stock, entitling them to subscribe for or to
purchase Common Stock or securities convertible into Common Stock, then,
in such case, the holders of the Convertible Preferred Stock shall, for
the purpose of such issue or distribution, be treated as though they had
converted their stock into Common Stock immediately prior to the record
date of such issue or distribution, and shall be entitled to receive such
rights or warrants on a basis proportionately equal to the number of
shares of Common Stock they would have held if their stock had been so
converted.
E. Voting Rights:
(1) Each holder of Convertible Preferred Stock shall be entitled to
5.02 of a vote for each share held (subject to adjustment as provided in
the second sentence of this subparagraph (1)) and, except as otherwise
provided by law or by the provisions of the following subparagraph (2),
the Convertible Preferred Stock and the Common Stock of the Corporation
(and any other capital stock of the Corporation at the time entitled to
vote generally) shall vote together as one class. The percentage of a
vote to which each holder of Convertible Preferred Stock shall be entitled
to for each share held shall be
(i) proportionately increased in case the shares of Common Stock
at any time outstanding shall be subdivided, by reclassification,
recapitalization
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<PAGE> 23
or otherwise (including the issuance of shares of Common Stock
as a dividend on the Common Stock), into a greater number of
shares without the actual receipt by the Corporation of any
consideration for the additional number of shares so issued, and
(ii) proportionately decreased in case at any time shares
of Common Stock outstanding shall be combined into a lesser number of
shares, whether by reclassification, recapitalization, reduction of
capital stock or otherwise.
(2) At any time when six (6) quarterly dividends on the Convertible
Preferred Stock shall be in default, the holders of the Convertible
Preferred Stock at the time or times outstanding shall be entitled, at the
next annual meeting of stockholders or special meeting held in place
thereof, at which time the number of directors constituting the Board of
Directors shall be increased by two (2), voting as a class, to the
exclusion of the holders of Common Stock and any other outstanding capital
stock of the Corporation, to vote for and elect two (2) members of the
Board of Directors to fill such newly created directorships. All rights
of the Convertible Preferred Stock to participate in the election of
directors pursuant to this subparagraph (2) shall continue in effect until
cumulative dividends have been paid in full or set apart for payment on
the Convertible Preferred Stock. Whenever the holders of the Convertible
Preferred Stock shall be divested of such voting right hereinabove
provided, the directors so elected by the Convertible Preferred Stock
shall thereupon cease to be directors of the Corporation and thereupon the
number of directors shall be reduced by two (2). Directors elected by the
holders of the Convertible Preferred Stock voting separately as a class,
may be removed only by a majority vote of such class, voting separately as
a class, so long as the voting power of such class shall continue. At any
time when the special voting right provided for in this subparagraph (2)
shall be vested in the holders of the Convertible Preferred Stock, holders
of the Convertible Preferred Stock shall not be entitled to vote for the
election of directors except as provided in this subparagraph (2). During
any period in which the holders of shares of Convertible Preferred Stock
have the right to elect directors as provided for herein, any vacancy in
the directors elected by such holders shall be filled by the vote of the
remaining director theretofore elected by such holders. If not so filled
within forty (40) days after the creation thereof, the Secretary of the
Corporation shall call a special meeting of the holders of the Convertible
Preferred Stock and such vacancy or vacancies shall be filled at such
special meeting.
(3) The consent of the holders of not less than two-thirds (2/3) of
the shares of Convertible Preferred Stock at the time outstanding, given
in person or by proxy, at an annual meeting or a special meeting called
for the purpose, at which the Convertible Preferred Stock shall vote
separately as a class, shall be necessary to effect the alteration of any
of the provisions of the Articles of Incorporation or Bylaws of the
Corporation so as to affect adversely the rights or preferences of the
Convertible Preferred Stock, it being understood that the creation of, or
the increase
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<PAGE> 24
in the authorized amount of, any stock ranking prior to the Convertible
Preferred Stock shall be deemed to affect adversely the rights or
preferences of the Convertible Preferred Stock.
COMMON STOCK
Subject to all of the rights of the $1.20 Convertible Preferred Stock and
of the Class A Preferred Stock, dividends may be paid upon the Common Stock as
and when declared by the Board of Directors out of any funds legally available
for the payment of dividends.
Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, and after the holders of the $1.20
Convertible Preferred Stock and of the Class A Preferred Stock shall have been
paid in full the amounts to which they respectively shall be entitled, or to an
amount sufficient to pay the aggregate amount to which the holders of the $1.20
Convertible Preferred Stock and of the Class A Preferred Stock shall be
entitled shall have been deposited with a bank or trust company having its
principal office in the Borough of Manhattan, City of New York, and having a
capital, surplus and undivided profits of at least Twenty-Five Million Dollars
($25,000,000.00) as a trust fund for the benefit of the holders of such $1.20
Convertible Preferred Stock and Class A Preferred Stock, the remaining net
assets of the Corporation shall be distributed pro-rata to the holders of the
Common Stock in accordance with their respective rights and interests.
Except as otherwise may be required by law or by the provisions of this
Article Third, the $1.20 Convertible Preferred Stock, Class A Preferred Stock
and Common Stock shall have the exclusive rights to vote for the election of
directors and for all other purposes, each holder of the $1.20 Convertible
Preferred Stock being entitled to 5.02 of a vote for each share thereof held,
each holder of Class A Preferred Stock being entitled to voting power to the
extent, if any, fixed by the Board of Directors, and each holder of the Common
Stock being entitled to one vote for each share thereof held.
DEFINITIONS APPLICABLE TO ALL CLASSES OF STOCK
The following terms, as used in this Article Third, shall have the
following meanings:
The term "junior stock" shall mean the Common Stock and any other stock
ranking junior to the $1.20 Convertible Preferred Stock in respect of the
payment of dividends or of payment in liquidation, or both, in accordance with
the subject matter of the context;
The term "subsidiary" shall mean any corporation a majority of the voting
stock of which is at the time owned by the Corporation and its other
subsidiaries;
The term "voting stock" shall mean outstanding shares of stock having
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power because of default in
dividends or some other default.
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PREEMPTIVE RIGHTS
No holder of any class of stock of the Corporation shall be entitled as
such, as a matter of right, to any preemptive or preferential rights to
subscribe for or purchase any part of any new or additional issue of stock of
the Corporation of any class whatsoever, or of any notes, bonds, obligations or
other securities, whether or not the same be convertible into or exchangeable
for stock of the Corporation of any class whatsoever, whether now or hereafter
authorized, or whether issued for cash or other consideration, or by way of
dividend.
FOURTH: The street address of the initial registered office of the
Corporation in the State of North Carolina is 327 Hillsborough Street, Raleigh,
North Carolina 27603, Wake County, North Carolina; and the name of its initial
registered agent at such address is The Prentice-Hall Corporation System, Inc.
