SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 14, 1994
THE PITTSTON COMPANY
(Exact Name of registrant as specified in its charter)
Virginia 1-9148 54-1317776
(State or other (Commission (I.R.S. Employer
jurisdiction File Number) Identification No.)
of Incorporation)
100 First Stamford Place
P. O. Box 120070
Stamford, Connecticut 06912-0070
(Address of principal (Zip Code)
executive offices)
(203)978-5200
(Registrant's telephone number, including area code)
<PAGE>
Item 2. Acquisition or Disposition of Assets
The Pittston Company ("Pittston") has announced
that a subsidiary of its Pittston Minerals Group has
completed its previously reported purchase of substantially
all of the coal mining assets and coal sales contracts of
Addington Resources, Inc. (the "Acquisition"). Filed as an
exhibit to this report and incorporated herein by reference
is Pittston's press release dated January 14, 1994, announc-
ing completion of the purchase. Further reference is made
to Pittston's current report on Form 8-K dated December 20,
1993, concerning the Acquisition and containing financial
information with respect thereto; such report is incorpo-
rated herein by reference.
Item 5. Other Events
On January 27, 1994, Pittston completed an
$80,500,000 private issue of 1,610,000 Depositary Shares.
Each Depositary Share represents a one-tenth interest in
Pittston's $31.25 Series C Cumulative Convertible Preferred
Stock (the "Series C Preferred Stock") and has a liquidation
preference of $50.00. The Depositary Shares are con-
vertible, after March 11, 1994, into Pittston's Minerals
Group Common Stock ("Minerals Stock") at a conversion price
of $32.175 per share of Minerals Stock. The Depositary
Shares are not redeemable prior to February 1, 1997.
Pittston plans to use the net proceeds from the issue to
finance a portion of the purchase price of the Acquisition.
On January 19, 1994, Pittston filed an amendment
to its Restated Articles of Incorporation reflecting the
terms of the Series C Preferred Stock. The text of the
amendment is filed as an exhibit to this report and is
incorporated herein by reference.
The Restated Articles of Incorporation of
Pittston, as amended, are filed as an exhibit to this report
and incorporated herein by reference.
EXHIBITS
1. Registrant's press release dated January 14, 1994.
2. Text of amendment filed January 19, 1994 to Registrant's
Restated Articles of Incorporation
3. Registrant's Restated Articles of Incorporated, as
amended through January 19, 1994
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned
hereunto duly authorized.
THE PITTSTON COMPANY
(Registrant)
Austin F. Reed
By____________________________
Vice President
Date: January 28, 1994<PAGE>
EXHIBIT INDEX
Exhibit
3(a) Registrant's Restated Articles of
Incorporation, as amended
through January 19, 1994
3(a)-1 Text of January 19, 1994 Amendment
to Registrant's Restated Articles
of Incorporation
99 Registrant's press release dated
January 14, 1994
January 14, 1994
PITTSTON ANNOUNCES COMPLETION
OF ACQUISITION OF ADDINGTON
COAL OPERATIONS
Stamford, CT -- January 14, 1994 - The Pittston Company announced
today the completion of the acquisition by a subsidiary of the
Pittston Minerals Group (NYSE - PZM) of substantially all of the
coal mining assets and coal sales contracts of Addington Resources,
Inc. (NASDAQ National Market - ADDR) through the acquisition of
five of its corporate subsidiaries. As previously announced, this
acquisition will significantly increase Pittston Minerals' sales
and production of steam coal.
Pittston also announced that a portion of the acquisition cost is
expected to be financed by a new issue of convertible preferred
stock which is scheduled to close in the near future.
* * * * *
Pittston Minerals Group Common Stock (NYSE - PZM) and Pittston
Services Group Common Stock (NYSE - PZS) represent the two classes
of common stock of The Pittston Company, a diversified firm with
interests in coal and gold mining, security services through
Brink's, Incorporated and Brink's Home Securitiy, Inc. and
airfreight and logistics management services through Burlington Air
Express Inc.
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
THE PITTSTON COMPANY
SETTING FORTH THE POWERS, PREFERENCES,
RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS OF THE COMPANY'S $31.25 SERIES C
CUMULATIVE CONVERTIBLE PREFERRED STOCK
Pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, The Pittston Company (the "Corporation"), a
corporation organized and existing under the Virginia Stock
Corporation Act, in accordance with Section 13.1-604 thereof, DOES
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors of the Corporation by Division II of Article III of
the Restated Articles of Incorporation, as amended, of the
Corporation (the "Articles of Incorporation"), the Board of
Directors of the Corporation, through the Executive Committee
thereof to which proper authority had been granted, on January 11,
1994 duly adopted the following resolution creating a series of
Preferred Stock designated as $31.25 Series C Cumulative
Convertible Preferred Stock:
RESOLVED that, pursuant to the authority vested in the
Board of Directors of the Corporation, Division II of Article III
of the Articles of Incorporation of the Corporation be, and it
hereby is, amended to provide the designation, rights, preferences,
limitations and relative rights of a series of Preferred Stock of
the Corporation, which amendment shall be accomplished by adding
the following text at the end of Division II of Article III of the
Articles of Incorporation:
C. $31.25 Series C Cumulative Convertible Preferred Stock
1. Designation and Number of Shares. The shares of
such series shall be designated "$31.25 Series C Cumulative
Convertible Preferred Stock" (hereinafter called "this Series").
The number of shares constituting this Series is 161,000. Shares
of this Series shall have a stated capital of $10.00 per share.
The number of authorized shares of this Series may be reduced by
further resolution adopted by the Board of Directors and by the
filing of articles of amendment pursuant to the provisions of the
Virginia Stock Corporation Act stating that such reduction has been
so authorized, but the number of authorized shares of this Series
shall not be so increased.
<PAGE>
2. Dividends.
(a) The annual dividend for each share of this Series
shall be $31.25. Such dividends shall be cumulative from the date
of original issue of such shares, and shall be payable, in cash,
when, as and if declared by the Board of Directors, out of funds
legally available for such purpose on the first calendar day of
March, June, September and December of each year, commencing
March 1, 1994; provided, however, that if any such date is a
Saturday, Sunday or legal holiday, then such dividend shall be
payable on the next calendar day which is not a Saturday, Sunday or
legal holiday.
(b) Each dividend on shares of this Series shall be paid
to the holders of record of such shares as they appear on the stock
transfer books of the Corporation on such record date, not
exceeding 70 days preceding the payment date thereof, as shall be
fixed by the Board of Directors. Dividends in arrears for any past
dividend period or any part thereof may be declared and paid at any
time, without reference to any regular dividend payment date, to
holders of record on such date, not exceeding 70 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(c) Except as hereinafter provided, no dividends shall
be declared or paid or set apart for payment on the Preferred Stock
of any series ranking substantially equal ("parity") or junior to
this Series as to dividends for any period unless full cumulative
dividends have been or contemporaneously are declared and paid on
this Series for all past dividend periods. When dividends are not
paid in full, as aforesaid, upon the shares of this Series, all
dividends declared upon shares of this Series and any other
Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends
per share on this Series and such other Preferred Stock shall in
all cases bear to each other the same ratio that accrued dividends
per share on the shares of this Series and such other Preferred
Stock bear to each other. Holders of shares of this Series shall
not be entitled to any dividends, whether payable in cash, property
or stock, in excess of full cumulative dividends, as herein
provided, on this Series. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or
payments on this Series which may be in arrears.
(d) So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common Stock or
in any other stock of the Corporation ranking junior to this Series
as to dividends and upon liquidation and other than as provided in
Section 2(c)) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or any
other stock of the Corporation ranking junior to, or on a parity
with, this Series as to dividends or upon liquidation, nor shall
any Common Stock nor any other stock of the Corporation ranking
junior to, or on a parity with, this Series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by
the Corporation (except by conversion into or exchange for stock of
the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of this Series shall have been
paid or contemporaneously are declared and paid for all past
dividend periods.
(e) Dividends payable on this Series for each full
quarterly dividend period shall be computed by dividing the annual
dividend by four. Dividends payable on this Series for any period
shorter or longer than a full quarterly dividend period, including
for the initial dividend period, shall be computed on the basis of
a 360-day year of twelve 30-day months.
3. Optional Redemption. Except as provided in
Section 4, the shares of this Series shall not be redeemable by the
Corporation prior to February 1, 1997. On and after February 1,
1997, shares of this Series may be redeemed, in whole at any time
or in part from time to time, at the option of the Corporation, out
of funds legally available for such purpose, for cash in an amount
equal to the following Redemption Prices if redeemed during the
twelve-month period beginning February 1 of the year indicated
below, upon giving notice as provided in Section 5:
Year Redemption Price
1997 $521.875
1998 518.750
1999 515.625
2000 512.500
2001 509.375
2002 506.250
2003 503.125
2004 and thereafter 500.000
plus, in each case, an amount equal to accrued and unpaid dividends
thereon to the date fixed for redemption.
4. Mandatory Redemption.
(a) Acquisition Redemption. If the Acquisition is not
consummated on or prior to March 1, 1994, shares of this Series
shall be redeemed by the Corporation, in whole, out of funds
legally available for such purpose, for cash in an amount equal to
the Redemption Price plus an amount equal to accrued and unpaid
dividends thereon to the date fixed for redemption (such a
redemption is hereinafter referred to as an "Acquisition
Redemption"). The Redemption Date of shares of this Series
pursuant to this Section 4(a) shall be on or prior to March 11,
1994, as fixed by the Board of Directors.
(b) Pittston Minerals Group Special Events. If (i) the
Corporation or any of its Subsidiaries shall enter into a
transaction or series of transactions resulting in the Disposition
of all or substantially all of the properties and assets of
Pittston Minerals Group under circumstances where the Corporation
is not required to exchange outstanding shares of Minerals Stock
for shares of Services Stock or other common stock (other than
Minerals Stock) pursuant to Section 2(b) of Division I of
Article III of these Articles of Incorporation or (ii) the
Corporation shall pay a dividend on, or the Corporation or any of
its Subsidiaries shall consummate a tender offer or exchange offer
for, Minerals Stock, and the aggregate amount of such dividend or
the consideration paid in such tender offer or exchange offer is an
amount equal to all or substantially all of the properties and
assets of Pittston Minerals Group (the events described in
clauses (b)(i) and (ii) above are hereinafter collectively referred
to as the "Pittston Minerals Group Special Events"), the
Corporation shall redeem shares of this Series, in whole, within 60
days following any such Pittston Minerals Group Special Event, for
cash in the amount equal to the Redemption Price, plus an amount
equal to accrued and unpaid dividends thereon to the date fixed for
redemption. The Redemption Date on shares of this Series pursuant
to this Section 4(b) shall be (A) the consummation date of the
Disposition or the dividend payment date if such Pittston Minerals
Group Special Event involves a Disposition or the payment of a
dividend, respectively, or (B) the consummation date of the tender
offer or exchange offer if such Pittston Minerals Group Special
Event involves a tender offer or exchange offer, respectively. Any
redemption pursuant to this Section 4(b) shall be conditioned upon
the consummation of such Disposition, the payment of such dividend
or the consummation of such tender offer or exchange offer, as the
case may be.
In the event of a Disposition by the Corporation of any
equity interest in any person, entity or group in which the
Corporation, directly or indirectly, owned a majority equity
interest as of the date of such Disposition, which person, entity
or group owned properties and assets of Pittston Minerals Group as
of such date (a "Pittston Minerals Group Company"), to holders of
all the outstanding shares of Minerals Stock on a pro rata basis,
solely for the purpose of determining whether a Disposition of all
or substantially all of the properties and assets of Pittston
Minerals Group pursuant to clause (b)(i) above has occurred, a
Disposition of the properties and assets of such Pittston Minerals
Group Company shall only be deemed to have occurred if the
Corporation, directly or indirectly, owns less than 20% of the
entire equity interest in such Company immediately after the
occurrence of such Disposition.
If the Corporation exchanges all outstanding shares of
Minerals Stock for shares of Services Stock pursuant to Section 2
of Division I of Article III of these Articles of Incorporation
and, subsequent to such exchange, any event substantially similar
to any Pittston Minerals Group Special Event occurs in respect to
Services Stock, at which time there is another class of Common
Stock outstanding other than Services Stock, the Corporation shall
redeem the shares of this Series, in whole, for cash in the amount
equal to the Redemption Price, plus an amount equal to accrued and
unpaid dividends thereon to the date fixed for redemption. The
Redemption Date shall occur, and the conditions in respect thereof,
shall be determined in the manner described above with respect to
any redemption resulting from any substantially similar Pittston
Minerals Group Special Event.
5. General Redemption Provisions. The following
general redemption provisions shall apply, as the context requires,
to any redemption of any shares of this Series pursuant to Sections
3 and 4:
(a) In the event that fewer than all the outstanding
shares of this Series are to be redeemed, the number of shares
to be redeemed shall be determined by the Board of Directors
and the shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board of Directors or by
any other method as may be determined by the Board of
Directors in its sole discretion to be equitable; provided,
however, that the Corporation may redeem any number of shares
of this Series owned by holders whose aggregate holdings of
such shares do not exceed 100 as may be specified by the
Corporation.
(b) In the event the Corporation shall redeem shares of
this Series pursuant to Section 3, notice of such redemption
shall be given, on a date at least 30 days but not more than
60 days prior to the date fixed for such redemption by the
Board of Directors, to each holder of record of the shares of
this Series to be redeemed. Notice of an Acquisition
Redemption pursuant to Section 4(a) shall be given not less
than 10 days prior to the date fixed for such redemption by
the Board of Directors to each holder of record of the shares
of this Series. Notice of redemption in connection with any
Pittston Minerals Group Special Event shall be given (i) if
such Event involves a Disposition or the payment of a
dividend, not less than 45 days prior to the date selected by
the Board of Directors for the consummation of such
Disposition or the payment of such dividend or (ii) if such
Event involves a tender offer or exchange offer, on the date
of public announcement thereof (but in any event not less than
30 days prior to such redemption). Such notice shall be given
by first class mail, postage prepaid, at such holder's address
as the same appears on the stock transfer books of the
Corporation. Neither the failure to mail, to any particular
holder, any notice required by this Section 5(b) nor any
defect therein or in the mailing thereof shall affect the
sufficiency of the notice or the validity of the proceedings
for redemption with respect to any other holder. Any notice
which was mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date
mailed whether or not the holder receives the notice. Each
such notice shall state as appropriate: (i) the Redemption
Date; (ii) the number of shares of this Series to be redeemed
and, if fewer than all the shares held by such holder are to
be redeemed, the number or proportion of such shares to be
redeemed from such holder; (iii) the Redemption Price to be
paid in respect of the redemption; (iv) the place or places
where certificates for such shares are to be surrendered for
the payment of the Redemption Price; (v) whether the
Corporation is depositing with a bank or trust company on or
before the applicable Redemption Date as provided in
Section 5(d) an adequate amount of money for the payment of
the Redemption Price and, if so, the proposed date of such
deposit; (vi) the then current Conversion Price (including, to
the extent any event then known to the Corporation will result
in an adjustment to the Conversion Price on or prior to the
Redemption Date, such adjusted Conversion Price and date of
such adjustment) and the date on which the right of holders to
convert shall terminate; (vii) the amount of accrued and
unpaid dividends in respect of the shares of this Series to be
redeemed; and (viii) that dividends on shares of this Series
to be redeemed shall cease to accrue on the Redemption Date.
(c) Notice having been given as provided in Section
5(b), from and after the Redemption Date (unless default shall
be made by the Corporation in providing an adequate amount of
money for the payment of the Redemption Price necessary to
effect such redemption in accordance with the terms hereof)
(i) dividends on the shares of this Series so called for
redemption shall cease to accrue, (ii) such shares shall no
longer be deemed to be outstanding and (iii) all rights of the
holders thereof as holders of shares of this Series shall
cease (except the right to receive from the Corporation the
Redemption Price, without interest thereon, upon surrender and
endorsement of their certificates). Upon surrender in
accordance with said notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer,
unless the Corporation shall waive such requirement), such
shares shall be so redeemed by the Corporation.