The mailing address of the initial registered office is 327 Hillsborough
Street, Raleigh, North Carolina 27603.
FIFTH: The duration of the Corporation shall be perpetual.
SIXTH: The number of directors shall be not less than three (3) nor
more than fifteen (15); provided that the number of directors shall be
increased in the event that (and for so long as) the holders of any class of
preferred stock of the Corporation shall, under the provisions of the Articles
of Incorporation of the Corporation, become entitled to elect, as a class,
directors because of default in the payment of dividends. The exact number of
directors shall be determined from time to time by the Board of Directors. The
number of directors constituting the initial board of directors shall be nine
(9).
SEVENTH: The following provisions are inserted for the regulation and
conduct of the Corporation, and it is expressly provided that they are intended
to be in furtherance and not in limitation or exclusion of the powers conferred
by statute:
(a) The Board of Directors may designate two (2) or more of its
number to constitute an Executive Committee, which shall have and
exercise, subject to such limitations, if any, as may be prescribed by the
Bylaws or by resolution of the Board of Directors, the powers of the Board
of Directors in the management of the business and affairs of the
Corporation which may be lawfully delegated, provided such Executive
Committee shall act only at such times as the Board of Directors is not in
session and in no case to the exclusion of the right of the Board of
Directors at any time to act as a Board upon any business of the
Corporation.
(b) The directors of the Corporation need not be stockholders
thereof.
(c) Meetings of the stockholders and directors of the Corporation
for all purposes may be held in places in the State of North Carolina, and
at such place or places outside of the State of North Carolina as may,
from time to time, be designated in the Bylaws or by resolutions of the
Board.
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<PAGE> 26
(d) The Bylaws may prescribe the number of directors necessary to
constitute a quorum, which number may be less than a majority of the whole
Board of Directors, but not less than the number required by law.
(e) All corporate powers, including the sale, mortgage,
hypothecation and pledge of the whole or any part of the corporate
property shall be exercised by the Board of Directors, except as otherwise
provided by law.
(f) The Corporation may have one or more offices within or without
the State of North Carolina and may keep the books of the Corporation,
subject to the provisions of the laws of the State of North Carolina, at
such places within or without the State of North Carolina as the Board of
Directors shall from time to time determine.
(g) The Board of Directors shall from time to time decide whether
and to what extent and at what times and under what conditions and
requirements the accounts and books of the Corporation, or any of them,
except the stock books, shall be open to the inspection of the
stockholders, and no stockholder shall have any right to inspect any books
or documents of the Corporation, except as conferred by the laws of the
State of North Carolina or authorized by the Board of Directors.
(h) A director of the Corporation shall not, in the absence of
fraud, be disqualified by his office from dealing with or contracting with
the Corporation either as vendor, purchaser or otherwise, nor, in the
absence of fraud, shall any transaction or contract of the Corporation be
void or voidable or affected by reason of the fact that any director or
any firm, of which any director is a member, or any corporation of which
the director is an officer, director or stockholder, is in any way
interested in such transaction or contract; provided that at the meeting
of the Board of Directors or of the Committee thereof having authority in
the premises to authorize or confirm said contract or transaction, the
interest of such director, firm or corporation is disclosed or known, and
there shall be present a quorum of directors or of the directors
constituting such Committee not so interested or connected and such
contract or transaction shall be approved by a majority of such quorum,
which majority shall consist of directors not so interested or connected.
Nor shall any director or directors so interested or connected be liable
to the Corporation or to any stockholders or creditor thereof or to any
other person for any loss incurred by it under or by reason of any such
contract or transaction. Nor shall any such director or directors be
accountable for any gains or profits realized thereon; always provided,
however, that such contract or transaction shall at the time it was
entered into have been a reasonable one to have been entered into and
shall have been upon terms that at the time were fair.
(i) Any contract, transaction or act of the Corporation or of the
Board of Directors or of the Executive Committee or of any other duly
constituted committee
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<PAGE> 27
and of which disclosure shall be made in the notice of the meeting and
which shall be approved or ratified by a majority in interest of a quorum
of the stockholders of the Corporation having voting power at any annual
or any special meeting called for such purpose shall, except as otherwise
provided by the laws of the State of North Carolina, be as valid and as
binding as though approved or ratified by every stockholder of the
Corporation; provided, however, that any failure of the stockholders to
approve or ratify such contract, transaction or act, when and if
submitted, shall not be deemed in any way to invalidate the same or to
deprive the Corporation, its directors or officers of their right to
proceed with such contract, transaction or action. Any director of the
Corporation may vote upon any contract or other transaction between the
Corporation and any subsidiary or affiliated corporation without regard to
the fact that he is also a director of such subsidiary or affiliated
corporation.
(j) The Corporation shall, to the fullest extent permitted by
applicable law, indemnify any person who is or was made, or threatened to
be made, a party to an action or proceeding, whether civil or criminal,
including an action by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, which any director or
officer of the Corporation is serving or served in any capacity at the
request of the Corporation, by reason of the fact that he, his testator or
intestate, is or was a director or officer of the Corporation, or is
serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement and expenses, including
attorneys' fees, or any appeal therein. Permissible indemnification may
be provided, as a matter of discretion, to any other person in accordance
with the provisions of the North Carolina Business Corporation Act, as
from time to time amended, or other applicable law. Any director or
officer of the Corporation serving another corporation or employee benefit
plan of such corporation, of which a majority of the shares entitled to
vote in the election of its directors is held by the Corporation, shall be
deemed to be doing so at the request of the Corporation.
Any person entitled to be indemnified as a matter of right pursuant
to this Section (j) may elect to have the right to indemnification
interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the action or
proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time indemnification is sought. The right
to be indemnified pursuant to this Section (j) is intended to be
retroactive and shall be available with respect to events occurring prior
to the adoption hereof. Such right shall be a contract right and shall
include the right to be paid by the Corporation expenses incurred in
defending any action or proceeding in advance of its final disposition;
provided, however, that, the payment of such expenses incurred by a
director or officer in his capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person
while a director or
27
<PAGE> 28
officer, including without limitation, service to an employee benefit
plan) in advance of the final disposition of such action or proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by
or on behalf of such director or officer, to repay all amounts so advanced
if it should ultimately be determined that such director or officer is not
entitled to be indemnified under this Section.
If a claim is not paid in full by the Corporation within ninety (90)
days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled also to be paid the expense of
prosecuting such claim. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
has met the applicable standard of conduct, nor an actual determination by
the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create
a presumption that claimant had not met the applicable standard of
conduct.
(k) The Board of Directors may determine from time to time the
amount of compensation which shall be paid to its members. It shall also
have power, in its discretion, to provide for and pay to directors
rendering services to the Corporation not ordinarily rendered by
directors, as such, special compensation appropriate to the value of such
services, as determined by the Board from time to time.
(l) Subject to the Bylaws made by stockholders, the Board of
Directors may make Bylaws and from time to time may alter, amend or repeal
any Bylaws, but any Bylaw made by the Board of Directors may be altered or
repealed by the stockholders.
(m) No person who is serving or who has served as a director of the
Corporation shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of duty as a director, except
for liability with respect to
(i) acts or omissions that the director at the time of such
breach knew or believed were clearly in conflict with the best
interests of the Corporation,
(ii) any transaction from which the director derived an
improper personal benefit, or
(iii) acts or omissions with respect to which the North
Carolina Business Corporation Act does not permit the limitation of
liability. As used herein, the term "improper personal benefit" does
not include a director's reasonable compensation or other reasonable
incidental benefit for or on account of
28
<PAGE> 29
his service as a director, officer, employee, independent contractor,
attorney or consultant of the Corporation. No amendments or repeal
of this article, nor the adoption of any provision to these Articles
inconsistent with this article, shall eliminate or reduce the
protection granted herein with respect to any matter that occurred
prior to such amendment, repeal or adoption.
EIGHTH: The Corporation hereby reserves the right to amend, alter,
change or repeal any provision contained in these Articles as now stated
and as hereafter amended, altered or changed, in the manner now or
hereafter prescribed by the laws of the State of North Carolina, and all
rights and powers conferred by these Articles on stockholders, directors
or officers of the Corporation are hereby granted subject to this
reservation; provided that the provisions of these Articles, as so
amended, changed, altered or repealed, shall contain such provisions as
shall be lawful.
NINTH: Any one or more or all of the directors elected by the
holders of the Common Stock and any Preferred Stock voting together with
the Common Stock as one class may be removed from office, either with or
without cause at any time, only by the vote of the holders of two-thirds
(2/3rds) of all outstanding shares of Common Stock and any Preferred Stock
voting together with the Common Stock as one class, present in person or
by proxy, at any meeting of such stockholders. The successor or
successors of any director or directors so removed may be elected in the
manner provided by the By-Laws of the Corporation for the filling of
vacancies in the Board.
Notwithstanding any other provision of these Articles or of the
Bylaws of the Corporation (and in addition to any other vote that may be
required by statute, these Articles or the Bylaws of the Corporation), the
vote of the holders of two-thirds (2/3rds) of all outstanding shares of
Common Stock and any Preferred Stock voting together with the Common Stock
as one class shall be required to amend, alter, change or repeal Article
Sixth hereof, Section 1 of Article II of the By-Laws of the Corporation,
or this Article.
TENTH:
(1) The affirmative vote or consent of the holders of
ninety-five percent (95%) of the outstanding voting shares (as
hereinafter defined) of the Corporation, considered for the purposes
of this Article Tenth as one class, shall be required for the
adoption or authorization of a business combination (as hereinafter
defined) with any other entity (as hereinafter defined) if, as of the
record date for the determination of stockholders entitled to notice
thereof and to vote thereon or consent thereto, such other entity is
the beneficial owner, directly or indirectly, of thirty percent (30%)
or more of the then outstanding voting shares of the Corporation,
considered for the purposes of this Article Tenth as one class;
provided that such ninety-five percent (95%) voting requirement shall
not be applicable if:
29
<PAGE> 30
(a) The cash, or fair market value of other consideration,
to be received per share by holders of the Corporation's Common
Stock and convertible securities (as hereinafter defined) in
such business combination bears the same or a greater percentage
relationship to the market price of the Corporation's Common
Stock and convertible securities, as the case may be,
immediately prior to the record date for the determination of
stockholders entitled to notice of and to vote on or consent to
such business combination as the highest per share price
(including the highest per share brokerage commissions and/or
soliciting dealers' fees) which such other entity has
theretofore paid for any of the shares of the Corporation's
Common Stock and convertible securities already owned by it
bears to the market price of the Common Stock and convertible
securities, as the case may be, of the corporation immediately
prior to the commencement of acquisition of the corporation's
Common Stock or convertible securities by such other entity;
(b) The cash, or fair market value of other consideration,
to be received per share in such business combination
(i) by holders of the Corporation's Common Stock and
convertible securities is not less than the highest per
share price (including the highest per share brokerage
commissions and/or soliciting dealers' fees) paid by such
other entity in acquiring any of its holdings of the
Corporation's Common Stock and convertible securities, as
the case may be, and
(ii) by holders of the Corporation's Common Stock
is not less than the earnings per share of Common Stock of
the Corporation (appropriately adjusted for any subdivision
of shares, stock dividend or combination of shares during
the period) for the four (4) full consecutive fiscal
quarters immediately preceding the record date for
solicitation of votes on such business combination,
multiplied by the then price/earnings multiple (if any) of
such other entity as customarily computed and reported in
the financial community;
(c) After such other entity has acquired thirty percent
(30%) or more of the then outstanding voting shares of the
Corporation, considered for the purposes of this Article Tenth
as one class, and prior to the consummation of such business
combination:
(i) such other entity shall have taken steps to
ensure that the Corporation's Board of Directors included at
all times representation by continuing director(s) (as
hereinafter defined) proportionate to the stock holdings of
the Corporation's public holders of voting shares not
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<PAGE> 31
affiliated with such other entity (with a continuing
director to occupy any resulting fractional board position);
(ii) there shall have been no failure to declare
and pay full quarterly dividends on the Corporation's
Convertible Preferred Stock, and there shall have been no
reduction in the annual rate of dividends paid on the
Corporation's Common Stock, except as may have been
necessary to reflect any subdivision of the Corporation's
Common Stock, or except as may have been approved by a
unanimous vote of the directors;
(iii) such other entity shall not have acquired
any newly-issued shares of stock, directly or indirectly,
from the Corporation (except upon conversion of convertible
securities acquired by it prior to obtaining its thirty
percent (30%) or more of the then outstanding voting shares
of the Corporation, considered for the purposes of this
Article Tenth as one class, or as a result of a pro-rata
stock dividend or stock split); and
(iv) such other entity shall not have acquired
any additional shares of the Corporation's outstanding
Common Stock or securities convertible into Common Stock
except as a part of the transaction which results in such
other entity acquiring its thirty percent (30%) or more of
the then outstanding voting shares of the Corporation,
considered for the purposes of this Article Tenth as one
class;
(d) Such other entity shall not have
(i) received the benefit, directly or indirectly
(except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance
or tax credits provided by the Corporation, or
(ii) made any major change in the Corporation's
business or equity capital structure without the unanimous
approval of the directors, in either case prior to the
consummation of such business combination; and
(e) A proxy statement responsive to the requirements of
the Securities Exchange Act of 1934 shall be mailed to public
stockholders of the Corporation for the purpose of soliciting
stockholder approval of such business combination and shall
contain at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of
the business combination which the continuing directors, or any
of them, may choose to
31
<PAGE> 32
state and, if deemed advisable by a majority of the continuing
directors, an opinion of a reputable investment banking firm as
to the fairness (or not) of the terms of such business
combination, from the point of view of the remaining public
stockholders of the Corporation (such investment banking firm to
be selected by a majority of the continuing directors and to be
paid a reasonable fee for their services by the Corporation upon
receipt of such opinion).