(d) The Corporation's obligation to provide an adequate
amount of money for the payment of the Redemption Price
necessary to effect any redemption in accordance with Sections
3 and 4 shall be deemed fulfilled if, on or before the
applicable Redemption Date, the Corporation shall deposit with
a bank or trust company that has an office in the Borough of
Manhattan, City of New York, and that has, or is an affiliate
of a bank or trust company that has, a capital and surplus of
at least $50,000,000, an amount of money adequate for the
payment of the aggregate Redemption Price necessary for such
redemption in accordance with the terms hereof, in trust, with
irrevocable instructions that such money be applied to the
redemption of the shares of this Series so called for
redemption. No interest shall accrue for the benefit of the
holders of shares of this Series to be redeemed on any money
so payable by the Corporation in respect of any redemption.
Subject to applicable escheat laws, any money unclaimed at the
end of two years from the related Redemption Date shall revert
to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look
only to the general funds of the Corporation for the payment
of such money. In case fewer than all the shares of this
Series represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(e) Any shares of this Series which shall at any time
have been redeemed shall, upon the taking of any action
required by law, have the status of authorized but unissued
shares of Preferred Stock, without designation as to series
until such shares are once more designated as part of a
particular series by the Board of Directors.
(f) Notwithstanding the foregoing provisions of Sections
3 through 5, unless the full cumulative dividends on all
outstanding shares of this Series shall have been paid or
contemporaneously are declared and paid for all past dividend
periods, the Corporation may not (i) redeem in part shares of
this Series other than on a pro rata basis or (ii) purchase or
otherwise acquire any shares of this Series other than
pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of this Series.
6. Conversion. Holders of shares of this Series shall
have the right to convert all or a portion of such shares into
shares of Minerals Stock in accordance with the provisions of this
Section 6. For purposes of this Section 6, references to shares of
this Series shall apply equally to fractional shares thereof, but
only to the extent such fractional shares are integral multiples of
one-tenth of one share of this Series.
(a) Subject to and upon compliance with the provisions
of this Section 6, a holder of shares of this Series shall have the
right, at such holder's option, at any time after March 11, 1994,
to convert such shares into the number of fully paid and
nonassessable shares of Minerals Stock equal to the quotient of (i)
the product of the initial liquidation preference for shares of
this Series of $500.00 per share times the number of shares of this
Series to be converted, divided by (ii) the Conversion Price (as in
effect on the date provided for in the last paragraph of Section
6(b)) by surrendering the certificates representing such shares to
be converted, such surrender to be made in the manner provided in
accordance with this Section 6; provided, however, that the right
to convert shares of this Series called for redemption pursuant to
(A) Sections 3, 4(a) and 4(b) (but, in the case of Section 4(b),
only to the extent the Pittston Minerals Group Special Event does
not involve the payment of a dividend) shall terminate at the close
of business on the related Redemption Date or (B) Section 4(b) (but
only to the extent the Pittston Minerals Group Special Event
involves the payment of a dividend) shall terminate on the 31st day
prior to the date selected by the Board of Directors for the
payment of such dividend, unless the Corporation shall default in
making payment of any moneys payable upon such redemption under
Sections 3 and 4.
(b) In order to exercise the conversion right, the
holder of any shares of this Series to be converted shall surrender
the certificate representing such shares, duly endorsed or assigned
to the Corporation or in blank, at the office of the Transfer
Agent, accompanied by written notice to the Corporation that the
holder thereof elects to convert such shares or a specified portion
thereof. Unless the shares issuable on conversion are to be issued
in the same name as the name in which such shares of this Series
are registered, any shares surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or such holder's duly
authorized attorney and an amount sufficient to pay any transfer or
similar tax (or evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid).
Holders of shares of this Series at the close of business
on a record date for determining shareholders entitled to receive
a dividend shall be entitled to receive the dividend payable on
such shares on the corresponding dividend payment date (except that
holders of shares called for redemption on a Redemption Date
occurring between the close of business on such record date and the
opening of business on such dividend payment date shall not be
entitled to receive such dividend on such dividend payment date)
notwithstanding the conversion thereof following the close of
business on such dividend record date and prior to the opening of
business on such dividend payment date. However, shares of this
Series surrendered for conversion during the period between the
close of business on such dividend record date and the opening of
business on such dividend payment date (except shares called for
redemption on a Redemption Date during such period) must be
accompanied by payment of an amount equal to the dividend payable
on such shares on such dividend payment date. A holder of shares
of this Series on a dividend record date who (or whose transferee)
tenders any such shares for conversion into shares of Minerals
Stock on a dividend payment date will receive the dividend payable
by the Corporation on such shares of this Series on such date, and
the converting holder need not include payment of the amount of
such dividend upon surrender of such shares for conversion. Except
as provided above, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the shares of Minerals Stock
issued upon such conversion.
As promptly as practicable after the surrender of
certificates for shares of this Series as aforesaid, the
Corporation shall issue and shall deliver at such office to such
holder, or on such holder's written order, a certificate or
certificates for the number of full shares of Minerals Stock
issuable upon the conversion of such shares in accordance with the
provisions of this Section 6, and any fractional interest in
respect of a share of Minerals Stock arising upon such conversion
shall be settled as provided in Section 6(c).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the
certificates for shares of this Series shall have been surrendered
and the notice referred to in the third preceding paragraph (and,
if applicable, payment of an amount equal to the dividend payable
on such shares as described in the second preceding paragraph)
shall have been received by the Corporation as aforesaid, and the
person or persons in whose name or names any certificate or
certificates for shares of Minerals Stock shall be issuable upon
such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby at such time on
such date and such conversion shall be at the Conversion Price in
effect at such time on such date.
(c) No fractional shares or scrip representing fractions
of shares of Minerals Stock or any other Common Stock of the
Corporation shall be issued upon conversion of any share of this
Series. Instead of any fractional interest in a share of Minerals
Stock or such other Common Stock that would otherwise be
deliverable upon the conversion of a share of this Series, the
Corporation shall pay to the holder of such share an amount in cash
based upon the Closing Price of Minerals Stock or such other Common
Stock on the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for
conversion at one time by the same holder, the number of full
shares of Minerals Stock or such other Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate
number of shares of this Series so surrendered.
(d) The Conversion Price per share of Minerals Stock
shall be adjusted from time to time as follows:
(i) If the Corporation shall, after the date on which
shares of this Series are initially issued, (A) pay a dividend
or make a distribution on any class of its capital stock in
shares of Minerals Stock, (B) subdivide the outstanding
Minerals Stock into a greater number of shares or (C) combine
the outstanding Minerals Stock into a smaller number of
shares, then the Conversion Price in effect at the opening of
business on the day next following the date fixed for the
determination of shareholders entitled to receive such
dividend or distribution or at the opening of business on the
day next following the day on which such subdivision or
combination becomes effective, as the case may be, shall be
adjusted so that the holder of any share of this Series
thereafter surrendered for conversion shall be entitled to
receive the number of shares of Minerals Stock that such
holder would have owned or have been entitled to receive after
the happening of any of the events described above had such
share been converted immediately prior to the record date in
the case of a dividend or distribution or the effective date
in the case of a subdivision or combination. An adjustment
made pursuant to this Section 6(d)(i) shall become effective
immediately after the opening of business on the day next
following the record date (except as provided in Section 6(m))
in the case of a dividend or distribution and shall become
effective immediately after the opening of business on the day
next following the effective date in the case of a subdivision
or combination.
(ii) If the Corporation shall issue, after the date on
which shares of this Series are initially issued, rights or
warrants (other than any rights or warrants (including
Minerals Rights) referred to in Section 6(d)(iii) below) to
all holders of Minerals Stock entitling them (for a period
expiring within 45 days after the record date mentioned below)
to subscribe for or purchase Minerals Stock at a price per
share less than the Current Market Price per share of Minerals
Stock on the record date for the determination of shareholders
entitled to receive such rights or warrants, then the
Conversion Price in effect at the opening of business on the
day next following such record date shall be adjusted to equal
the price determined by multiplying (A) the Conversion Price
in effect immediately prior to the opening of business on the
day next following the date fixed for such determination by
(B) a fraction, the numerator of which shall be the sum of
(I) the number of shares of Minerals Stock outstanding on the
close of business on the date fixed for such determination and
(II) the number of shares that the aggregate proceeds to the
Corporation from the exercise of such rights or warrants for
Minerals Stock would purchase at such Current Market Price and
the denominator of which shall be the sum of (x) the number of
shares of Minerals Stock outstanding on the close of business
on the date fixed for such determination and (y) the number of
additional shares of Minerals Stock offered for subscription
or purchase pursuant to such rights or warrants. Such
adjustment shall become effective immediately after the
opening of business on the day next following such record date
(except as provided in Section 6(m)). In determining whether
any rights or warrants entitle the holders of Minerals Stock
to subscribe for or purchase shares of Minerals Stock at less
than the Current Market Price thereof, there shall be taken
into account any consideration received by the Corporation
upon issuance and upon exercise of such rights or warrants,
the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(iii) If the Corporation shall distribute to all holders
of Minerals Stock any shares of capital stock (other than
Common Stock of the Corporation), evidences of indebtedness,
cash or other assets of the Corporation (including securities,
but excluding (A) any dividend or distribution referred to in
Section 6(d)(i), (B) any rights or warrants referred to in
Section 6(d)(ii) or in the second paragraph of this Section
6(d)(iii), (C) any dividend or distribution paid exclusively
in cash or (D) any stocks, securities or other property
received as a result of a transaction referred to in Section
6(f)) (any of the foregoing being hereinafter referred to in
this Section 6(d)(iii) as the "Securities"), then in each such
case the Conversion Price shall be adjusted so that it shall
equal the price determined by multiplying (I) the Conversion
Price in effect immediately prior to the close of business on
the date fixed for the determination of shareholders entitled
to receive such distribution by (II) a fraction, the numerator
of which shall be the Current Market Price per share of the
Minerals Stock on the record date mentioned below less the
then fair market value (as determined by the Board of
Directors) of the portion of the Securities so distributed to
one share of Minerals Stock and the denominator of which shall
be the Current Market Price per share of the Minerals Stock on
the record date mentioned below. Such adjustment shall become
effective immediately at the opening of business on the day
next following the record date for the determination of
shareholders entitled to receive such distribution (except as
provided in Section 6(m)).
With respect to the Amended and Restated Rights Agreement
dated as of July 26, 1993 (as amended, further restated or
otherwise modified from time to time, the "Restated Rights
Agreement") between the Corporation and Chemical Bank (terms
used in this paragraph and not otherwise defined herein have
the meanings ascribed thereto in the Restated Rights
Agreement), the Conversion Price will be adjusted only when
Minerals Rights issuable pursuant thereto become exercisable
after the Corporation's right of redemption thereunder has
expired. Subject to the foregoing, upon the later to occur of
the Distribution Date and a Triggering Event (the "Adjustment
Date"), the Conversion Price in effect at the opening of
business on the Adjustment Date shall be adjusted to equal the
price determined by multiplying (A) such Conversion Price by
(B) a fraction, the numerator of which shall be equal to the
Current Market Price per share of Minerals Stock on the
Trading Day immediately prior to the Adjustment Date less an
amount equal to the quotient of (I) the aggregate fair market
value on the Adjustment Date (as determined by the Board of
Directors) of Minerals Rights distributed under the Restated
Rights Agreement divided by (II) the number of shares of
Minerals Stock outstanding on the Trading Date immediately
prior to the Adjustment Date and the denominator of which
shall be equal to such Current Market Price per share of
Minerals Stock. Such adjustment shall become effective
immediately after the opening of business on the day next
following such Adjustment Date.
(iv) If the Corporation shall, by dividend or otherwise,
at any time distribute to all holders of Minerals Stock cash
(excluding any regular quarterly dividend payable solely in
cash, any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to Section
6(d)(iii) and cash that is distributed in a merger or
consolidation to which Section 6(f) applies) in an aggregate
amount that, together with (A) the aggregate amount of any
other distributions to all holders of Minerals Stock made
exclusively in cash (to which this Section 6(d)(iv) would
otherwise apply) within the 12 months preceding the date of
payment of such distribution and in respect of which no
Conversion Price adjustment has been made and (B) all Excess
Purchase Payments in respect of each tender offer or exchange
offer for, or other negotiated purchase of, Minerals Stock
concluded by the Corporation or any of its Subsidiaries within
the 12 months preceding the date of payment of such
distribution and in respect of which no Conversion Price
adjustment has been made, exceeds an amount equal to 12 1/2% of
the product of the Current Market Price per share of Minerals
Stock on the date fixed for determination of holders of
Minerals Stock entitled to receive such distribution times the
number of shares of Minerals Stock outstanding on such date,
then the Conversion Price shall be adjusted so that it shall
equal the price determined by multiplying (A) such Conversion
Price in effect immediately prior to the Conversion Price
adjustment contemplated by this Section 6(d)(iv) by (B) a
fraction, the numerator of which shall be the Current Market
Price per share of Minerals Stock on the date fixed for
determination of holders of Minerals Stock entitled to receive
such distribution less that combined amount of such cash and
such Excess Purchase Payments so distributed applicable to one
share of Minerals Stock and the denominator of which shall be
such Current Market Price per share of Minerals Stock on such
date of determination. Such adjustment shall become effective
immediately prior to the opening of business on the day next
following the date fixed for such determination.
(v) In case the Corporation or any of its Subsidiaries
makes a tender offer or exchange offer for, or other
negotiated purchase of, all or any portion of Minerals Stock,
if the aggregate amount of any Excess Purchase Payment,
together with (A) the aggregate amount of any distributions
made to all holders of Minerals Stock made exclusively in cash
(excluding any regular quarterly dividend payable solely in
cash, any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to Section
6(d)(iii) and cash that is distributed in a merger or
consolidation to which Section 6(f) applies) within the 12
months preceding the consummation of such tender or exchange
offer or other negotiated purchase and in respect of which no
Conversion Price adjustment has been made and (B) all other
Excess Purchase Payments in respect of each tender or exchange
offer for, or other negotiated purchase of, Minerals Stock
concluded by the Corporation or any of its Subsidiaries within
the 12 months preceding the consummation of such tender or
exchange offer or other negotiated purchase and in respect of
which no Conversion Price adjustment has been made, exceeds an
amount equal to 12 1/2% of the product of the Current Market
Price per share of Minerals Stock on the consummation date of
such tender or exchange offer or other negotiated purchase
(any such date, the "Purchase Date") times the number of
shares of Minerals Stock outstanding (including any tendered,
exchanged or purchased shares) on such Purchase Date, then the
Conversion Price shall be adjusted so that it shall equal the
price determined by multiplying (I) such Conversion Price in
effect immediately prior to such Purchase Date by (II) a
fraction, the numerator of which shall be the Current Market
Price per share of Minerals Stock on such Purchase Date less
the combined amount of Excess Purchase Payments and such cash
so distributed applicable to one share of Minerals Stock and
the denominator of which shall be such Current Market Price
per share on such Purchase Date. Such adjustment shall become
effective immediately prior to the opening of business on the
day next following such Purchase Date.
(vi) The Corporation from time to time may reduce the
Conversion Price by any amount for any period of at least 20
business days (or such other period as may then be required by
applicable law), provided that the Board of Directors shall
have determined that such reduction is in the best interests
of the Corporation. No reduction in the Conversion Price
pursuant to this Section 6(d)(vi) shall become effective
unless the Corporation shall have mailed a notice, at least 15
days prior to the date on which such reduction is scheduled to
become effective, to each holder of shares of this Series.
Such notice shall be given by first class mail, postage
prepaid, at such holder's address as the same appears on the
stock transfer books of the Corporation. Such notice shall
state the amount per share by which the Conversion Price will
be reduced and the period for which such reduction will be in
effect.
(vii) The Corporation may make such reductions in the
Conversion Price, in addition to those required by Sections
6(d)(i) through (v), as the Board of Directors determines to
be necessary in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights
will not be taxable to the recipients; provided, however, that
any such reduction shall not be effective until written
evidence of the action of the Board of Directors authorizing
such reduction shall be filed with the Secretary of the
Corporation and notice thereof shall have been given by first
class mail, postage prepaid, to each holder of shares of this
Series at such holder's address as the same appears on the
stock transfer books of the Corporation.