The provisions of this Article Tenth shall also apply to a business
combination with any other entity which at any time has been the beneficial
owner, directly or indirectly, of thirty percent (30%) or more of the then
outstanding voting shares of the Corporation, considered for the purposes of
this Article Tenth as one class, notwithstanding the fact that such other
entity has reduced its holdings of voting shares below such thirty percent
(30%) if, as of the record date for the determination of stockholders entitled
to notice of and to vote on or consent to the business combination, such other
entity is an affiliate (as hereinafter defined) of the Corporation.
(2) As used in this Article Tenth,
(a) the term "other entity" shall include any corporation, trust,
partnership, association, person or other entity and any other entity with
which it or its affiliate or associate (as defined below) has any
agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of stock of the
Corporation, or which is its "affiliate" or "associate" as those terms are
defined in the General Rules and Regulations under the Securities Exchange
Act of 1934 as same has been or hereafter may be amended from time to
time, together with the successors and assigns of such persons, in any
transaction or series of transactions not involving a public offering of
the Corporation's stock within the meaning of the Securities Act of 1933,
as amended;
(b) another entity shall be deemed to be the beneficial owner of any
voting shares which such other entity has the right to acquire pursuant to
any agreement, or upon exercise of conversion rights, warrants or options,
or otherwise;
(c) the outstanding shares of any class of stock of the Corporation
shall include shares deemed owned through application of clause (b) above
but shall not include any other shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or options,
or otherwise;
(d) the term "business combination" shall include any merger or
consolidation of the Corporation with or into any other entity, or the
sale or lease of all or any substantial part of the assets of the
Corporation to any other entity, or any sale or lease to the Corporation
or any subsidiary thereof in exchange for securities of the Corporation of
any assets of any other entity;
32
<PAGE> 33
(e) the term "continuing director" shall mean a person who was a
member of the Board of Directors of the Corporation elected by the public
stockholders prior to the time that such other entity acquired in excess
of ten percent (10%) of the voting shares of the Corporation, considered
for the purposes of this Article Tenth as one class, or a person
recommended to succeed a continuing director by a majority of continuing
directors;
(f) for the purposes of subparagraphs 1(a) and (b) of this Article
Tenth, (x) the term "other consideration to be received" shall include
Common Stock or Convertible Preferred Stock of the Corporation, as the
case may be, retained by its existing public stockholders in the event of
a business combination with such other entity in which the Corporation is
the surviving corporation; and (y) term "the highest per share price" paid
by such other entity for the Corporation's Common Stock shall include, if
applicable, the highest price paid for a security convertible into such
Common Stock (A) minus the fixed income premium, if any, in the market
price of such convertible security prior to the initial purchase of any
securities of the Corporation by such other entity, and (B) divided by the
number of shares of Common Stock receivable upon conversion thereof;
(g) the term "voting shares" shall mean shares of stock of the
Corporation regularly entitled to vote in elections of directors,
otherwise than as the result of a default in dividends or the occurrence
of any other contingency set forth in these Articles of Incorporation; and
(h) the term "convertible securities" shall mean any securities
(i) which are convertible into shares of Common Stock of the
Corporation,
(ii) which are registered under Section 12 of the Securities
Exchange Act of 1934 and
(iii) for which recent published quotations of bid and asked
prices or sale prices are available at all times at which a
determination thereof is required under this Article Tenth.
(3) A majority of the continuing directors shall have the power and duty
to determine for the purposes of this Article Tenth on the basis of information
known to them whether
(a) such other entity beneficially owns, directly or indirectly,
thirty percent (30%) or more of the then outstanding voting shares of the
Corporation, considered for the purposes of this Article Tenth as one
class,
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<PAGE> 34
(b) another entity is an affiliate or associate (as defined above)
of another,
or
(c) another entity has an agreement, arrangement or understanding with
another.
(4) No amendment to the Articles of the Corporation shall amend, alter,
change or repeal any of the provisions of this Article Tenth, unless the
amendment effecting such amendment, alteration, change or repeal shall receive
the affirmative vote or consent of the holders of ninety-five percent (95%) of
all outstanding voting shares of the Corporation, considered for the purposes
of this Article Tenth as one class; provided that this paragraph 4 shall not
apply to, and such ninety-five percent (95%) vote or consent shall not be
required for, any amendment, alteration, change or repeal recommended to the
stockholders by the Board of Directors if all of such directors are persons who
would be eligible to serve as continuing directors within the meaning of
paragraph 2 of this Article Tenth.
(5) Nothing contained in this Article Tenth shall be construed to relieve
any other entity from any fiduciary obligation imposed by law.
(6) Nothing contained in this Article Tenth shall in any way limit any
other provision of these Articles or of the Bylaws of the Corporation or of any
applicable law under which any class of the Corporation's equity securities
shall have the benefit of a higher voting standard or be entitled to a separate
class vote in addition to any other vote required by this Article Tenth.
ELEVENTH: The name and address of the incorporator is William B. Gwyn,
Jr., Highwoods Tower One, Suite 500, 3200 Beechleaf Court, Raleigh, Wake
County, North Carolina 27604.
TWELFTH: These Articles will become effective at 12:01 A.M. on October
8, 1993.
This the 8th day of October, 1993.
/S/WILLIAM B. GWYN, JR.
---------------------------
William B. Gwyn, Jr.
Incorporator
34
<PAGE> 1
EXHIBIT 3.2
ARTICLES OF AMENDMENT
OF
FEDCO, INC.
Pursuant to Section 55-10-06 of the North Carolina General Statutes, the
undersigned corporation hereby submits these Articles of Amendment for the
purpose of amending its Articles of Incorporation:
1. The name of the corporation is FEDCO, INC.
2. The Articles of Incorporation are hereby amended as follows:
Article Seventh, subsection (j) is changed to read as follows:
"(j)
(i) The Corporation shall, to the fullest extent permitted
from time to time by law, indemnify its directors and
officers against all liabilities and expenses in any
suit or proceeding, whether civil, criminal,
administrative or investigative, and whether or not
brought by or on behalf of the Corporation, including
all appeals therefrom, arising out of their status as
such or their activities in any of the foregoing
capacities, unless the activities of the person to be
indemnified were at the time taken known or believed
by him to be clearly in conflict with the best
interests of the Corporation. The Corporation shall
likewise and to the same extent indemnify any person
who, at the request of the Corporation, is or was
serving as a director, officer, partner, trustee,
employee or agent of another foreign or domestic
corporation, partnership joint venture, trust or other
enterprise or as a trustee or administrator under any
employee benefit plan.
(ii) The right to be indemnified hereunder shall include,
without limitation, the right of a director or officer
to be paid expenses in advance of the final
disposition of any proceeding upon receipt of an
undertaking to repay such amount unless it shall
ultimately be determined that he is entitled to be
indemnified hereunder.
(iii) A person entitled to indemnification hereunder shall
also be paid reasonable costs, expenses and attorneys'
fees (including expenses) in connection with the
enforcement of rights to the indemnification granted
hereunder.
(iv) The foregoing rights of indemnification shall not be
exclusive of any other rights to which those seeking
indemnification may be
<PAGE> 2
entitled and shall not be limited by the provisions
of Section 55-8-51 of the General Statutes of North
Carolina and any successor statute.
(v) The Board of Directors may take any such action as it
deems necessary or desirable to carry out these
indemnification provisions including adopting
procedures for determining and enforcing the rights
guaranteed hereunder, and the Board of Directors is
expressly empowered to adopt, approve and amend from
time to time such bylaws, resolutions or contracts
implementing such provisions or such further
indemnification arrangement as may be permitted by
law.
(vi) Neither the amendment or repeal of this Article, nor
the adoption of any provision of these Articles of
Incorporation inconsistent with this Article, shall
eliminate or reduce any right to indemnification
afforded by this Article to any persons with respect
to their status or any activities in their official
capacities prior to such amendment, repeal or
adoption."
3. The foregoing amendment was adopted on the 18th day of January, 1994,
by the sole incorporator without shareholder action which was not
required pursuant to Section 55-10-05 of the North Carolina General
Statutes because the corporation has not yet issued shares.
This the 18th day of January, 1994.
FEDCO, INC.
By: /s/WILLIAM B. GWYN, JR.
----------------------------------
William B. Gwyn, Jr., Incorporator
<PAGE> 1
EXHIBIT 3.3
BY-LAWS
OF
FEDERAL PAPER BOARD COMPANY, INC.
A NORTH CAROLINA CORPORATION
<PAGE> 2
B Y - L A W S
OF
FEDERAL PAPER BOARD COMPANY, INC.
A NORTH CAROLINA CORPORATION
ARTICLE I
Meetings of Stockholders
Section 1. The annual meeting of the stockholders of the
Corporation shall be held at such place within or without the State of North
Carolina as may be designated by the Board of Directors, on the third Tuesday
of April in each year, at an hour to be named in the notice, for the election
of directors and the transaction of such other business as may properly come
before the meeting. If such day shall be a legal holiday, such meeting shall
be held on the next succeeding business day.
Section 2. Special meetings of the stockholders may be held within
or without the State of North Carolina at such place designated in the notice.
Special meetings, except those regulated otherwise by statute, may be called at
any time by the Chairman of the Board, the President, or the Board of
Directors.
Section 3. Written notice of each meeting of stockholders, whether
annual or special, stating the time, place and purpose or purposes of such
meeting, shall be given by serving a copy of such notice upon each stockholder
entitled to vote, either personally or by mail, not less than ten nor more than
sixty days before such meeting. If mailed, such copy shall be addressed to
each such stockholder at his address as the same shall appear on
<PAGE> 3
the stock book of the Corporation unless he shall have filed with the Secretary
of the Corporation a written request that notices intended for him shall be
mailed to some other address, in which case such copy shall be mailed to the
address designated in such request.
Section 4. At all meetings of stockholders, the holders of a majority
of the outstanding shares entitled to vote, present either in person or by
proxy, shall constitute a quorum, except as may be otherwise provided by law.
At any meeting at which the holders of any class of stock are entitled to vote
separately as a class, the holders of a majority of the outstanding stock of
such class shall constitute a quorum of such class, except as may be otherwise
provided by law; provided, however, that: (i) at any meeting of stockholders
for the election of directors at which any class of Preferred Stock shall be
entitled to vote separately as a class, the holders of one-third of the
outstanding shares of such class, present in person or by proxy, shall
constitute a quorum of such class for the election of any director or directors
to be elected by such class, (ii) the absence of a quorum of a class of
Preferred Stock entitled to elect a director or directors shall not prevent the
election of directors by the holders of other stock not voting separately as a
class or of another class of Preferred Stock voting separately as a class, and
(iii) the absence of a quorum of the other stock entitled to vote but not
voting separately as a class shall not prevent the election of directors to be
elected by the holders of any class of Preferred Stock voting separately as a
class.
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<PAGE> 4
Section 5. The Board of Directors may prescribe a period, not
exceeding fifty days prior to the date of meetings of the stockholders or prior
to the last day on which the consent or dissent of stockholders may be
effectively expressed for any purpose without a meeting, during which no
transfer of stock on the books of the Corporation may be made; or in lieu of
prohibiting the transfer of stock may fix a time not more than fifty days prior
to the date of any meeting of stockholders or prior to the last day on which
the consent or dissent of stockholders may be effectively expressed for any
purpose without a meeting as the time as of which stockholders entitled to
notice of and to vote at such a meeting or whose consent or dissent is required
or may be expressed for any purpose, as the case may be, shall be determined,
and all persons who were holders of record of voting stock at such time and no
others shall be entitled to notice of and to vote at such meeting or to express
their consent or dissent, as the case may be.
Section 6. At all meetings of stockholders at which a quorum is
present, all questions shall be determined by the vote of holders of a majority
of the shares represented at the meeting by stockholders present in person or
by proxy and entitled to vote, except as may be otherwise provided by law, by
the Articles of Incorporation or these By-Laws. Any meeting of stockholders
may be adjourned to a designated time and place by the vote of a majority in
interest of the stockholders present in person or by proxy and entitled to
vote, even though less than a quorum is so present. No notice of such an
adjourned meeting of stockholders need be given, unless otherwise required by
law, other than by
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<PAGE> 5
announcement of the meeting. At any adjourned meeting at which a quorum shall
attend any business may be transacted which might have been transacted at the
meeting as originally called. In the absence of a quorum of any class of stock
at any meeting of stockholders for the election of directors at which any class
of stock shall be entitled to vote separately as a class for the election of
directors, a majority in interest of the stockholders present in person or by
proxy of the class of stock which lacks a quorum shall also have the power to
adjourn the meeting for the election of directors which they are entitled to
elect, from time to time, without notice, unless otherwise required by law,
other than by announcement at the meeting, until a quorum of such class shall
be present.
Section 7. The Inspectors of Election to serve at any election of
directors by stockholders, or in any other case in which inspectors may act at
any annual or special meeting of stockholders, may be appointed by the Board of
Directors, or, if not appointed by the Board of Directors, may be appointed by
stockholders at any annual or special meeting of stockholders by the vote of
the holders of record of a majority of the shares represented at the meeting by
stockholders present in person or by proxy and entitled to vote.