(e) No adjustment in the Conversion Price shall be
required unless such adjustment would require a cumulative increase
or decrease of at least 1% in such Price; provided, however, that
any adjustments that by reason of this Section 6(e) are not
required to be made shall be carried forward and taken into account
in any subsequent adjustment until made; provided, further, that
any adjustment shall be required and made in accordance with the
provisions of this Section 6 (other than this Section 6(e)) not
later than such time as may be required in order to preserve the
tax-free nature of a distribution to the holders of shares of
Minerals Stock or any other Common Stock into which shares of this
Series are convertible. Notwithstanding any other provisions of
this Section 6, the Corporation shall not be required to make any
adjustment of any Conversion Price established hereunder for the
issuance of any shares of Common Stock of the Corporation
(including Minerals Stock) pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in
shares of such Common Stock under such plan. All calculations
under this Section 6 shall be made to the nearest 1/100 of a cent
(with $.00005 being rounded upward) or to the nearest 1/10,000 of
a share (with .00005 of a share being rounded upward), as the case
may be.
(f) If the Corporation shall be a party to any
transaction (including, without limitation, a merger or
consolidation of the Corporation and excluding any transaction as
to which Section 6(d) applies), in each case as a result of which
shares of Minerals Stock shall be converted into the right to
receive stock, securities or other property (including cash or any
combination thereof) (each of the foregoing being referred to
herein as a "Transaction"), each share of this Series which is not
converted into the right to receive stock, securities or other
property in connection with such Transaction shall thereafter be
convertible into the kind and amount of shares of stock, securities
and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of
that number of shares or fraction thereof of Minerals Stock into
which one share of this Series was convertible immediately prior to
such Transaction, assuming such holder of Minerals Stock (i) is not
a person with which the Corporation consolidated or into which the
Corporation merged or which merged into the Corporation or to which
such sale or transfer was made, as the case may be (a "Constituent
Person"), or an affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or
amount of stock, securities and other property (including cash)
receivable upon such Transaction (provided that if the kind or
amount of stock, securities and other property (including cash)
receivable upon such Transaction is not the same for each share of
Minerals Stock of the Corporation held immediately prior to such
Transaction by other than a Constituent Person or an affiliate
thereof and in respect of which such rights of election shall not
have been exercised ("non-electing share"), then for the purpose of
this Section 6(f) the kind and amount of stock, securities and
other property (including cash) receivable upon such Transaction by
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).
The Corporation shall not be a party to any Transaction unless the
terms of such Transaction are consistent with the provisions of
this Section 6(f) and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered
into an agreement with the other party or parties to such
transaction for the benefit of the holders of shares of this Series
that will contain provisions enabling the holders of such shares
that remain outstanding after such Transaction to convert into the
consideration received by holders of Minerals Stock at the
Conversion Price in effect immediately prior to such Transaction.
The provisions of this Section 6(f) shall similarly apply to
successive Transactions.
(g) The reclassification of Common Stock into which
shares of this Series are then convertible into securities which
include securities other than such Common Stock (other than any
reclassification upon a consolidation or merger to which Section
6(f) applies) shall be deemed to involve (i) a distribution of such
securities other than such Common Stock to all holders of such
Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of
shareholders entitled to receive such distribution") and (ii) a
subdivision or combination, as the case may be, of the number of
shares of such Common Stock outstanding immediately prior to such
reclassification into the number of shares of such Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be the effective date of such
subdivision or combination).
(h) If the Corporation shall, by dividend or otherwise,
distribute to all holders of Minerals Stock or other class of
Common Stock into which shares of this Series are then convertible
shares of Common Stock other than Minerals Stock or any class of
Common Stock into which shares of this Series are then convertible,
each share of this Series shall be convertible, in addition to the
number of shares of Minerals Stock and/or such other Common Stock
into which such share is then convertible, into the number of
shares of such other Common Stock receivable upon payment of such
distribution to a holder of that number of shares or fraction
thereof of Minerals Stock or such other Common Stock into which one
share of this Series was convertible immediately prior to the
record date fixed for the determination of shareholders entitled to
receive such distribution. Shares of this Series shall become so
convertible immediately after the opening of business on the day
next following such record date (except as provided in Section
6(m)). In addition, a Conversion Price shall be established with
respect to such Common Stock in an amount equal to the quotient of
(i) the initial liquidation preference of $500.00 per share of this
Series divided by (ii) the number of shares or fraction thereof of
such Common Stock that a holder of one share of Minerals Stock or
such other Common Stock into which shares of this Series are then
convertible would be entitled to receive on the payment date for
such distribution from and after any such date of determination of
shareholders entitled to receive such distribution and, thereafter,
Conversion Price adjustments as nearly as equivalent in type as may
be practicable to the adjustments pursuant to Sections 6(d) through
(f) which are to be made in respect of Minerals Stock shall be made
in respect of shares of such Common Stock. Notwithstanding the
foregoing and the provisions of Section 6(d)(iii), if the
Corporation shall make such a distribution in Common Stock and,
thereafter, all the shares of such Common Stock cease to be
outstanding, on the date such shares of Common Stock cease to be
outstanding (x) the shares of this Series shall cease to be
convertible into shares of such Common Stock, (y) a distribution of
shares of such Common Stock shall be deemed to have occurred on
such date and (z) the Conversion Price for the class of Common
Stock upon which such distribution was made, or if no shares of
such class are then outstanding because shares of such class were
exchanged for shares of another class of Common Stock, of such
other class of Common Stock, shall be adjusted in the manner set
forth in Section 6(d)(iii) to the same extent as if shares of the
Common Stock in which such distribution was made were within the
meaning of the term "Securities" in Section 6(d)(iii).
(i) After the date, if any, on which all outstanding
shares of Minerals Stock or of any other Common Stock into which
shares of this Series are then convertible are exchanged for shares
of another class of Common Stock (as provided in Section 2 of
Division I of Article III of these Articles of Incorporation), each
share of this Series shall thereafter be convertible into the
number of shares of such other class of Common Stock receivable
upon such exchange by a holder of that number of shares or fraction
thereof of Minerals Stock and/or such other Common Stock into which
shares of this Series are then convertible into which one share of
this Series was convertible immediately prior to such exchange.
From and after any such exchange, Conversion Price adjustments as
nearly equivalent as may be practicable to the adjustments pursuant
to Sections 6(d) through 6(h) which, prior to such exchange, were
made in respect of Minerals Stock and/or such other Common Stock
into which shares of this Series are then convertible shall instead
be made pursuant to such Sections in respect of shares of such
other class of Common Stock.
(j) Subject to the provisions of Section 6(k), if:
(i) the Corporation takes any action that would require
an adjustment of the Conversion Price pursuant to Sections
6(d) through (i);
(ii) there shall be any consolidation or merger to which
the Corporation is a party and for which approval of any
shareholders of the Corporation is required, or the sale or
transfer of all or substantially all of the assets of the
Corporation or Pittston Minerals Group;
(iii) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; or
(iv) the Corporation or any of its Subsidiaries shall
commence a tender offer or exchange offer for all or a portion
of the outstanding shares of Minerals Stock (or shall amend
any such tender offer or exchange offer),
then the Corporation shall cause to be filed with the Transfer
Agent and shall cause to be mailed to the holders of shares of this
Series at their addresses as shown on the stock transfer books of
the Corporation, as promptly as possible, but at least 15 days
prior to the earliest applicable date hereinafter specified, a
notice stating, as applicable, (A) the proposed record date for a
dividend or distribution or the proposed effective date of a
consolidation, merger, sale, transfer, liquidation, dissolution or
winding up, (B) the date as of which it is expected that holders of
Minerals Stock of record shall be entitled to exchange their shares
of Minerals Stock for securities or other property, if any,
deliverable upon such consolidation, merger, sale, transfer,
liquidation, dissolution or winding up or (C) the date on which
such tender offer or exchange offer commenced, the date on which
such tender offer or exchange offer is scheduled to expire unless
extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto). Failure
to give or receive such notice or any defect therein shall not
affect the legality or validity of the related transaction.
(k) The Corporation shall cause to be filed with the
Transfer Agent and shall cause to be mailed to the holders of
shares of this Series at their addresses as shown on the stock
transfer books of the Corporation notice of its intention (i) to
cause to occur, or to take any action that would result in, any
Pittston Minerals Group Special Event or (ii) to exchange
outstanding shares of Minerals Stock for shares of Services Stock
pursuant to Section 2 of Division I of Article III of these
Articles of Incorporation (which notice shall include the date on
which an exchange of outstanding shares of Minerals Stock for
shares of Services Stock is expected to become effective and the
date as of which it is expected that holders of record of Minerals
Stock shall be entitled to exchange their shares of Minerals Stock
for shares of Services Stock), not less than (A) 45 days prior to
the date selected by the Board of Directors for the consummation of
the Disposition or the payment of a dividend in connection with any
Pittston Minerals Group Special Event involving a Disposition or
the payment of a dividend, respectively, (B) 30 days prior to the
consummation of any tender offer or exchange offer in connection
with any Pittston Minerals Group Special Event involving a tender
offer or exchange offer, respectively, or (C) 30 days prior to the
exchange date for any such exchange. In addition, from and after
any such exchange of outstanding shares of Minerals Stock for
shares of Services Stock, the Corporation shall be required, in
connection with the redemption requirement specified in the third
paragraph of Section 4(b), to give a comparable notice of its
intention to take actions with respect to Services Stock
substantially similar to any Pittston Minerals Group Special Event.
In the event of any conflict between the notice provisions of this
Section 6(k) and Section 6(j) above, the notice provisions of this
Section 6(k) shall govern.
(l) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with the Transfer
Agent an officer's certificate setting forth the Conversion Price
after such adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate shall be prima
facie evidence of the correctness of such adjustment. Promptly
after delivery of such certificate, the Corporation shall prepare
a notice of such adjustment of the Conversion Price setting forth
the adjusted Conversion Price and the effective date of such
adjustment and shall send such notice of such adjustment of the
Conversion Price by first class mail, postage prepaid, to the
holder of each share of this Series at such holder's address as the
same appears on the stock transfer books of the Corporation.
(m) In any case in which Section 6(d) or 6(h) provides
that an adjustment shall become effective on the day next following
a record date for an event, the Corporation may defer until the
occurrence of such event (i) issuing to the holder of any share of
this Series converted after such record date and before the
occurrence of such event the additional shares of Minerals Stock or
any other Common Stock of the Corporation issuable upon such
conversion by reason of the adjustment required by such event over
and above the number of shares of Minerals Stock or such other
Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such holder any amount in cash
in lieu of any fraction thereof pursuant to Section 6(c).
(n) For purposes of this Section 6, the number of shares
of Minerals Stock or any other Common Stock into which shares of
this Series are then convertible at any time outstanding shall not
include any shares of Minerals Stock or such other Common Stock
then owned or held by, or for the account of, the Corporation. The
Corporation shall not pay a dividend or make any distribution on
shares of Minerals Stock or such other Common Stock held in the
treasury of the Corporation.
(o) There shall be no adjustment of the Conversion Price
in case of the issuance of any capital stock of the Corporation in
a reorganization, acquisition or other similar transaction except
as specifically set forth in this Section 6. If any action or
transaction would require adjustment of any Conversion Price
established hereunder pursuant to more than one paragraph of this
Section 6, only the adjustment which would result in the largest
reduction of such Conversion Price shall be made.
(p) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued shares of Minerals Stock
and/or, if the shares of this Series are then convertible into
other Common Stock of the Corporation, such other Common Stock, for
the purpose of effecting conversion of shares of this Series, the
full number of shares of Minerals Stock or such other Common Stock
deliverable upon the conversion of all outstanding shares of this
Series not theretofore converted. For purposes of this
Section 6(p), the number of shares of Minerals Stock or such other
Common Stock that shall be deliverable upon the conversion of all
outstanding shares of this Series shall be computed as if at the
time of computation all such outstanding shares were held by a
single holder.
The Corporation covenants that any shares of Minerals
Stock or other Common Stock of the Corporation issued upon
conversion of shares of this Series shall be validly issued, fully
paid and nonassessable.
(q) The Corporation will pay any and all documentary,
stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Minerals Stock or other securities
or property on conversion of shares of this Series pursuant hereto;
provided, however, that the Corporation shall not be required to
pay any tax that may be payable in respect of any transfer involved
in the issue or delivery of shares of Minerals Stock or other
securities or property in a name other than that of the holder of
such shares to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery
has paid to the Corporation the amount of any such tax or
established, to the reasonable satisfaction of the Corporation,
that such tax has been paid.
7. Voting. The shares of this Series shall not have
any voting rights, either general or special, except as prescribed
by the Virginia Stock Corporation Act and as set forth in this
Section 7.
(a) Unless the vote of the holders of a greater number
of shares shall then be required by the Virginia Stock Corporation
Act, the vote of the holders of at least a majority of all the
shares of this Series at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders
of shares of this Series shall vote together as a separate voting
group, shall be necessary for authorizing, effecting or validating
the amendment, alteration or repeal of any of the provisions of
these Articles of Incorporation or of any article amendatory
thereof or supplemental thereto (including any articles of
amendment or any similar document relating to any series of
Preferred Stock) so as to change the designation, rights,
preferences or limitations of this Series.
(b) Unless the vote of the holders of a greater number
of shares shall then be required by the Virginia Stock Corporation
Act, the vote of the holders of at least a majority of all the
shares of this Series at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders
of shares of this Series shall vote as a separate voting group,
shall be necessary to (i) increase or decrease the number of
authorized shares of Preferred Stock, (ii) create a new class of
stock, or increase the number of authorized shares of any class of
stock, of the Corporation ranking prior or superior ("prior") to,
or on a parity with, the shares of this Series, either as to
dividends or upon liquidation, or (iii) reclassify any of the
outstanding stock of the Corporation into any such prior or parity
shares.
(c) Unless the vote of the holders of a greater number
of shares shall then be required by the Virginia Stock Corporation
Act, the vote of the holders of at least a majority of all the
shares of this Series and all other series of Preferred Stock
ranking on a parity with this Series, either as to dividends or
upon liquidation, at the time outstanding, given in person or by
proxy at a meeting called for the purpose at which the holders of
shares of this Series and such other series of Preferred Stock
shall vote together as a single voting group without regard to
series, shall be necessary for authorizing, effecting or validating
(i) the merger or consolidation of the Corporation into or with any
other corporation or (ii) any statutory share exchange involving
the Corporation, if such merger, consolidation or statutory share
exchange would change the designation, rights, preferences or
limitations of this Series or if, after such merger, consolidation
or statutory share exchange, there shall be outstanding any shares
of any class of stock ranking prior to, or on a parity with, the
shares of this Series as to dividends or upon liquidation or any
obligation or security convertible into or evidencing the right to
purchase any such prior or parity shares (except such stock,
securities or obligations of the Corporation as may have been
outstanding immediately preceding such merger, consolidation or
statutory share exchange).
(d) If, on the date used to determine shareholders of
record for any meeting of shareholders for the election of
directors, a default in preference dividends on the Preferred Stock
shall exist, the number of directors constituting the Board of
Directors shall be increased by two, and the holders of the
Preferred Stock of all series (whether or not the holders of such
series of Preferred Stock would be entitled to vote for the
election of directors if such default in preference dividends did
not exist) shall have the right at such meeting, voting together as
a single voting group without regard to series, to the exclusion of
the holders of Common Stock of the Corporation, to elect two
directors of the Corporation to fill such newly created
directorships. Each director elected by the holders of shares of
Preferred Stock (herein called a "Preferred Director") shall
continue to serve as such director for the full term for which such
director shall have been elected, notwithstanding that prior to the
end of such term a default in preference dividends shall cease to
exist. Any Preferred Director may be removed without cause by, and
shall not be removed without cause except by, the vote of the
holders of record of the outstanding shares of Preferred Stock,
voting together as a single voting group without regard to series,
at a meeting of the shareholders, or of the holders of shares of
Preferred Stock, called for the purpose. So long as a default in
any preference dividends on the Preferred Stock shall exist (i) any
vacancy in the office of a Preferred Director may be filled (except
as provided in the following clause (ii)) by an instrument in
writing signed by the remaining Preferred Director and filed with
the Corporation and (ii) in the case of the removal of any
Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting
together as a single voting group without regard to series, at the
same meeting at which such removal shall be voted. Each director
appointed as aforesaid by the remaining Preferred Director shall be
deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end
and no default in preference dividends shall exist, the number of
directors constituting the Board of Directors shall be reduced by
two. For the purposes hereof, a "default in preference dividends"
on the Preferred Stock shall be deemed to have occurred whenever
the amount of accrued and unpaid dividends upon any series of the
Preferred Stock shall be equivalent to six full quarterly dividends
or more (whether or not consecutive), and, having so occurred, such
default shall be deemed to exist thereafter until, but only until,
all accrued dividends on all shares of Preferred Stock of each and
every series then outstanding shall have been paid for all past
dividend periods.
8. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the holders of
the shares of this Series shall be entitled to receive out of the
assets of the Corporation available for distribution to
shareholders, before any payment or distribution shall be made on
any class of the Common Stock of the Corporation or on any other
class of stock ranking junior to the Preferred Stock upon
liquidation, the amount of $500.00 per share, plus a sum equal to
all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(b) Neither the sale, lease or exchange (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property and assets of the Corporation nor
the merger or consolidation of the Corporation into or with any
other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary,
for the purpose of this Section 8.
(c) After the payment to the holders of the shares of
this Series of the full preferential amounts provided for in
Section 8(a), the holders of shares of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
(d) In the event the assets of the Corporation available
for distribution to the holders of shares of this Series upon any
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to
Section 8(a), no such distribution shall be made on account of any
shares of any other class or series of Preferred Stock ranking on
a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the shares of this Series, ratably, in
proportion to the full distributable amounts for which holders of
all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
9. Ranking. For purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such class or
classes shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, as
the case may be, in preference or priority to the holders of
shares of this Series;
(b) on a parity with the shares of this Series, either
as to dividends or upon liquidation, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share or sinking fund provisions, if
any, are different from those of this Series, if the holders
of such stock shall be entitled to the receipt of dividends or
of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, whether voluntary or
involuntary, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the
holders of such stock and the holders of shares of this
Series; and
(c) junior to shares of this Series, either as to
dividends or upon liquidation, if (i) such class or classes
shall be the Series A Participating Cumulative Preferred
Stock, par value $10.00 per share, or the Series B
Participating Cumulative Preferred Stock, par value $10.00 per
share, issued by the Corporation pursuant to the Restated
Rights Agreement, (ii) such class or classes shall be any
class of Common Stock of the Corporation or (iii) the holders
of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, whether
voluntary or involuntary, as the case may be, in preference or
priority to the holders of shares of such class or classes.
10. Determinations by the Board of Directors.
(a) Any determinations made by the Board of Directors
under any provision of this Section C of Division II of Article III
of these Articles of Incorporation shall be final and binding on
all shareholders (including holders of shares of this Series) of
the Corporation.
(b) Any determinations made by the Board of Directors,
a majority of whose members are "disinterested directors," under
any provision in Division I of Article III of these Articles of
Incorporation shall be final and binding on all shareholders of the
Corporation, including holders of shares of this Series. For this
purpose, any director who is not an employee of or a consultant to
the Corporation and who is not, directly or indirectly, the
beneficial owner of 1% or more of the outstanding shares of Common
Stock shall be considered "disinterested," even though such
director may beneficially own a greater amount of one class of
Common Stock than of the other class of Common Stock.
11. Definitions. Unless otherwise defined in this
Section C of Division II of Article III of these Articles of
Incorporation, terms used herein shall have the meanings ascribed
thereto in the first paragraph, and in Division I, of Article III
of these Articles of Incorporation and the following terms shall
have the following meanings:
"Acquisition" means the acquisition by Pittston
Acquisition Company, an indirect wholly owned Subsidiary of
the Corporation, of all the outstanding capital stock of
Addington, Inc., Appalachian Mining, Inc., Appalachian Land
Company, Vandalia Resources, Inc. and Kanawha Development
Corporation, each of which is a direct wholly owned subsidiary
of Addington Holding Company, Inc., pursuant to a Stock
Purchase Agreement dated as of September 24, 1993 between
Addington Holding Company, Inc. and Pittston Acquisition
Company.
"Articles of Incorporation" means the Corporation's
Restated Articles of Incorporation, as amended, supplemented,
further restated or otherwise modified from time to time.
"Board of Directors" or "Board" means, at any time, the
duly elected or acting board of directors (or duly authorized
committee thereof) of the Corporation at such time.
"Closing Price" of shares of any class of Common Stock of
the Corporation for any day means the last reported sale
price, regular way on such day, or, if no reported sale takes
place on such day, the average of the reported closing bid and
asked prices on such day, regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if
such Common Stock is not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which
such Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities
exchange, on the National Market System of NASDAQ or, if such
Common Stock is not quoted on such National Market System, the
average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if closing
bid and asked prices for such Common Stock on such day shall
not have been reported through NASDAQ, the average of the
closing bid and asked prices on such day as furnished by any
NYSE member firm regularly making a market in such Common
Stock selected for such purpose by the Board of Directors.
"Conversion Price" means the conversion price per share
of Minerals Stock and/or other shares of Common Stock of the
Corporation into which shares of this Series are convertible,
as such Conversion Price may be adjusted pursuant to
Section 6. The initial conversion price per share of Minerals
Stock will be $32.175 (equivalent to a conversion rate of
15.54 shares of Minerals Stock for each share of this Series).
"Current Market Price" means, with respect to any class
of Common Stock of the Corporation, the average of the daily
Closing Prices of a share of such Common Stock during the five
consecutive Trading Days selected by the Corporation
commencing not more than 20 Trading Days before, and ending
not later than, the date in question; provided, however, that
(i) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Sections
6(d)(ii) through (v) occurs on or after the 20th Trading Day
prior to the day in question and prior to the "ex" date for
the issuance or distribution requiring such computation, the
Closing Price for each Trading Day prior to the "ex" date for
such other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, (ii)
if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that required an
adjustment to the Conversion Price pursuant to Sections
6(d)(ii) through (v) occurs on or after the "ex" date for the
issuance or distribution requiring such computation and on or
prior to the day in question, the Closing Price for each
Trading Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, and
(iii) if the "ex" date for the issuance or distribution
requiring such computation is on or prior to the day in
question, after taking into account any adjustment required
pursuant to clause (ii) of this proviso, the Closing Price for
each Trading Day on or after such "ex" date shall be adjusted
by adding thereto the amount of any cash and the fair market
value on the day in question (as determined by the Board of
Directors in a manner consistent with any determination of
such value for purposes of Section 6(d)(iii) or (iv)) of the
evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of the applicable
class of Common Stock of the Corporation as of the close of
business on the day before such "ex" date. For purposes of
this definition, the term "ex" date, with respect to any class
of Common Stock of the Corporation, (a) when used with respect
to any issuance or distribution, means the first date on which
such Common Stock trades regular way on such exchange or in
the relevant market from which the Closing Price was obtained
without the right to receive such issuance or distribution,
(b) when used with respect to any subdivision or combination
of shares of such Common Stock, means the first date on which
such Common Stock trades regular way on such exchange or in
such market after the time at which such subdivision or
combination becomes effective, and (c) when used with respect
to any tender offer or exchange offer means the first date on
which such Common Stock trades regular way on such exchange or
in such market after the expiration time of such tender offer
or exchange offer.
"Disposition" means the sale, transfer, assignment or
other disposition (whether by merger, consolidation, sale or
contribution of assets or stock or otherwise) of properties or
assets.
"Excess Purchase Payment" means the excess, if any, of
(i) the aggregate of the cash and the value (as determined by
the Board of Directors) of all other consideration paid by the
Corporation or any of its Subsidiaries with respect to the
shares of the applicable class of Common Stock of the
Corporation acquired in a tender offer or exchange offer or
other negotiated purchase over (ii) the product of the Current
Market Price per share of such Common Stock times the number
of shares of such Common Stock acquired in such tender offer
or exchange offer or negotiated purchase.
"Minerals Rights" means the Pittston Minerals Group
Rights of the Corporation which are issuable under the
Corporation's shareholder rights plan adopted by the Board of
Directors, the terms and conditions of which are set forth in
the Restated Rights Agreement.
"NASDAQ" means the National Association of Securities
Dealers, Inc. Automated Quotations System or any successor
thereto.
"NYSE" means the New York Stock Exchange, Inc. or any
successor thereto.
"Redemption Date" means any date on which the Corporation
redeems any shares of this Series.
"Redemption Price" means (i) with respect to any optional
redemption of any share of this Series pursuant to Section 3,
the applicable amount set forth in such Section and (ii) with
respect to any mandatory redemption of any share of this
Series pursuant to Section 4, $500.00.
"Restated Rights Agreement" shall have the meaning given
thereto in the second paragraph of Section 6(d)(iii).
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Corporation or by one or more other
Subsidiaries. For the purpose of this definition, "voting
stock" means stock which ordinarily has 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 by reason of
any contingency.
"Trading Day" means, with respect to any class of Common
Stock of the Corporation, any day on which such Common Stock
is traded on the NYSE, or if such Common Stock is not listed
or admitted to trading on the NYSE, on the principal national
securities exchange on which such Common Stock is listed or
admitted, or if not listed or admitted to trading on any
national securities exchange, on the National Market System of
the NASDAQ, or if such Common Stock is not quoted on such
National Market System, in the applicable securities market in
which such Common Stock is traded.
"Transfer Agent" means the Corporation or such other
agent or agents of the Corporation as may be designated by the
Board of Directors as the Transfer Agent for shares of this
Series.
IN WITNESS WHEREOF, The Pittston Company has caused these
Articles of Amendment to be duly executed in its corporate name on
this 19th day of January 1994.
THE PITTSTON COMPANY,
by __________________________________
Name: Joseph C. Farrell
Title: Chairman of the Board
Attest:
by ____________________________
Name: Austin F. Reed
Title: Secretary
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
THE PITTSTON COMPANY
SETTING FORTH THE POWERS, PREFERENCES,
RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS OF THE COMPANY'S $31.25 SERIES C
CUMULATIVE CONVERTIBLE PREFERRED STOCK
Pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, The Pittston Company (the "Corporation"), a
corporation organized and existing under the Virginia Stock
Corporation Act, in accordance with Section 13.1-604 thereof, DOES
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors of the Corporation by Division II of Article III of
the Restated Articles of Incorporation, as amended, of the
Corporation (the "Articles of Incorporation"), the Board of
Directors of the Corporation, through the Executive Committee
thereof to which proper authority had been granted, on January 11,
1994 duly adopted the following resolution creating a series of
Preferred Stock designated as $31.25 Series C Cumulative
Convertible Preferred Stock:
RESOLVED that, pursuant to the authority vested in the
Board of Directors of the Corporation, Division II of Article III
of the Articles of Incorporation of the Corporation be, and it
hereby is, amended to provide the designation, rights, preferences,
limitations and relative rights of a series of Preferred Stock of
the Corporation, which amendment shall be accomplished by adding
the following text at the end of Division II of Article III of the
Articles of Incorporation:
C. $31.25 Series C Cumulative Convertible Preferred Stock
1. Designation and Number of Shares. The shares of
such series shall be designated "$31.25 Series C Cumulative
Convertible Preferred Stock" (hereinafter called "this Series").
The number of shares constituting this Series is 161,000. Shares
of this Series shall have a stated capital of $10.00 per share.
The number of authorized shares of this Series may be reduced by
further resolution adopted by the Board of Directors and by the
filing of articles of amendment pursuant to the provisions of the
Virginia Stock Corporation Act stating that such reduction has been
so authorized, but the number of authorized shares of this Series
shall not be so increased.
<PAGE>
2. Dividends.
(a) The annual dividend for each share of this Series
shall be $31.25. Such dividends shall be cumulative from the date
of original issue of such shares, and shall be payable, in cash,
when, as and if declared by the Board of Directors, out of funds
legally available for such purpose on the first calendar day of
March, June, September and December of each year, commencing
March 1, 1994; provided, however, that if any such date is a
Saturday, Sunday or legal holiday, then such dividend shall be
payable on the next calendar day which is not a Saturday, Sunday or
legal holiday.
(b) Each dividend on shares of this Series shall be paid
to the holders of record of such shares as they appear on the stock
transfer books of the Corporation on such record date, not
exceeding 70 days preceding the payment date thereof, as shall be
fixed by the Board of Directors. Dividends in arrears for any past
dividend period or any part thereof may be declared and paid at any
time, without reference to any regular dividend payment date, to
holders of record on such date, not exceeding 70 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(c) Except as hereinafter provided, no dividends shall
be declared or paid or set apart for payment on the Preferred Stock
of any series ranking substantially equal ("parity") or junior to
this Series as to dividends for any period unless full cumulative
dividends have been or contemporaneously are declared and paid on
this Series for all past dividend periods. When dividends are not
paid in full, as aforesaid, upon the shares of this Series, all
dividends declared upon shares of this Series and any other
Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends
per share on this Series and such other Preferred Stock shall in
all cases bear to each other the same ratio that accrued dividends
per share on the shares of this Series and such other Preferred
Stock bear to each other. Holders of shares of this Series shall
not be entitled to any dividends, whether payable in cash, property
or stock, in excess of full cumulative dividends, as herein
provided, on this Series. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or
payments on this Series which may be in arrears.
(d) So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common Stock or
in any other stock of the Corporation ranking junior to this Series
as to dividends and upon liquidation and other than as provided in
Section 2(c)) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or any
other stock of the Corporation ranking junior to, or on a parity
with, this Series as to dividends or upon liquidation, nor shall
any Common Stock nor any other stock of the Corporation ranking
junior to, or on a parity with, this Series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by
the Corporation (except by conversion into or exchange for stock of
the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of this Series shall have been
paid or contemporaneously are declared and paid for all past
dividend periods.
(e) Dividends payable on this Series for each full
quarterly dividend period shall be computed by dividing the annual
dividend by four. Dividends payable on this Series for any period
shorter or longer than a full quarterly dividend period, including
for the initial dividend period, shall be computed on the basis of
a 360-day year of twelve 30-day months.
3. Optional Redemption. Except as provided in
Section 4, the shares of this Series shall not be redeemable by the
Corporation prior to February 1, 1997. On and after February 1,
1997, shares of this Series may be redeemed, in whole at any time
or in part from time to time, at the option of the Corporation, out
of funds legally available for such purpose, for cash in an amount
equal to the following Redemption Prices if redeemed during the
twelve-month period beginning February 1 of the year indicated
below, upon giving notice as provided in Section 5:
Year Redemption Price
1997 $521.875
1998 518.750
1999 515.625
2000 512.500
2001 509.375
2002 506.250
2003 503.125
2004 and thereafter 500.000
plus, in each case, an amount equal to accrued and unpaid dividends
thereon to the date fixed for redemption.
4. Mandatory Redemption.
(a) Acquisition Redemption. If the Acquisition is not
consummated on or prior to March 1, 1994, shares of this Series
shall be redeemed by the Corporation, in whole, out of funds
legally available for such purpose, for cash in an amount equal to
the Redemption Price plus an amount equal to accrued and unpaid
dividends thereon to the date fixed for redemption (such a
redemption is hereinafter referred to as an "Acquisition
Redemption"). The Redemption Date of shares of this Series
pursuant to this Section 4(a) shall be on or prior to March 11,
1994, as fixed by the Board of Directors.