ARTICLE II
Directors
Section 1. The number of directors of the Corporation shall not be
less than three (3) nor more than fifteen (15); provided that the number of
directors shall be increased in the event that
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<PAGE> 6
(and for so long as) the holders of any class of Preferred Stock of the
Corporation shall, under the provisions of the Articles of Incorporation of the
Corporation, become entitled to elect, as a class, directors because of default
in the payment of dividends. The exact number of directors shall be determined
from time to time by resolution of the Board of Directors, and such exact
number shall be nine (9) until otherwise determined by resolution of the Board
of Directors.
The Board of Directors shall be divided into four classes as nearly
equal in number as may be, with the term of office of one class expiring each
year, and at the first meeting of stockholders of the Corporation, directors of
the first class shall be elected to hold office for a term expiring at the next
succeeding annual meeting; directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual meeting;
directors of the third class shall be elected to hold office for a term
expiring at the third succeeding annual meeting; and directors of the fourth
class shall be elected to hold office for a term expiring at the fourth
succeeding annual meeting. When the number of directors is changed, any newly
created directorships or any decrease in directorships shall be so apportioned
among the classes as to make all classes as nearly equal in number as possible.
When the number of directors is increased by the Board of Directors and any
newly created directorships are filled by the Board of Directors, there shall
be no classification of the additional directors until the next annual meeting
of stockholders. Notwithstanding the foregoing, whenever the holders of any
class of Preferred Stock shall be entitled to
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<PAGE> 7
vote for the election of directors, by reason of existing default in the
payment of dividends, the term of all members of the Board of Directors shall
expire at the time of such election and the entire Board of Directors shall be
elected to serve until the next meeting of stockholders at which directors are
elected. Whenever the holders of all classes of Preferred Stock are no longer
entitled to vote for the election of directors as provided in Article SIXTH of
the Articles of Incorporation, the directors shall be elected at the next
annual meeting of stockholders held for such purpose in the manner provided in
the third sentence of this section. Subject to the foregoing, at each annual
meeting of stockholders the successors to the class of directors whose term
shall then expire shall be elected to hold office for a term of four years.
The Board of Directors may adopt such rules and regulations for the
conduct of their meetings and management of the affairs of the Corporation as
they may deem proper and not inconsistent with the laws of the State of North
Carolina or these By-Laws. Meetings of the Board of Directors may be held
either within or without the State of North Carolina.
Section 2. A majority of the Board of Directors shall constitute a
quorum at any meeting.
Section 3. The Chairman of the Board, the President or a Vice
President may and, at the request of a majority of the Board of Directors, must
call a special meeting of the Board of Directors, two (2) days' notice of which
shall be given in writing or by facsimile transmission or by telegraph.
Nothing herein
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<PAGE> 8
contained shall prevent a waiver of notice of any meeting by any of the
directors.
Section 4. A vacancy in the Board of Directors may be filled by the
stockholders entitled, pursuant to the provisions of the Articles of
Incorporation, to vote thereon, or, in case of any vacancy in the Board of
Directors occurring at any time among the directors elected by the holders of
the Common Stock and the $1.20 Convertible Preferred Stock voting together as
one class (from whatever cause arising including an increase in the number of
directors), a majority of the remaining directors elected by the holders of the
Common Stock and the $1.20 Convertible Preferred Stock voting together as one
class, though less than a quorum, may elect a new director to hold office for
the unexpired term of the director whose place shall be vacant and until his
successor shall be elected and qualified (provided that in accordance with
Section 1 of this Article II when the number of directors is increased by the
Board of Directors and any newly created directorships are filled by the Board
of Directors, there shall be no classification of the additional directors
until the next annual meeting of stockholders), and in case of any vacancy in
the Board of Directors occurring at any time among the directors elected by the
holders of any class of the Preferred Stock voting separately as a class, the
remaining director elected by the holders of any class of the Preferred Stock
voting separately as a class may elect a successor to hold office for the
unexpired term of the director whose place shall be vacant and until his
successor shall be elected and qualified.
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Section 5. Any one or more or all of the directors elected by the
holders of the Common Stock and the $1.20 Convertible Preferred Stock voting
together as one class may be removed from office in the manner provided in the
Articles of Incorporation. Any one or more or all of the directors elected by
the holders of any class of Preferred Stock voting separately as a class may be
removed from office, either with or without cause, at any time, only by vote of
the stockholders holding a majority of the outstanding Preferred Stock of the
class electing such director or directors, at any special meeting of such
stockholders, and thereupon the term of such director or directors who shall
have been so removed shall forthwith terminate. The successor or successors of
any director or directors so removed may be elected in the manner provided by
these By-Laws for the filling of vacancies in the Board.
Section 6. Any action required to be or permitted to be taken by the
Board of Directors or any committee thereof, including the Executive Committee
referred to in Article IV of these By-Laws, may be taken without a meeting if
all members of the Board of Directors or the Committee consent in writing to
the adoption of a resolution authorizing the action. The resolution and
written consents thereto by the members of the Board of Directors or Committee
shall be filed with the Minutes of the proceedings of the Board of Directors or
Committee.
Section 7. Any one or more members of the Board of Directors or any
committee thereof, including the Executive Committee referred to in Article IV
of these By-Laws, may participate in a meeting of the Board of Directors or
Committee by means of a
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conference telephone or similar communication equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such
meeting.
ARTICLE III
Officers
Section 1. Immediately after the annual meeting of stockholders the
Board of Directors may elect from among their number a Chairman of the Board
and shall elect from among their number a President. The Board of Directors
shall also appoint a Treasurer and a Secretary, who need not be directors. The
Board of Directors may also appoint an Executive Vice President. The Board of
Directors may also appoint one or more Vice Presidents and such other officers
or assistant officers, none of whom need be directors, as the Board of
Directors may from time to time determine, and may define their duties. Any
two offices except those of President and Vice President may be held by the
same individual.
Section 2. The Chairman of the Board shall, when present, preside at
all meetings of the Board of Directors and the Executive Committee and shall
have such other powers and duties as may be prescribed by the Board. In
absence of the President, the Chairman of the Board shall preside at meetings
of stockholders.
Section 3. The President shall be the Chief Executive Officer of the
Corporation, and subject to the direction of the Board of Directors, shall have
general charge of the business and affairs of the Corporation and shall
exercise all the powers and
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perform all the duties usual to such office, and shall do and perform such
other duties as may from time to time be prescribed for him by the Board of
Directors. The President shall preside at all meetings of stockholders, and in
the absence of the Chairman of the Board, at meetings of the Board of Directors
and the Executive Committee.
Section 4. The Executive Vice President shall be the chief assistant
to the President and shall in the absence or disability of the President
exercise all the powers and duties of the President. He shall also do and
perform such other duties as from time to time may be assigned to him by the
Board of Directors or the President and are incident to the office of Executive
Vice President.
Section 5. The Treasurer shall perform all the duties customary to
that office, and shall have the care and custody of the funds and securities of
the Corporation, and shall have the general supervision of the books of
account, and shall sign checks, drafts, notes and other obligations for the
payment of money, and shall give such bonds for the faithful performance of his
duties as the Board of Directors may determine.
Section 6. The Secretary shall keep the minutes of the Board of
Directors and minutes of the stockholders' meetings, and have the custody of
the seal of the Corporation and affix the same to certificates of stock and
other documents when authorized so to do. He shall perform all of the other
duties usual to that office.
Section 7. The Board of Directors may, at any time, by the vote of a
majority of the entire Board, remove any officer or
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officers, whether or not elected or appointed by the Board of Directors, and
any such removal may be made at the pleasure of the Board, with or without
cause.
ARTICLE IV
Committees
Section 1. Executive Committee: The directors may, by resolution passed
by a majority vote of the entire Board, appoint from their number an Executive
Committee of not less than three (3) members, including the Chairman of the
Board and the President of the Corporation. Such members so appointed to the
Executive Committee shall act during the pleasure of the Board, and in the
direction of the Board they may be appointed to serve for different terms. The
Executive Committee shall report its actions to the Board. A majority of the
members of the Executive Committee shall constitute a quorum, but a less number
may adjourn any meeting, from time to time, and the meeting may be held as
adjourned without further notice. The Executive Committee shall have and may
exercise (during the intervals between meetings of the Board) all the powers of
the Board which may lawfully be delegated, including the power to authorize the
seal of the Corporation to be affixed to papers which may require it, subject
to such limitations as may be provided by resolution of the Board.
Section 2. Audit Committee: The directors shall, by resolution passed
by a majority vote of the whole board, appoint from their number an Audit
Committee of not less than three (3) members, none of whom shall be active as
an officer or employee
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<PAGE> 13
of the Corporation at the time serving on the Committee, and shall designate
the Chairman of the Committee. Such members so appointed to the Audit
Committee shall act during the pleasure of the Board, and in the discretion of
the Board they may be appointed to serve for different terms. The Audit
Committee shall report its actions to the Board. A majority of the members of
the Audit Committee shall constitute a quorum, but a less number may adjourn
any meeting, from time to time, and the meeting may be held as adjourned
without further notice. The Audit Committee shall (a) annually recommend to
the Board of Directors independent public accountants for designation by the
Board as auditors of the books, records and accounts of the Corporation and its
subsidiaries; (b) review the proposed scope of the audit to be made by the
independent public accountants; (c) review the audit report submitted by the
independent public accountants and take such action with respect to such report
as may seem appropriate to the Audit Committee; (d) review the duties and
responsibilities of the internal audit staff; (e) review the annual program for
the internal audit of the operational procedures of the Corporation; (f) review
audit reports submitted by the internal auditing staff; and (g) take such other
action relating to the integrity of the Corporation's books of account and
financial disclosure as may seem appropriate to the Audit Committee to better
assure that the interests of the Corporation are adequately protected.
Section 3. Other Committees. The directors may, by resolution passed
by a majority vote of the whole Board, appoint from their number other
committees of not less than three (3) members.
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Such members so appointed shall act during the pleasure of the Board, and in
the discretion of the Board they may be appointed to serve for different terms.
Such committees may make rules for holding and conducting their meetings and
keep records thereof, and each such committee shall report its actions to the
Board. A majority of the members of any such committee shall constitute a
quorum, except that two members shall constitute a quorum in the case of
committees consisting of only three or four members. Any meeting may be
adjourned in absence of a quorum, from time to time, and the meeting may be
held as adjourned without further notice. Such committees shall have and may
exercise such powers as shall be conferred or authorized by the resolutions
appointing them.
ARTICLE V
Capital Stock
Section 1. Certificates of stock shall be in such form as shall be
approved by the Board of Directors, shall be numbered and registered in the
order in which they are issued, and shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and the seal of the Corporation shall be affixed thereto.
Such seal may be a facsimile, engraved or printed. Where any such certificate
is signed by a transfer agent or transfer clerk and by a registrar, the
signature of any such President, Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer upon such certificate may be
facsimiles, engraved or printed.
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<PAGE> 15
Section 2. Transfers of shares shall be made only upon the books of
the Corporation by the registered holder in person or by attorney, duly
authorized, and on surrender of the certificate or certificates for such
shares, properly assigned for transfer.
Section 3. Any person claiming a certificate of stock to be lost or
destroyed shall make an affidavit or affirmation of that fact, and, if
requested to do so by the Board of Directors, shall advertise such fact in such
manner and/or give the Corporation indemnity in such sum as the Board of
Directors may prescribe.
ARTICLE VI
Bank Depositaries
Section 1. The Chairman, the President, the Executive Vice President
and the Treasurer of the Corporation are each authorized to designate
depositaries for the funds of the Corporation deposited in its name, and the
signatories with respect thereto in each case, and from time to time, to change
such depositaries and signatories, with the same force and effect as if each
such depositary and the signatories with respect thereto and changes therein
had been specifically designated or authorized by the Board of Directors; and
each depositary designated by the Board or by the Chairman, the President, the
Executive Vice President or the Treasurer of the Corporation, shall be entitled
to rely upon the certificate of the Secretary or any Assistant Secretary of the
Corporation setting forth the fact of such designation and of the appointment
of the officers of the Corporation or of other persons who are to be
signatories with respect to the withdrawal of funds deposited with such
depositary, or from time to time the
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fact of any change in any depositary or in the signatories with respect
thereto.
ARTICLE VII
Waivers
Section 1. Whenever under the provisions of any of these By-Laws
action is authorized to be taken after notice to the stockholders or to the
Board of Directors, or after the lapse of a prescribed period of time, such
action may be taken without notice and without the lapse of any period of time,
if at any time before or after such action be completed such requirements be
waived in writing by every stockholder of this Corporation entitled to such
notice or to participate in such action, or by his attorney thereunto
authorized, if such action is to be or has been taken by stockholders, or by
every director of this Corporation, if such action is to be or has been taken
by directors.
ARTICLE VIII
Indemnification of Directors, Officers and Others
Section 1. The Corporation shall indemnify any person who is or was a
director or officer of the Corporation on the basis and to the extent provided
in the Corporation's Articles of Incorporation.
Section 2. The Corporation may indemnify any other person to whom the
Corporation is permitted to provide indemnification by applicable law, on such
basis and to such extent as the corporation in its sole discretion may elect.
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ARTICLE IX
Amendments
Section 1. Subject to the provisions of Section 3 below, these By-Laws
may be altered, amended or repealed at any stockholders meeting by vote of the
holders of a majority of the shares represented at the meeting by stockholders
present in person or by proxy and entitled to vote, provided the notice or
waiver of notice for such meeting contained a reference to the proposed
alteration, amendment or repeal.