(b) Pittston Minerals Group Special Events. If (i) the
Corporation or any of its Subsidiaries shall enter into a
transaction or series of transactions resulting in the Disposition
of all or substantially all of the properties and assets of
Pittston Minerals Group under circumstances where the Corporation
is not required to exchange outstanding shares of Minerals Stock
for shares of Services Stock or other common stock (other than
Minerals Stock) pursuant to Section 2(b) of Division I of
Article III of these Articles of Incorporation or (ii) the
Corporation shall pay a dividend on, or the Corporation or any of
its Subsidiaries shall consummate a tender offer or exchange offer
for, Minerals Stock, and the aggregate amount of such dividend or
the consideration paid in such tender offer or exchange offer is an
amount equal to all or substantially all of the properties and
assets of Pittston Minerals Group (the events described in
clauses (b)(i) and (ii) above are hereinafter collectively referred
to as the "Pittston Minerals Group Special Events"), the
Corporation shall redeem shares of this Series, in whole, within 60
days following any such Pittston Minerals Group Special Event, for
cash in the amount equal to the Redemption Price, plus an amount
equal to accrued and unpaid dividends thereon to the date fixed for
redemption. The Redemption Date on shares of this Series pursuant
to this Section 4(b) shall be (A) the consummation date of the
Disposition or the dividend payment date if such Pittston Minerals
Group Special Event involves a Disposition or the payment of a
dividend, respectively, or (B) the consummation date of the tender
offer or exchange offer if such Pittston Minerals Group Special
Event involves a tender offer or exchange offer, respectively. Any
redemption pursuant to this Section 4(b) shall be conditioned upon
the consummation of such Disposition, the payment of such dividend
or the consummation of such tender offer or exchange offer, as the
case may be.
In the event of a Disposition by the Corporation of any
equity interest in any person, entity or group in which the
Corporation, directly or indirectly, owned a majority equity
interest as of the date of such Disposition, which person, entity
or group owned properties and assets of Pittston Minerals Group as
of such date (a "Pittston Minerals Group Company"), to holders of
all the outstanding shares of Minerals Stock on a pro rata basis,
solely for the purpose of determining whether a Disposition of all
or substantially all of the properties and assets of Pittston
Minerals Group pursuant to clause (b)(i) above has occurred, a
Disposition of the properties and assets of such Pittston Minerals
Group Company shall only be deemed to have occurred if the
Corporation, directly or indirectly, owns less than 20% of the
entire equity interest in such Company immediately after the
occurrence of such Disposition.
If the Corporation exchanges all outstanding shares of
Minerals Stock for shares of Services Stock pursuant to Section 2
of Division I of Article III of these Articles of Incorporation
and, subsequent to such exchange, any event substantially similar
to any Pittston Minerals Group Special Event occurs in respect to
Services Stock, at which time there is another class of Common
Stock outstanding other than Services Stock, the Corporation shall
redeem the shares of this Series, in whole, for cash in the amount
equal to the Redemption Price, plus an amount equal to accrued and
unpaid dividends thereon to the date fixed for redemption. The
Redemption Date shall occur, and the conditions in respect thereof,
shall be determined in the manner described above with respect to
any redemption resulting from any substantially similar Pittston
Minerals Group Special Event.
5. General Redemption Provisions. The following
general redemption provisions shall apply, as the context requires,
to any redemption of any shares of this Series pursuant to Sections
3 and 4:
(a) In the event that fewer than all the outstanding
shares of this Series are to be redeemed, the number of shares
to be redeemed shall be determined by the Board of Directors
and the shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board of Directors or by
any other method as may be determined by the Board of
Directors in its sole discretion to be equitable; provided,
however, that the Corporation may redeem any number of shares
of this Series owned by holders whose aggregate holdings of
such shares do not exceed 100 as may be specified by the
Corporation.
(b) In the event the Corporation shall redeem shares of
this Series pursuant to Section 3, notice of such redemption
shall be given, on a date at least 30 days but not more than
60 days prior to the date fixed for such redemption by the
Board of Directors, to each holder of record of the shares of
this Series to be redeemed. Notice of an Acquisition
Redemption pursuant to Section 4(a) shall be given not less
than 10 days prior to the date fixed for such redemption by
the Board of Directors to each holder of record of the shares
of this Series. Notice of redemption in connection with any
Pittston Minerals Group Special Event shall be given (i) if
such Event involves a Disposition or the payment of a
dividend, not less than 45 days prior to the date selected by
the Board of Directors for the consummation of such
Disposition or the payment of such dividend or (ii) if such
Event involves a tender offer or exchange offer, on the date
of public announcement thereof (but in any event not less than
30 days prior to such redemption). Such notice shall be given
by first class mail, postage prepaid, at such holder's address
as the same appears on the stock transfer books of the
Corporation. Neither the failure to mail, to any particular
holder, any notice required by this Section 5(b) nor any
defect therein or in the mailing thereof shall affect the
sufficiency of the notice or the validity of the proceedings
for redemption with respect to any other holder. Any notice
which was mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date
mailed whether or not the holder receives the notice. Each
such notice shall state as appropriate: (i) the Redemption
Date; (ii) the number of shares of this Series to be redeemed
and, if fewer than all the shares held by such holder are to
be redeemed, the number or proportion of such shares to be
redeemed from such holder; (iii) the Redemption Price to be
paid in respect of the redemption; (iv) the place or places
where certificates for such shares are to be surrendered for
the payment of the Redemption Price; (v) whether the
Corporation is depositing with a bank or trust company on or
before the applicable Redemption Date as provided in
Section 5(d) an adequate amount of money for the payment of
the Redemption Price and, if so, the proposed date of such
deposit; (vi) the then current Conversion Price (including, to
the extent any event then known to the Corporation will result
in an adjustment to the Conversion Price on or prior to the
Redemption Date, such adjusted Conversion Price and date of
such adjustment) and the date on which the right of holders to
convert shall terminate; (vii) the amount of accrued and
unpaid dividends in respect of the shares of this Series to be
redeemed; and (viii) that dividends on shares of this Series
to be redeemed shall cease to accrue on the Redemption Date.
(c) Notice having been given as provided in Section
5(b), from and after the Redemption Date (unless default shall
be made by the Corporation in providing an adequate amount of
money for the payment of the Redemption Price necessary to
effect such redemption in accordance with the terms hereof)
(i) dividends on the shares of this Series so called for
redemption shall cease to accrue, (ii) such shares shall no
longer be deemed to be outstanding and (iii) all rights of the
holders thereof as holders of shares of this Series shall
cease (except the right to receive from the Corporation the
Redemption Price, without interest thereon, upon surrender and
endorsement of their certificates). Upon surrender in
accordance with said notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer,
unless the Corporation shall waive such requirement), such
shares shall be so redeemed by the Corporation.
(d) The Corporation's obligation to provide an adequate
amount of money for the payment of the Redemption Price
necessary to effect any redemption in accordance with Sections
3 and 4 shall be deemed fulfilled if, on or before the
applicable Redemption Date, the Corporation shall deposit with
a bank or trust company that has an office in the Borough of
Manhattan, City of New York, and that has, or is an affiliate
of a bank or trust company that has, a capital and surplus of
at least $50,000,000, an amount of money adequate for the
payment of the aggregate Redemption Price necessary for such
redemption in accordance with the terms hereof, in trust, with
irrevocable instructions that such money be applied to the
redemption of the shares of this Series so called for
redemption. No interest shall accrue for the benefit of the
holders of shares of this Series to be redeemed on any money
so payable by the Corporation in respect of any redemption.
Subject to applicable escheat laws, any money unclaimed at the
end of two years from the related Redemption Date shall revert
to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look
only to the general funds of the Corporation for the payment
of such money. In case fewer than all the shares of this
Series represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(e) Any shares of this Series which shall at any time
have been redeemed shall, upon the taking of any action
required by law, have the status of authorized but unissued
shares of Preferred Stock, without designation as to series
until such shares are once more designated as part of a
particular series by the Board of Directors.
(f) Notwithstanding the foregoing provisions of Sections
3 through 5, unless the full cumulative dividends on all
outstanding shares of this Series shall have been paid or
contemporaneously are declared and paid for all past dividend
periods, the Corporation may not (i) redeem in part shares of
this Series other than on a pro rata basis or (ii) purchase or
otherwise acquire any shares of this Series other than
pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of this Series.
6. Conversion. Holders of shares of this Series shall
have the right to convert all or a portion of such shares into
shares of Minerals Stock in accordance with the provisions of this
Section 6. For purposes of this Section 6, references to shares of
this Series shall apply equally to fractional shares thereof, but
only to the extent such fractional shares are integral multiples of
one-tenth of one share of this Series.
(a) Subject to and upon compliance with the provisions
of this Section 6, a holder of shares of this Series shall have the
right, at such holder's option, at any time after March 11, 1994,
to convert such shares into the number of fully paid and
nonassessable shares of Minerals Stock equal to the quotient of (i)
the product of the initial liquidation preference for shares of
this Series of $500.00 per share times the number of shares of this
Series to be converted, divided by (ii) the Conversion Price (as in
effect on the date provided for in the last paragraph of Section
6(b)) by surrendering the certificates representing such shares to
be converted, such surrender to be made in the manner provided in
accordance with this Section 6; provided, however, that the right
to convert shares of this Series called for redemption pursuant to
(A) Sections 3, 4(a) and 4(b) (but, in the case of Section 4(b),
only to the extent the Pittston Minerals Group Special Event does
not involve the payment of a dividend) shall terminate at the close
of business on the related Redemption Date or (B) Section 4(b) (but
only to the extent the Pittston Minerals Group Special Event
involves the payment of a dividend) shall terminate on the 31st day
prior to the date selected by the Board of Directors for the
payment of such dividend, unless the Corporation shall default in
making payment of any moneys payable upon such redemption under
Sections 3 and 4.
(b) In order to exercise the conversion right, the
holder of any shares of this Series to be converted shall surrender
the certificate representing such shares, duly endorsed or assigned
to the Corporation or in blank, at the office of the Transfer
Agent, accompanied by written notice to the Corporation that the
holder thereof elects to convert such shares or a specified portion
thereof. Unless the shares issuable on conversion are to be issued
in the same name as the name in which such shares of this Series
are registered, any shares surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or such holder's duly
authorized attorney and an amount sufficient to pay any transfer or
similar tax (or evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid).
Holders of shares of this Series at the close of business
on a record date for determining shareholders entitled to receive
a dividend shall be entitled to receive the dividend payable on
such shares on the corresponding dividend payment date (except that
holders of shares called for redemption on a Redemption Date
occurring between the close of business on such record date and the
opening of business on such dividend payment date shall not be
entitled to receive such dividend on such dividend payment date)
notwithstanding the conversion thereof following the close of
business on such dividend record date and prior to the opening of
business on such dividend payment date. However, shares of this
Series surrendered for conversion during the period between the
close of business on such dividend record date and the opening of
business on such dividend payment date (except shares called for
redemption on a Redemption Date during such period) must be
accompanied by payment of an amount equal to the dividend payable
on such shares on such dividend payment date. A holder of shares
of this Series on a dividend record date who (or whose transferee)
tenders any such shares for conversion into shares of Minerals
Stock on a dividend payment date will receive the dividend payable
by the Corporation on such shares of this Series on such date, and
the converting holder need not include payment of the amount of
such dividend upon surrender of such shares for conversion. Except
as provided above, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the shares of Minerals Stock
issued upon such conversion.
As promptly as practicable after the surrender of
certificates for shares of this Series as aforesaid, the
Corporation shall issue and shall deliver at such office to such
holder, or on such holder's written order, a certificate or
certificates for the number of full shares of Minerals Stock
issuable upon the conversion of such shares in accordance with the
provisions of this Section 6, and any fractional interest in
respect of a share of Minerals Stock arising upon such conversion
shall be settled as provided in Section 6(c).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the
certificates for shares of this Series shall have been surrendered
and the notice referred to in the third preceding paragraph (and,
if applicable, payment of an amount equal to the dividend payable
on such shares as described in the second preceding paragraph)
shall have been received by the Corporation as aforesaid, and the
person or persons in whose name or names any certificate or
certificates for shares of Minerals Stock shall be issuable upon
such conversion shall be deemed to have become the holder or
holders of record of the shares represented thereby at such time on
such date and such conversion shall be at the Conversion Price in
effect at such time on such date.
(c) No fractional shares or scrip representing fractions
of shares of Minerals Stock or any other Common Stock of the
Corporation shall be issued upon conversion of any share of this
Series. Instead of any fractional interest in a share of Minerals
Stock or such other Common Stock that would otherwise be
deliverable upon the conversion of a share of this Series, the
Corporation shall pay to the holder of such share an amount in cash
based upon the Closing Price of Minerals Stock or such other Common
Stock on the Trading Day immediately preceding the date of
conversion. If more than one share shall be surrendered for
conversion at one time by the same holder, the number of full
shares of Minerals Stock or such other Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate
number of shares of this Series so surrendered.
(d) The Conversion Price per share of Minerals Stock
shall be adjusted from time to time as follows:
(i) If the Corporation shall, after the date on which
shares of this Series are initially issued, (A) pay a dividend
or make a distribution on any class of its capital stock in
shares of Minerals Stock, (B) subdivide the outstanding
Minerals Stock into a greater number of shares or (C) combine
the outstanding Minerals Stock into a smaller number of
shares, then the Conversion Price in effect at the opening of
business on the day next following the date fixed for the
determination of shareholders entitled to receive such
dividend or distribution or at the opening of business on the
day next following the day on which such subdivision or
combination becomes effective, as the case may be, shall be
adjusted so that the holder of any share of this Series
thereafter surrendered for conversion shall be entitled to
receive the number of shares of Minerals Stock that such
holder would have owned or have been entitled to receive after
the happening of any of the events described above had such
share been converted immediately prior to the record date in
the case of a dividend or distribution or the effective date
in the case of a subdivision or combination. An adjustment
made pursuant to this Section 6(d)(i) shall become effective
immediately after the opening of business on the day next
following the record date (except as provided in Section 6(m))
in the case of a dividend or distribution and shall become
effective immediately after the opening of business on the day
next following the effective date in the case of a subdivision
or combination.
(ii) If the Corporation shall issue, after the date on
which shares of this Series are initially issued, rights or
warrants (other than any rights or warrants (including
Minerals Rights) referred to in Section 6(d)(iii) below) to
all holders of Minerals Stock entitling them (for a period
expiring within 45 days after the record date mentioned below)
to subscribe for or purchase Minerals Stock at a price per
share less than the Current Market Price per share of Minerals
Stock on the record date for the determination of shareholders
entitled to receive such rights or warrants, then the
Conversion Price in effect at the opening of business on the
day next following such record date shall be adjusted to equal
the price determined by multiplying (A) the Conversion Price
in effect immediately prior to the opening of business on the
day next following the date fixed for such determination by
(B) a fraction, the numerator of which shall be the sum of
(I) the number of shares of Minerals Stock outstanding on the
close of business on the date fixed for such determination and
(II) the number of shares that the aggregate proceeds to the
Corporation from the exercise of such rights or warrants for
Minerals Stock would purchase at such Current Market Price and
the denominator of which shall be the sum of (x) the number of
shares of Minerals Stock outstanding on the close of business
on the date fixed for such determination and (y) the number of
additional shares of Minerals Stock offered for subscription
or purchase pursuant to such rights or warrants. Such
adjustment shall become effective immediately after the
opening of business on the day next following such record date
(except as provided in Section 6(m)). In determining whether
any rights or warrants entitle the holders of Minerals Stock
to subscribe for or purchase shares of Minerals Stock at less
than the Current Market Price thereof, there shall be taken
into account any consideration received by the Corporation
upon issuance and upon exercise of such rights or warrants,
the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(iii) If the Corporation shall distribute to all holders
of Minerals Stock any shares of capital stock (other than
Common Stock of the Corporation), evidences of indebtedness,
cash or other assets of the Corporation (including securities,
but excluding (A) any dividend or distribution referred to in
Section 6(d)(i), (B) any rights or warrants referred to in
Section 6(d)(ii) or in the second paragraph of this Section
6(d)(iii), (C) any dividend or distribution paid exclusively
in cash or (D) any stocks, securities or other property
received as a result of a transaction referred to in Section
6(f)) (any of the foregoing being hereinafter referred to in
this Section 6(d)(iii) as the "Securities"), then in each such
case the Conversion Price shall be adjusted so that it shall
equal the price determined by multiplying (I) the Conversion
Price in effect immediately prior to the close of business on
the date fixed for the determination of shareholders entitled
to receive such distribution by (II) a fraction, the numerator
of which shall be the Current Market Price per share of the
Minerals Stock on the record date mentioned below less the
then fair market value (as determined by the Board of
Directors) of the portion of the Securities so distributed to
one share of Minerals Stock and the denominator of which shall
be the Current Market Price per share of the Minerals Stock on
the record date mentioned below. Such adjustment shall become
effective immediately at the opening of business on the day
next following the record date for the determination of
shareholders entitled to receive such distribution (except as
provided in Section 6(m)).
With respect to the Amended and Restated Rights Agreement
dated as of July 26, 1993 (as amended, further restated or
otherwise modified from time to time, the "Restated Rights
Agreement") between the Corporation and Chemical Bank (terms
used in this paragraph and not otherwise defined herein have
the meanings ascribed thereto in the Restated Rights
Agreement), the Conversion Price will be adjusted only when
Minerals Rights issuable pursuant thereto become exercisable
after the Corporation's right of redemption thereunder has
expired. Subject to the foregoing, upon the later to occur of
the Distribution Date and a Triggering Event (the "Adjustment
Date"), the Conversion Price in effect at the opening of
business on the Adjustment Date shall be adjusted to equal the
price determined by multiplying (A) such Conversion Price by
(B) a fraction, the numerator of which shall be equal to the
Current Market Price per share of Minerals Stock on the
Trading Day immediately prior to the Adjustment Date less an
amount equal to the quotient of (I) the aggregate fair market
value on the Adjustment Date (as determined by the Board of
Directors) of Minerals Rights distributed under the Restated
Rights Agreement divided by (II) the number of shares of
Minerals Stock outstanding on the Trading Date immediately
prior to the Adjustment Date and the denominator of which
shall be equal to such Current Market Price per share of
Minerals Stock. Such adjustment shall become effective
immediately after the opening of business on the day next
following such Adjustment Date.
(iv) If the Corporation shall, by dividend or otherwise,
at any time distribute to all holders of Minerals Stock cash
(excluding any regular quarterly dividend payable solely in
cash, any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to Section
6(d)(iii) and cash that is distributed in a merger or
consolidation to which Section 6(f) applies) in an aggregate
amount that, together with (A) the aggregate amount of any
other distributions to all holders of Minerals Stock made
exclusively in cash (to which this Section 6(d)(iv) would
otherwise apply) within the 12 months preceding the date of
payment of such distribution and in respect of which no
Conversion Price adjustment has been made and (B) all Excess
Purchase Payments in respect of each tender offer or exchange
offer for, or other negotiated purchase of, Minerals Stock
concluded by the Corporation or any of its Subsidiaries within
the 12 months preceding the date of payment of such
distribution and in respect of which no Conversion Price
adjustment has been made, exceeds an amount equal to 12 1/2% of
the product of the Current Market Price per share of Minerals
Stock on the date fixed for determination of holders of
Minerals Stock entitled to receive such distribution times the
number of shares of Minerals Stock outstanding on such date,
then the Conversion Price shall be adjusted so that it shall
equal the price determined by multiplying (A) such Conversion
Price in effect immediately prior to the Conversion Price
adjustment contemplated by this Section 6(d)(iv) by (B) a
fraction, the numerator of which shall be the Current Market
Price per share of Minerals Stock on the date fixed for
determination of holders of Minerals Stock entitled to receive
such distribution less that combined amount of such cash and
such Excess Purchase Payments so distributed applicable to one
share of Minerals Stock and the denominator of which shall be
such Current Market Price per share of Minerals Stock on such
date of determination. Such adjustment shall become effective
immediately prior to the opening of business on the day next
following the date fixed for such determination.
(v) In case the Corporation or any of its Subsidiaries
makes a tender offer or exchange offer for, or other
negotiated purchase of, all or any portion of Minerals Stock,
if the aggregate amount of any Excess Purchase Payment,
together with (A) the aggregate amount of any distributions
made to all holders of Minerals Stock made exclusively in cash
(excluding any regular quarterly dividend payable solely in
cash, any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to Section
6(d)(iii) and cash that is distributed in a merger or
consolidation to which Section 6(f) applies) within the 12
months preceding the consummation of such tender or exchange
offer or other negotiated purchase and in respect of which no
Conversion Price adjustment has been made and (B) all other
Excess Purchase Payments in respect of each tender or exchange
offer for, or other negotiated purchase of, Minerals Stock
concluded by the Corporation or any of its Subsidiaries within
the 12 months preceding the consummation of such tender or
exchange offer or other negotiated purchase and in respect of
which no Conversion Price adjustment has been made, exceeds an
amount equal to 12 1/2% of the product of the Current Market
Price per share of Minerals Stock on the consummation date of
such tender or exchange offer or other negotiated purchase
(any such date, the "Purchase Date") times the number of
shares of Minerals Stock outstanding (including any tendered,
exchanged or purchased shares) on such Purchase Date, then the
Conversion Price shall be adjusted so that it shall equal the
price determined by multiplying (I) such Conversion Price in
effect immediately prior to such Purchase Date by (II) a
fraction, the numerator of which shall be the Current Market
Price per share of Minerals Stock on such Purchase Date less
the combined amount of Excess Purchase Payments and such cash
so distributed applicable to one share of Minerals Stock and
the denominator of which shall be such Current Market Price
per share on such Purchase Date. Such adjustment shall become
effective immediately prior to the opening of business on the
day next following such Purchase Date.
(vi) The Corporation from time to time may reduce the
Conversion Price by any amount for any period of at least 20
business days (or such other period as may then be required by
applicable law), provided that the Board of Directors shall
have determined that such reduction is in the best interests
of the Corporation. No reduction in the Conversion Price
pursuant to this Section 6(d)(vi) shall become effective
unless the Corporation shall have mailed a notice, at least 15
days prior to the date on which such reduction is scheduled to
become effective, to each holder of shares of this Series.
Such notice shall be given by first class mail, postage
prepaid, at such holder's address as the same appears on the
stock transfer books of the Corporation. Such notice shall
state the amount per share by which the Conversion Price will
be reduced and the period for which such reduction will be in
effect.
(vii) The Corporation may make such reductions in the
Conversion Price, in addition to those required by Sections
6(d)(i) through (v), as the Board of Directors determines to
be necessary in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights
will not be taxable to the recipients; provided, however, that
any such reduction shall not be effective until written
evidence of the action of the Board of Directors authorizing
such reduction shall be filed with the Secretary of the
Corporation and notice thereof shall have been given by first
class mail, postage prepaid, to each holder of shares of this
Series at such holder's address as the same appears on the
stock transfer books of the Corporation.
(e) No adjustment in the Conversion Price shall be
required unless such adjustment would require a cumulative increase
or decrease of at least 1% in such Price; provided, however, that
any adjustments that by reason of this Section 6(e) are not
required to be made shall be carried forward and taken into account
in any subsequent adjustment until made; provided, further, that
any adjustment shall be required and made in accordance with the
provisions of this Section 6 (other than this Section 6(e)) not
later than such time as may be required in order to preserve the
tax-free nature of a distribution to the holders of shares of
Minerals Stock or any other Common Stock into which shares of this
Series are convertible. Notwithstanding any other provisions of
this Section 6, the Corporation shall not be required to make any
adjustment of any Conversion Price established hereunder for the
issuance of any shares of Common Stock of the Corporation
(including Minerals Stock) pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in
shares of such Common Stock under such plan. All calculations
under this Section 6 shall be made to the nearest 1/100 of a cent
(with $.00005 being rounded upward) or to the nearest 1/10,000 of
a share (with .00005 of a share being rounded upward), as the case
may be.
(f) If the Corporation shall be a party to any
transaction (including, without limitation, a merger or
consolidation of the Corporation and excluding any transaction as
to which Section 6(d) applies), in each case as a result of which
shares of Minerals Stock shall be converted into the right to
receive stock, securities or other property (including cash or any
combination thereof) (each of the foregoing being referred to
herein as a "Transaction"), each share of this Series which is not
converted into the right to receive stock, securities or other
property in connection with such Transaction shall thereafter be
convertible into the kind and amount of shares of stock, securities
and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of
that number of shares or fraction thereof of Minerals Stock into
which one share of this Series was convertible immediately prior to
such Transaction, assuming such holder of Minerals Stock (i) is not
a person with which the Corporation consolidated or into which the
Corporation merged or which merged into the Corporation or to which
such sale or transfer was made, as the case may be (a "Constituent
Person"), or an affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or
amount of stock, securities and other property (including cash)
receivable upon such Transaction (provided that if the kind or
amount of stock, securities and other property (including cash)
receivable upon such Transaction is not the same for each share of
Minerals Stock of the Corporation held immediately prior to such
Transaction by other than a Constituent Person or an affiliate
thereof and in respect of which such rights of election shall not
have been exercised ("non-electing share"), then for the purpose of
this Section 6(f) the kind and amount of stock, securities and
other property (including cash) receivable upon such Transaction by
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).
The Corporation shall not be a party to any Transaction unless the
terms of such Transaction are consistent with the provisions of
this Section 6(f) and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered
into an agreement with the other party or parties to such
transaction for the benefit of the holders of shares of this Series
that will contain provisions enabling the holders of such shares
that remain outstanding after such Transaction to convert into the
consideration received by holders of Minerals Stock at the
Conversion Price in effect immediately prior to such Transaction.
The provisions of this Section 6(f) shall similarly apply to
successive Transactions.
(g) The reclassification of Common Stock into which
shares of this Series are then convertible into securities which
include securities other than such Common Stock (other than any
reclassification upon a consolidation or merger to which Section
6(f) applies) shall be deemed to involve (i) a distribution of such
securities other than such Common Stock to all holders of such
Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of
shareholders entitled to receive such distribution") and (ii) a
subdivision or combination, as the case may be, of the number of
shares of such Common Stock outstanding immediately prior to such
reclassification into the number of shares of such Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be the effective date of such
subdivision or combination).
(h) If the Corporation shall, by dividend or otherwise,
distribute to all holders of Minerals Stock or other class of
Common Stock into which shares of this Series are then convertible
shares of Common Stock other than Minerals Stock or any class of
Common Stock into which shares of this Series are then convertible,
each share of this Series shall be convertible, in addition to the
number of shares of Minerals Stock and/or such other Common Stock
into which such share is then convertible, into the number of
shares of such other Common Stock receivable upon payment of such
distribution to a holder of that number of shares or fraction
thereof of Minerals Stock or such other Common Stock into which one
share of this Series was convertible immediately prior to the
record date fixed for the determination of shareholders entitled to
receive such distribution. Shares of this Series shall become so
convertible immediately after the opening of business on the day
next following such record date (except as provided in Section
6(m)). In addition, a Conversion Price shall be established with
respect to such Common Stock in an amount equal to the quotient of
(i) the initial liquidation preference of $500.00 per share of this
Series divided by (ii) the number of shares or fraction thereof of
such Common Stock that a holder of one share of Minerals Stock or
such other Common Stock into which shares of this Series are then
convertible would be entitled to receive on the payment date for
such distribution from and after any such date of determination of
shareholders entitled to receive such distribution and, thereafter,
Conversion Price adjustments as nearly as equivalent in type as may
be practicable to the adjustments pursuant to Sections 6(d) through
(f) which are to be made in respect of Minerals Stock shall be made
in respect of shares of such Common Stock. Notwithstanding the
foregoing and the provisions of Section 6(d)(iii), if the
Corporation shall make such a distribution in Common Stock and,
thereafter, all the shares of such Common Stock cease to be
outstanding, on the date such shares of Common Stock cease to be
outstanding (x) the shares of this Series shall cease to be
convertible into shares of such Common Stock, (y) a distribution of
shares of such Common Stock shall be deemed to have occurred on
such date and (z) the Conversion Price for the class of Common
Stock upon which such distribution was made, or if no shares of
such class are then outstanding because shares of such class were
exchanged for shares of another class of Common Stock, of such
other class of Common Stock, shall be adjusted in the manner set
forth in Section 6(d)(iii) to the same extent as if shares of the
Common Stock in which such distribution was made were within the
meaning of the term "Securities" in Section 6(d)(iii).
(i) After the date, if any, on which all outstanding
shares of Minerals Stock or of any other Common Stock into which
shares of this Series are then convertible are exchanged for shares
of another class of Common Stock (as provided in Section 2 of
Division I of Article III of these Articles of Incorporation), each
share of this Series shall thereafter be convertible into the
number of shares of such other class of Common Stock receivable
upon such exchange by a holder of that number of shares or fraction
thereof of Minerals Stock and/or such other Common Stock into which
shares of this Series are then convertible into which one share of
this Series was convertible immediately prior to such exchange.
From and after any such exchange, Conversion Price adjustments as
nearly equivalent as may be practicable to the adjustments pursuant
to Sections 6(d) through 6(h) which, prior to such exchange, were
made in respect of Minerals Stock and/or such other Common Stock
into which shares of this Series are then convertible shall instead
be made pursuant to such Sections in respect of shares of such
other class of Common Stock.
(j) Subject to the provisions of Section 6(k), if:
(i) the Corporation takes any action that would require
an adjustment of the Conversion Price pursuant to Sections
6(d) through (i);
(ii) there shall be any consolidation or merger to which
the Corporation is a party and for which approval of any
shareholders of the Corporation is required, or the sale or
transfer of all or substantially all of the assets of the
Corporation or Pittston Minerals Group;
(iii) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; or
(iv) the Corporation or any of its Subsidiaries shall
commence a tender offer or exchange offer for all or a portion
of the outstanding shares of Minerals Stock (or shall amend
any such tender offer or exchange offer),
then the Corporation shall cause to be filed with the Transfer
Agent and shall cause to be mailed to the holders of shares of this
Series at their addresses as shown on the stock transfer books of
the Corporation, as promptly as possible, but at least 15 days
prior to the earliest applicable date hereinafter specified, a
notice stating, as applicable, (A) the proposed record date for a
dividend or distribution or the proposed effective date of a
consolidation, merger, sale, transfer, liquidation, dissolution or
winding up, (B) the date as of which it is expected that holders of
Minerals Stock of record shall be entitled to exchange their shares
of Minerals Stock for securities or other property, if any,
deliverable upon such consolidation, merger, sale, transfer,
liquidation, dissolution or winding up or (C) the date on which
such tender offer or exchange offer commenced, the date on which
such tender offer or exchange offer is scheduled to expire unless
extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto). Failure
to give or receive such notice or any defect therein shall not
affect the legality or validity of the related transaction.
(k) The Corporation shall cause to be filed with the
Transfer Agent and shall cause to be mailed to the holders of
shares of this Series at their addresses as shown on the stock
transfer books of the Corporation notice of its intention (i) to
cause to occur, or to take any action that would result in, any
Pittston Minerals Group Special Event or (ii) to exchange
outstanding shares of Minerals Stock for shares of Services Stock
pursuant to Section 2 of Division I of Article III of these
Articles of Incorporation (which notice shall include the date on
which an exchange of outstanding shares of Minerals Stock for
shares of Services Stock is expected to become effective and the
date as of which it is expected that holders of record of Minerals
Stock shall be entitled to exchange their shares of Minerals Stock
for shares of Services Stock), not less than (A) 45 days prior to
the date selected by the Board of Directors for the consummation of
the Disposition or the payment of a dividend in connection with any
Pittston Minerals Group Special Event involving a Disposition or
the payment of a dividend, respectively, (B) 30 days prior to the
consummation of any tender offer or exchange offer in connection
with any Pittston Minerals Group Special Event involving a tender
offer or exchange offer, respectively, or (C) 30 days prior to the
exchange date for any such exchange. In addition, from and after
any such exchange of outstanding shares of Minerals Stock for
shares of Services Stock, the Corporation shall be required, in
connection with the redemption requirement specified in the third
paragraph of Section 4(b), to give a comparable notice of its
intention to take actions with respect to Services Stock
substantially similar to any Pittston Minerals Group Special Event.
In the event of any conflict between the notice provisions of this
Section 6(k) and Section 6(j) above, the notice provisions of this
Section 6(k) shall govern.