Section 2. Subject to the provisions of Section 3 below, the Board of
Directors may also amend these By-Laws at any regular or special meeting, by a
majority vote of the entire Board, but any By-Laws so made by the Board of
Directors may be altered or repealed by the stockholders.
Section 3. Anything in the By-Laws to the contrary notwithstanding:
(i) Section 1 of Article II of these By-Laws may be amended only by the vote of
the holders of two-thirds of all outstanding shares of Common Stock and any
Preferred Stock voting together with the Common Stock as a class, and (ii) so
long as any class of Preferred Stock of the Corporation shall be outstanding,
no alteration, amendment or repeal of the provisions of Section 3, 4 or 6 of
Article I, and Section 4 or 5 of Article II of the By-Laws which affect
adversely the rights or preferences of such class shall be made without the
consent of the holders of at least two-thirds of the outstanding shares of such
class provided, however, that such consent shall not be required for
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any alteration or amendment increasing or reducing the number of directors of
the Corporation.
ARTICLE X
Miscellaneous
The provisions of Article 9A of the North Carolina Business
Corporation Act shall not be applicable to the Corporation.
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<PAGE> 1
EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of April 20, 1994, between
FEDERAL PAPER BOARD COMPANY, INC., a corporation existing under the laws of the
State of North Carolina ("New Federal"), and CHEMICAL BANK (successor by merger
to Manufacturers Hanover Trust Company), a corporation existing under the laws
of the State of New York (the "Trustee").
W I T N E S S E T H :
WHEREAS, Federal Paper Board Company, Inc., a New York corporation
(the "Issuer"), and the Trustee entered into an Indenture dated as of April 1,
1991 (the "Indenture") which provides for issuance from time to time of
unsecured bonds, debentures, notes and other evidences of indebtedness to be
issued in one or more series (the "Securities"); and
WHEREAS, pursuant to its authority under the Indenture, the Issuer has
issued (i) $200,000,000 in aggregate principal amount of its 10% Debentures due
2011, (ii) $50,000,000 in aggregate principal amount of its 8-1/8% Debentures
due 2002, and (iii) $125,000,000 in aggregate principal amount of its 8-7/8%
Debentures due 2012; and
WHEREAS, subject to the provisions thereof, Section 8.1 of the
Indenture permits the Issuer to merge with or into any other entity (such
entity, the "successor entity"); and
WHEREAS, subject to the provisions thereof, Section 8.1 of the
Indenture requires that, in the event of a merger of the Issuer with or into a
successor entity, the assumption by the successor entity of the obligations of
the Issuer under the Indenture be evidenced by a supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the successor entity; and
WHEREAS, subject to the provisions thereof, Section 7.1 of the
Indenture permits the Issuer and the Trustee from time to time and at any time
to enter into an indenture supplemental to the Indenture without the consent of
Securityholders in order to evidence the succession of a successor entity to
the Issuer and the assumption by the successor entity of the covenants,
agreements and obligations of the Issuer contained in the Indenture and the
Securities; and
WHEREAS, pursuant to that certain Agreement of Merger, dated as of
January 20, 1994, between the Issuer and New Federal, the Issuer has merged
with and into New Federal (the "Merger") as of the date hereof; and
WHEREAS, all things necessary to make the Securities issued under the
Indenture as hereby supplemented the valid obligations of New Federal and to
make the Indentures as hereby supplemented
<PAGE> 2
a valid agreement of New Federal in accordance with their and its terms, have
been done.
NOW, THEREFORE, New Federal and the Trustee mutually covenant and
agree as follows:
ARTICLE I
Succession of New Federal to the Issuer
Section 1.01. Assumption. New Federal hereby expressly assumes the
due and punctual payment of the principal of and interest, if any, on all of
the Securities, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of the Indenture and in
the Securities to be performed by the Issuer. New Federal hereby acknowledges
and agrees that all references in the Indenture to "the Issuer" shall be deemed
to be references to New Federal as the surviving corporation of the Merger.
Section 1.02. Securities. Any Security delivered after the date
of this First Supplemental Indenture in substitution or exchange for any
outstanding Security as provided in the Indenture may be executed and delivered
by New Federal in its own name, and regardless of whether executed in the name
of New Federal or the Issuer, each such Security shall constitute the
obligation of New Federal.
Section 1.03. Defaults. New Federal represents that immediately
after giving effect to the merger no Event of Default and no event which, after
notice or lapse of time, or both, would become an Event of Default, has
happened and is continuing.
ARTICLE II
Miscellaneous
Section 2.01. Instruments to be Read Together. This first
Supplemental Indenture is an indenture supplemental to the Indenture, and said
Indenture and this First Supplemental Indenture shall henceforth be read
together.
Section 2.02. Acceptance of Trusts. The Trustee accepts the trusts
created by the Indenture, as supplemented by this First Supplemental Indenture,
and agrees to perform the same upon the terms and conditions in the Indenture,
as supplemented by this First Supplemental Indenture.
Section 2.03. Confirmation. The Indenture, as supplemented by this
First Supplemental Indenture, is in all respects confirmed and ratified. This
First Supplemental Indenture shall be effective as of the date hereof which is
the date of effectiveness of the merger.
Section 2.04. Effect on the Holders of Securities. This First
Supplemental Indenture shall form a part of the Indenture
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for all purposes, and every holder of Securities heretofore or hereafter
authenticated and delivered shall be bound hereby.
Section 2.05. Definitions. Except as otherwise defined herein or
unless the context otherwise requires, capitalized terms used herein and
defined in the Indenture shall have the meanings specified in the Indenture.
Section 2.06. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 2.07. Governing Law. This First Supplemental Indenture shall
be deemed to be a counterpart under the laws of the State of New York, and for
all purposes shall be construed in accordance with and governed by the laws of
such State, except as may otherwise be required by mandatory provisions of the
law.
Section 2.08. Successors and Assigns of New Federal Bound by
Indenture. All the covenants, stipulations, promises and agreements in the
Indenture and this First Supplemental Indenture concerning the Issuer shall
bind the successors and assigns of New Federal, whether so expressed or not.
Section 2.09. Effect of Headings. The article and section headings
herein are for convenience only, are not to be considered a part hereof and
shall no affect the construction hereof.
Section 2.10. Recitals. The recitals contained herein shall be taken
as the statements of New Federal and the Trustee assumes no responsibility for
their correctness. The Trustees make no representations as to the validity or
sufficiency of this First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the date first set forth above.
FEDERAL PAPER BOARD COMPANY, INC.
[Seal]
By /s/ Q.J. Kennedy
--------------------------------
Name: Quentin J. Kennedy
Title: Executive Vice President
CHEMICAL BANK (successor by merger to
Manufacturers Hanover Trust
Company), as Trustee
[Seal]
By /s/ Carolyn P. Baxter
--------------------------------
Name: Carolyn P. Baxter
Title: Assistant Vice President
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