(l) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with the Transfer
Agent an officer's certificate setting forth the Conversion Price
after such adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate shall be prima
facie evidence of the correctness of such adjustment. Promptly
after delivery of such certificate, the Corporation shall prepare
a notice of such adjustment of the Conversion Price setting forth
the adjusted Conversion Price and the effective date of such
adjustment and shall send such notice of such adjustment of the
Conversion Price by first class mail, postage prepaid, to the
holder of each share of this Series at such holder's address as the
same appears on the stock transfer books of the Corporation.
(m) In any case in which Section 6(d) or 6(h) provides
that an adjustment shall become effective on the day next following
a record date for an event, the Corporation may defer until the
occurrence of such event (i) issuing to the holder of any share of
this Series converted after such record date and before the
occurrence of such event the additional shares of Minerals Stock or
any other Common Stock of the Corporation issuable upon such
conversion by reason of the adjustment required by such event over
and above the number of shares of Minerals Stock or such other
Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such holder any amount in cash
in lieu of any fraction thereof pursuant to Section 6(c).
(n) For purposes of this Section 6, the number of shares
of Minerals Stock or any other Common Stock into which shares of
this Series are then convertible at any time outstanding shall not
include any shares of Minerals Stock or such other Common Stock
then owned or held by, or for the account of, the Corporation. The
Corporation shall not pay a dividend or make any distribution on
shares of Minerals Stock or such other Common Stock held in the
treasury of the Corporation.
(o) There shall be no adjustment of the Conversion Price
in case of the issuance of any capital stock of the Corporation in
a reorganization, acquisition or other similar transaction except
as specifically set forth in this Section 6. If any action or
transaction would require adjustment of any Conversion Price
established hereunder pursuant to more than one paragraph of this
Section 6, only the adjustment which would result in the largest
reduction of such Conversion Price shall be made.
(p) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued shares of Minerals Stock
and/or, if the shares of this Series are then convertible into
other Common Stock of the Corporation, such other Common Stock, for
the purpose of effecting conversion of shares of this Series, the
full number of shares of Minerals Stock or such other Common Stock
deliverable upon the conversion of all outstanding shares of this
Series not theretofore converted. For purposes of this
Section 6(p), the number of shares of Minerals Stock or such other
Common Stock that shall be deliverable upon the conversion of all
outstanding shares of this Series shall be computed as if at the
time of computation all such outstanding shares were held by a
single holder.
The Corporation covenants that any shares of Minerals
Stock or other Common Stock of the Corporation issued upon
conversion of shares of this Series shall be validly issued, fully
paid and nonassessable.
(q) The Corporation will pay any and all documentary,
stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Minerals Stock or other securities
or property on conversion of shares of this Series pursuant hereto;
provided, however, that the Corporation shall not be required to
pay any tax that may be payable in respect of any transfer involved
in the issue or delivery of shares of Minerals Stock or other
securities or property in a name other than that of the holder of
such shares to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery
has paid to the Corporation the amount of any such tax or
established, to the reasonable satisfaction of the Corporation,
that such tax has been paid.
7. Voting. The shares of this Series shall not have
any voting rights, either general or special, except as prescribed
by the Virginia Stock Corporation Act and as set forth in this
Section 7.
(a) Unless the vote of the holders of a greater number
of shares shall then be required by the Virginia Stock Corporation
Act, the vote of the holders of at least a majority of all the
shares of this Series at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders
of shares of this Series shall vote together as a separate voting
group, shall be necessary for authorizing, effecting or validating
the amendment, alteration or repeal of any of the provisions of
these Articles of Incorporation or of any article amendatory
thereof or supplemental thereto (including any articles of
amendment or any similar document relating to any series of
Preferred Stock) so as to change the designation, rights,
preferences or limitations of this Series.
(b) Unless the vote of the holders of a greater number
of shares shall then be required by the Virginia Stock Corporation
Act, the vote of the holders of at least a majority of all the
shares of this Series at the time outstanding, given in person or
by proxy at a meeting called for the purpose at which the holders
of shares of this Series shall vote as a separate voting group,
shall be necessary to (i) increase or decrease the number of
authorized shares of Preferred Stock, (ii) create a new class of
stock, or increase the number of authorized shares of any class of
stock, of the Corporation ranking prior or superior ("prior") to,
or on a parity with, the shares of this Series, either as to
dividends or upon liquidation, or (iii) reclassify any of the
outstanding stock of the Corporation into any such prior or parity
shares.
(c) Unless the vote of the holders of a greater number
of shares shall then be required by the Virginia Stock Corporation
Act, the vote of the holders of at least a majority of all the
shares of this Series and all other series of Preferred Stock
ranking on a parity with this Series, either as to dividends or
upon liquidation, at the time outstanding, given in person or by
proxy at a meeting called for the purpose at which the holders of
shares of this Series and such other series of Preferred Stock
shall vote together as a single voting group without regard to
series, shall be necessary for authorizing, effecting or validating
(i) the merger or consolidation of the Corporation into or with any
other corporation or (ii) any statutory share exchange involving
the Corporation, if such merger, consolidation or statutory share
exchange would change the designation, rights, preferences or
limitations of this Series or if, after such merger, consolidation
or statutory share exchange, there shall be outstanding any shares
of any class of stock ranking prior to, or on a parity with, the
shares of this Series as to dividends or upon liquidation or any
obligation or security convertible into or evidencing the right to
purchase any such prior or parity shares (except such stock,
securities or obligations of the Corporation as may have been
outstanding immediately preceding such merger, consolidation or
statutory share exchange).
(d) If, on the date used to determine shareholders of
record for any meeting of shareholders for the election of
directors, a default in preference dividends on the Preferred Stock
shall exist, the number of directors constituting the Board of
Directors shall be increased by two, and the holders of the
Preferred Stock of all series (whether or not the holders of such
series of Preferred Stock would be entitled to vote for the
election of directors if such default in preference dividends did
not exist) shall have the right at such meeting, voting together as
a single voting group without regard to series, to the exclusion of
the holders of Common Stock of the Corporation, to elect two
directors of the Corporation to fill such newly created
directorships. Each director elected by the holders of shares of
Preferred Stock (herein called a "Preferred Director") shall
continue to serve as such director for the full term for which such
director shall have been elected, notwithstanding that prior to the
end of such term a default in preference dividends shall cease to
exist. Any Preferred Director may be removed without cause by, and
shall not be removed without cause except by, the vote of the
holders of record of the outstanding shares of Preferred Stock,
voting together as a single voting group without regard to series,
at a meeting of the shareholders, or of the holders of shares of
Preferred Stock, called for the purpose. So long as a default in
any preference dividends on the Preferred Stock shall exist (i) any
vacancy in the office of a Preferred Director may be filled (except
as provided in the following clause (ii)) by an instrument in
writing signed by the remaining Preferred Director and filed with
the Corporation and (ii) in the case of the removal of any
Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting
together as a single voting group without regard to series, at the
same meeting at which such removal shall be voted. Each director
appointed as aforesaid by the remaining Preferred Director shall be
deemed, for all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end
and no default in preference dividends shall exist, the number of
directors constituting the Board of Directors shall be reduced by
two. For the purposes hereof, a "default in preference dividends"
on the Preferred Stock shall be deemed to have occurred whenever
the amount of accrued and unpaid dividends upon any series of the
Preferred Stock shall be equivalent to six full quarterly dividends
or more (whether or not consecutive), and, having so occurred, such
default shall be deemed to exist thereafter until, but only until,
all accrued dividends on all shares of Preferred Stock of each and
every series then outstanding shall have been paid for all past
dividend periods.
8. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of
the Corporation, whether voluntary or involuntary, the holders of
the shares of this Series shall be entitled to receive out of the
assets of the Corporation available for distribution to
shareholders, before any payment or distribution shall be made on
any class of the Common Stock of the Corporation or on any other
class of stock ranking junior to the Preferred Stock upon
liquidation, the amount of $500.00 per share, plus a sum equal to
all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(b) Neither the sale, lease or exchange (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property and assets of the Corporation nor
the merger or consolidation of the Corporation into or with any
other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary,
for the purpose of this Section 8.
(c) After the payment to the holders of the shares of
this Series of the full preferential amounts provided for in
Section 8(a), the holders of shares of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
(d) In the event the assets of the Corporation available
for distribution to the holders of shares of this Series upon any
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to
Section 8(a), no such distribution shall be made on account of any
shares of any other class or series of Preferred Stock ranking on
a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the shares of this Series, ratably, in
proportion to the full distributable amounts for which holders of
all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
9. Ranking. For purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such class or
classes shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding
up of the Corporation, whether voluntary or involuntary, as
the case may be, in preference or priority to the holders of
shares of this Series;
(b) on a parity with the shares of this Series, either
as to dividends or upon liquidation, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share or sinking fund provisions, if
any, are different from those of this Series, if the holders
of such stock shall be entitled to the receipt of dividends or
of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, whether voluntary or
involuntary, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the
holders of such stock and the holders of shares of this
Series; and
(c) junior to shares of this Series, either as to
dividends or upon liquidation, if (i) such class or classes
shall be the Series A Participating Cumulative Preferred
Stock, par value $10.00 per share, or the Series B
Participating Cumulative Preferred Stock, par value $10.00 per
share, issued by the Corporation pursuant to the Restated
Rights Agreement, (ii) such class or classes shall be any
class of Common Stock of the Corporation or (iii) the holders
of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, whether
voluntary or involuntary, as the case may be, in preference or
priority to the holders of shares of such class or classes.
10. Determinations by the Board of Directors.
(a) Any determinations made by the Board of Directors
under any provision of this Section C of Division II of Article III
of these Articles of Incorporation shall be final and binding on
all shareholders (including holders of shares of this Series) of
the Corporation.
(b) Any determinations made by the Board of Directors,
a majority of whose members are "disinterested directors," under
any provision in Division I of Article III of these Articles of
Incorporation shall be final and binding on all shareholders of the
Corporation, including holders of shares of this Series. For this
purpose, any director who is not an employee of or a consultant to
the Corporation and who is not, directly or indirectly, the
beneficial owner of 1% or more of the outstanding shares of Common
Stock shall be considered "disinterested," even though such
director may beneficially own a greater amount of one class of
Common Stock than of the other class of Common Stock.
11. Definitions. Unless otherwise defined in this
Section C of Division II of Article III of these Articles of
Incorporation, terms used herein shall have the meanings ascribed
thereto in the first paragraph, and in Division I, of Article III
of these Articles of Incorporation and the following terms shall
have the following meanings:
"Acquisition" means the acquisition by Pittston
Acquisition Company, an indirect wholly owned Subsidiary of
the Corporation, of all the outstanding capital stock of
Addington, Inc., Appalachian Mining, Inc., Appalachian Land
Company, Vandalia Resources, Inc. and Kanawha Development
Corporation, each of which is a direct wholly owned subsidiary
of Addington Holding Company, Inc., pursuant to a Stock
Purchase Agreement dated as of September 24, 1993 between
Addington Holding Company, Inc. and Pittston Acquisition
Company.
"Articles of Incorporation" means the Corporation's
Restated Articles of Incorporation, as amended, supplemented,
further restated or otherwise modified from time to time.
"Board of Directors" or "Board" means, at any time, the
duly elected or acting board of directors (or duly authorized
committee thereof) of the Corporation at such time.
"Closing Price" of shares of any class of Common Stock of
the Corporation for any day means the last reported sale
price, regular way on such day, or, if no reported sale takes
place on such day, the average of the reported closing bid and
asked prices on such day, regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if
such Common Stock is not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which
such Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities
exchange, on the National Market System of NASDAQ or, if such
Common Stock is not quoted on such National Market System, the
average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if closing
bid and asked prices for such Common Stock on such day shall
not have been reported through NASDAQ, the average of the
closing bid and asked prices on such day as furnished by any
NYSE member firm regularly making a market in such Common
Stock selected for such purpose by the Board of Directors.
"Conversion Price" means the conversion price per share
of Minerals Stock and/or other shares of Common Stock of the
Corporation into which shares of this Series are convertible,
as such Conversion Price may be adjusted pursuant to
Section 6. The initial conversion price per share of Minerals
Stock will be $32.175 (equivalent to a conversion rate of
15.54 shares of Minerals Stock for each share of this Series).
"Current Market Price" means, with respect to any class
of Common Stock of the Corporation, the average of the daily
Closing Prices of a share of such Common Stock during the five
consecutive Trading Days selected by the Corporation
commencing not more than 20 Trading Days before, and ending
not later than, the date in question; provided, however, that
(i) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Sections
6(d)(ii) through (v) occurs on or after the 20th Trading Day
prior to the day in question and prior to the "ex" date for
the issuance or distribution requiring such computation, the
Closing Price for each Trading Day prior to the "ex" date for
such other event shall be adjusted by multiplying such Closing
Price by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, (ii)
if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that required an
adjustment to the Conversion Price pursuant to Sections
6(d)(ii) through (v) occurs on or after the "ex" date for the
issuance or distribution requiring such computation and on or
prior to the day in question, the Closing Price for each
Trading Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, and
(iii) if the "ex" date for the issuance or distribution
requiring such computation is on or prior to the day in
question, after taking into account any adjustment required
pursuant to clause (ii) of this proviso, the Closing Price for
each Trading Day on or after such "ex" date shall be adjusted
by adding thereto the amount of any cash and the fair market
value on the day in question (as determined by the Board of
Directors in a manner consistent with any determination of
such value for purposes of Section 6(d)(iii) or (iv)) of the
evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of the applicable
class of Common Stock of the Corporation as of the close of
business on the day before such "ex" date. For purposes of
this definition, the term "ex" date, with respect to any class
of Common Stock of the Corporation, (a) when used with respect
to any issuance or distribution, means the first date on which
such Common Stock trades regular way on such exchange or in
the relevant market from which the Closing Price was obtained
without the right to receive such issuance or distribution,
(b) when used with respect to any subdivision or combination
of shares of such Common Stock, means the first date on which
such Common Stock trades regular way on such exchange or in
such market after the time at which such subdivision or
combination becomes effective, and (c) when used with respect
to any tender offer or exchange offer means the first date on
which such Common Stock trades regular way on such exchange or
in such market after the expiration time of such tender offer
or exchange offer.
"Disposition" means the sale, transfer, assignment or
other disposition (whether by merger, consolidation, sale or
contribution of assets or stock or otherwise) of properties or
assets.
"Excess Purchase Payment" means the excess, if any, of
(i) the aggregate of the cash and the value (as determined by
the Board of Directors) of all other consideration paid by the
Corporation or any of its Subsidiaries with respect to the
shares of the applicable class of Common Stock of the
Corporation acquired in a tender offer or exchange offer or
other negotiated purchase over (ii) the product of the Current
Market Price per share of such Common Stock times the number
of shares of such Common Stock acquired in such tender offer
or exchange offer or negotiated purchase.
"Minerals Rights" means the Pittston Minerals Group
Rights of the Corporation which are issuable under the
Corporation's shareholder rights plan adopted by the Board of
Directors, the terms and conditions of which are set forth in
the Restated Rights Agreement.
"NASDAQ" means the National Association of Securities
Dealers, Inc. Automated Quotations System or any successor
thereto.
"NYSE" means the New York Stock Exchange, Inc. or any
successor thereto.
"Redemption Date" means any date on which the Corporation
redeems any shares of this Series.
"Redemption Price" means (i) with respect to any optional
redemption of any share of this Series pursuant to Section 3,
the applicable amount set forth in such Section and (ii) with
respect to any mandatory redemption of any share of this
Series pursuant to Section 4, $500.00.
"Restated Rights Agreement" shall have the meaning given
thereto in the second paragraph of Section 6(d)(iii).
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Corporation or by one or more other
Subsidiaries. For the purpose of this definition, "voting
stock" means stock which ordinarily has 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 by reason of
any contingency.
"Trading Day" means, with respect to any class of Common
Stock of the Corporation, any day on which such Common Stock
is traded on the NYSE, or if such Common Stock is not listed
or admitted to trading on the NYSE, on the principal national
securities exchange on which such Common Stock is listed or
admitted, or if not listed or admitted to trading on any
national securities exchange, on the National Market System of
the NASDAQ, or if such Common Stock is not quoted on such
National Market System, in the applicable securities market in
which such Common Stock is traded.
"Transfer Agent" means the Corporation or such other
agent or agents of the Corporation as may be designated by the
Board of Directors as the Transfer Agent for shares of this
Series.
IN WITNESS WHEREOF, The Pittston Company has caused these
Articles of Amendment to be duly executed in its corporate name on
this 19th day of January 1994.
THE PITTSTON COMPANY,
by __________________________________
Name: Joseph C. Farrell
Title: Chairman of the Board
Attest:
by ____________________________
Name: Austin F. Reed
Title: Secretary
<PAGE>
ARTICLES OF AMENDMENT
TO THE RESTATED ARTICLES OF INCORPORATION
OF THE PITTSTON COMPANY
SETTING FORTH THE POWERS, PREFERENCES,
RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS OF THE COMPANY'S SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK
AND SERIES B PARTICIPATING CUMULATIVE
PREFERRED STOCK
Pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, The Pittston Company (the "Corporation"), a
corporation organized and existing under the Virginia Stock
Corporation Act, in accordance with Section 13.1-604 thereof,
DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors of the Corporation by the first paragraph under
Division II of Article III of the Restated Articles of
Incorporation, as amended, of the Company (the "Articles of
Incorporation"), the Board of Directors of the Corporation on
May 7, 1993, duly adopted the following resolution creating,
effective as of July 27, 1993, two series of Preferred Stock
designated as Series A Participating Cumulative Preferred Stock
and Series B Participating Cumulative Preferred Stock:
RESOLVED that pursuant to the authority vested in the
Board of Directors of the Corporation, Article III of the
Restated Articles of Incorporation of the Corporation be, and it
hereby is, amended to provide the preferences, limitations and
relative rights of two series of Preferred Stock of the
Corporation, which amendment shall be accomplished by adding the
following text after the first paragraph under Division II of
Article III of the Restated Articles of Incorporation:
"Terms of the Preferred Stock are as follows:
A. Series A Participating Cumulative
Preferred Stock
1. Designation and Number of Shares. The shares of
such series shall be designated as "Series A Participating
Cumulative Preferred Stock" (the "Series A Preferred Stock").
The number of shares initially constituting the Series A
Preferred Stock shall be 50,000; provided, however, that if more
than a total of 50,000 shares of Series A Preferred Stock shall
be issuable upon the exercise of Pittston Services Group Rights
issued pursuant to the Amended and Restated Rights Agreement
dated as of July 26, 1993, between the Corporation and Chemical
Bank, as Rights Agent (the "Rights Agreement"), the Board of
Directors of the Corporation, pursuant to Section 13.1-639 of the
Virginia Stock Corporation Act, shall direct by resolution or
resolutions that articles of amendment to these Articles of
Incorporation be properly executed, acknowledged, filed and
recorded, in accordance with the provisions of Section 13.1-604
thereof, providing for the total number of shares of Series A
Preferred Stock authorized to be issued to be increased (to the
extent that the Articles of Incorporation then permit) to the
largest number of whole shares (rounded up to the nearest whole
number) issuable upon exercise of such Rights.
2. Dividends or Distributions. (a) Subject to the
prior and superior rights of the holders of shares of any other
series of Preferred Stock or other class of capital stock not by
its terms ranking on a parity with, or junior to, the shares of
Series A Preferred Stock with respect to dividends, the holders
of shares of the Series A Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of
the assets of the Corporation legally available therefor,
(1) quarterly dividends payable in cash on the first day of
March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or a fraction of a share of Series A
Preferred Stock, of $10.00 per whole share (rounded to the
nearest cent) less the amount of all cash dividends declared on
the Series A Preferred Stock pursuant to the following clause (2)
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series A Preferred Stock, and (2) dividends payable in cash on
the payment date for each cash dividend declared on Services
Stock in an amount per whole share (rounded to the nearest cent)
equal to the Services Formula Number (as defined below) then in
effect times the cash dividends then to be paid on each share of
Services Stock. In addition, if the Corporation shall pay any
dividend or make any distribution on Services Stock payable in
assets, securities or other forms of noncash consideration (other
than dividends or distributions solely in shares of Services
Stock), then, in each such case, the Corporation shall
simultaneously pay or make on each outstanding share of Series A
Preferred Stock a dividend or distribution in like kind of the
Services Formula Number then in effect times such dividend or
distribution on each share of Services Stock. As used herein,
the "Services Formula Number" shall be 1000; provided, however,
that if at any time after July 26, 1993, the Corporation shall
(x) declare or pay any dividend on Services Stock payable in
shares of Services Stock or make any distribution on Services
Stock in shares of Services Stock, (y) subdivide (by a stock
split or otherwise) the outstanding shares of Services Stock into
a larger number of shares of Services Stock or (z) combine (by a
reverse stock split or otherwise) the outstanding shares of
Services Stock into a smaller number of shares of Services Stock,
then in each such event the Services Formula Number shall be
adjusted to a number determined by multiplying the Services
Formula Number in effect immediately prior to such event by a
fraction, the numerator of which is the number of shares of
Services Stock that are outstanding immediately after such event
and the denominator of which is the number of shares of Services
Stock that are outstanding immediately prior to such event (and
rounding the result to the nearest whole number); and provided
further that if at any time after July 26, 1993, the Corporation
shall issue any shares of its capital stock in a reclassification
or change of the outstanding shares of Services Stock (including
any such reclassification or change in connection with a merger
in which the Corporation is the surviving corporation), then in
each such event the Services Formula Number shall be
appropriately adjusted to reflect such reclassification or
change.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
Section 2(a) above immediately prior to or at the same time it
declares a dividend or distribution on Services Stock (other than
a dividend or distribution solely in shares of Services Stock);
provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution in shares of Services
Stock) shall have been declared on Services Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10.00
per share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date. The
Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
a dividend or distribution declared thereon, which record date
shall be the same as the record date for any corresponding
dividend or distribution on Services Stock.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock from and after
the Quarterly Dividend Payment Date next preceding the date of
original issue of such shares of Series A Preferred Stock;
provided, however, that dividends on such shares which are
originally issued after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
a quarterly dividend and on or prior to the next succeeding
Quarterly Dividend Payment Date shall begin to accrue and be
cumulative from and after such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time
outstanding.
(d) So long as any shares of the Series A Preferred
Stock are outstanding, no dividends or other distributions shall
be declared, paid or distributed, or set aside for payment or
distribution, on Services Stock unless, in each case, the
dividend required by this Section 2 to be declared on the
Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred
Stock shall not be entitled to receive any dividends or other
distributions except as provided herein.
3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall
be entitled to a number of votes equal to the product
of (1) the Services Formula Number then in effect for
each share of Series A Preferred Stock held of record
on each matter on which holders of Services Stock are
entitled to vote times (2) the maximum number of votes
which the holders of Services Stock then have with
respect to such matter.
(b) Except as otherwise provided herein or by
applicable law, the holders of shares of Series A
Preferred Stock, the holders of shares of Services
Stock and the holders of any other class of capital
stock entitled to vote in the election of directors
shall vote together as one class for the election of
directors of the Corporation. In addition, the holders
of Series A Preferred Stock and the holders of Services
Stock shall vote together as one class on all other
matters submitted to a vote of holders of Services
Stock.
(c) If at the time of any annual meeting of
shareholders for the election of directors, the
equivalent of six quarterly dividends (whether or not
consecutive) payable on any share or shares of Series A
Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Corporation
shall be increased by two. In addition to voting
together with other holders of capital stock as set
forth in Section 3(a) for the election of other
directors of the Corporation, the holders of record of
the Series A Preferred Stock, voting separately as a
class to the exclusion of such other holders, shall be
entitled at said meeting of shareholders (and at each
subsequent annual meeting of shareholders), unless all
dividends in arrears have been paid or declared and set
apart for payment prior thereto, to vote for the
election of two directors of the Corporation, the
holders of any Series A Preferred Stock being entitled
to cast a number of votes per share of Series A
Preferred Stock equal to the Services Formula Number.
Until the default in payments of all dividends which
permitted the election of said directors shall cease to
exist any director who shall have been so elected
pursuant to the next preceding sentence may be removed
at any time, either with or without cause, only by the
affirmative vote of the holders of the shares at the
time entitled to cast a majority of the votes entitled
to be cast for the election of any such director at a
special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled
by the vote of such holders. If and when such default
shall cease to exist, the holders of the Series A
Preferred Stock shall be divested of the foregoing
special voting rights, subject to revesting in the
event of each and every subsequent like default in
payments of dividends. Upon the termination of the
foregoing special voting rights, the terms of office of
all persons who may have been elected directors
pursuant to said special voting rights shall forthwith
terminate, and the number of directors constituting the
Board of Directors shall be reduced by two. The voting
rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the
holders of the Series A Preferred Stock in this
Section 3.
(d) Except as provided herein, in Section 11 or
by applicable law, holders of Series A Preferred Stock
shall have no special voting rights and their consent
shall not be required (except to the extent they are
entitled to vote with holders of Services Stock as set
forth herein) for authorizing or taking any corporate
action.
4. Certain Restrictions. (a) Whenever quarterly
dividends or other dividends or distributions payable on the
Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock; provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock,
or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(b) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
subparagraph (a) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, no distribution shall be made
(a) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution, or winding
up) to the Series A Preferred Stock unless, prior thereto,
the holders of shares of Series A Preferred Stock shall have
received an amount equal to the accrued and unpaid dividends
and distributions thereon, whether or not declared, to the
date of such payment, plus an amount equal to the greater of
(i) $40 per share or (ii) an aggregate amount per share
equal to the Services Formula Number then in effect times
the aggregate amount to be distributed per share to holders
of Services Stock, or (b) to the holders of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A
Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution
or winding up.
6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination, statutory share exchange or other transaction
in which the shares of Services Stock are exchanged for or
changed into other stock or securities, cash or any other
property, then in any such case the then outstanding shares
of Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal
to the Services Formula Number then in effect times the
aggregate amount of stock, securities, cash or any other
property (payable in kind), as the case may be, into which
or for which each share of Services Stock is exchanged or
changed.
7. Redemption; No Sinking Fund. (a) The
outstanding shares of Series A Preferred Stock may be
redeemed at the option of the Board of Directors as a whole,
but not in part, at any time at which, in the good faith
determination of the Board of Directors, no person
beneficially owns more than 10% of the aggregate voting
power represented by all the outstanding shares of capital
stock of the Corporation generally entitled to vote in the
election of Directors of the Corporation, at a cash price
per share equal to (i) 125% of the product of the Services
Formula Number times the Market Value (as such term is
hereinafter defined) of Services Stock, plus (ii) all
dividends which on the redemption date have accrued on the
shares to be redeemed and have not been paid or declared and
a sum sufficient for the payment thereof set apart, without
interest. The "Market Value" on any date shall be deemed to
be the average of the daily closing prices, per share, of
Services Stock for the 30 consecutive Trading Days
immediately prior to the date in question. The closing
price for each Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such
Trading Day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system if
Services Stock is listed or admitted to trading on a
national securities exchange or, if Services Stock is not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the
over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations
System or such other system then in use, or, if on any such
Trading Day Services Stock is not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in Services Stock selected by the Board of Directors
of the Corporation. If on any such Trading Day no market
maker is making a market in Services Stock, the fair value
of Services Stock on such Trading Day shall mean the fair
value of Services Stock as determined in good faith by the
Board of Directors of the Corporation. "Trading Day" shall
mean a day on which the principal national securities
exchange on which Services Stock is listed or admitted to
trading is open for the transaction of business or, if
Services Stock is not listed or admitted to trading on any
national securities exchange, a Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking
institutions in the Borough of Manhattan, the City of
New York, are authorized or obligated by law or executive
order to close.
(b) The shares of Series A Preferred Stock shall
not be subject to or entitled to the operation of a
retirement or sinking fund.
8. Ranking. The Series A Preferred Stock shall
rank senior to Services Stock and Minerals Stock, on a
parity with the Corporation's Series B Participating
Cumulative Preferred Stock, par value $10 per share, and
junior to all other series of Preferred Stock of the
Corporation, unless the Board of Directors shall
specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other
special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
9. Fractional Shares. The Series A Preferred
Stock shall be issuable upon exercise of Pittston Services
Group Rights issued pursuant to the Rights Agreement in
whole shares or in any fraction of a share that is not
smaller than one one-thousandth (1/1000th) of a share or any
integral multiple of such fraction. At the election of the
Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Stock, either
(1) certificates may be issued to evidence such authorized
fraction of a share of Series A Preferred Stock, or (2) any
such authorized fraction of a share of Series A Preferred
Stock may be evidenced by depository receipts pursuant to an
appropriate agreement between the Corporation and a
depository selected by the Corporation; provided that such
agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and
preferences to which they are entitled as beneficial owners
of the Series A Preferred Stock.
10. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such
shares shall upon their cancelation become authorized but
unissued shares of Preferred Stock, without designation as
to series until such shares are once more designated as part
of a particular series by the Board of Directors pursuant to
the provisions of the first paragraph of Division II of
Article III.
11. Amendment. None of the powers, preferences
and relative, participating, optional and other special
rights of the Series A Preferred Stock as provided herein
shall be amended in any manner which would alter or change
the powers, preferences, rights or privileges of the holders
of Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of more than
66-2/3% of the outstanding shares of Series A Preferred
Stock, voting as a separate class.
B. Series B Participating Cumulative
Preferred Stock
1. Designation and Number of Shares. The shares
of such series shall be designated as "Series B
Participating Cumulative Preferred Stock" (the "Series B
Preferred Stock"). The number of shares initially
constituting the Series B Preferred Stock shall be 20,000;
provided, however, that if more than a total of 20,000
shares of Series B Preferred Stock shall be issuable upon
the exercise of Pittston Minerals Group Rights issued
pursuant to the Amended and Restated Rights Agreement dated
as of July 26, 1993, between the Corporation and Chemical
Bank, as Rights Agent (the "Rights Agreement"), the Board of
Directors of the Corporation, pursuant to Section 13.1-639
of the Virginia Stock Corporation Act, shall direct by
resolution or resolutions that articles of amendment to
these Articles of Incorporation be properly executed,
acknowledged, filed and recorded, in accordance with the
provisions of Section 13.1-604 thereof, providing for the
total number of shares of Series B Preferred Stock
authorized to be issued to be increased (to the extent that
the Articles of Incorporation then permit) to the largest
number of whole shares (rounded up to the nearest whole
number) issuable upon exercise of such Rights.
2. Dividends or Distributions. (a) Subject to
the prior and superior rights of the holders of shares of
any other series of Preferred Stock or other class of
capital stock not by its terms ranking on a parity with, or
junior to, the shares of Series B Preferred Stock with
respect to dividends, the holders of shares of the Series B
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the
Corporation legally available therefor, (1) quarterly
dividends payable in cash on the first day of March, June,
September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or a fraction of a share
of Series B Preferred Stock, of $10.00 per whole share
(rounded to the nearest cent) less the amount of all cash
dividends declared on the Series B Preferred Stock pursuant
to the following clause (2) since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series B
Preferred Stock, and (2) dividends payable in cash on the
payment date for each cash dividend declared on Minerals
Stock in an amount per whole share (rounded to the nearest
cent) equal to the Minerals Formula Number (as defined
below) then in effect times the cash dividends then to be
paid on each share of Minerals Stock. In addition, if the
Corporation shall pay any dividend or make any distribution
on Minerals Stock payable in assets, securities or other
forms of noncash consideration (other than dividends or
distributions solely in shares of Minerals Stock), then, in
each such case, the Corporation shall simultaneously pay or
make on each outstanding share of Series B Preferred Stock a
dividend or distribution in like kind of the Minerals
Formula Number then in effect times such dividend or
distribution on each share of Minerals Stock. As used
herein, the "Minerals Formula Number" shall be 1,000;
provided, however, that if at any time after July 26, 1993,
the Corporation shall (x) declare or pay any dividend on
Minerals Stock payable in shares of Minerals Stock or make
any distribution on Minerals Stock in shares of Minerals
Stock, (y) subdivide (by a stock split or otherwise) the
outstanding shares of Minerals Stock into a larger number of
shares of Minerals Stock or (z) combine (by a reverse stock
split or otherwise) the outstanding shares of Minerals Stock
into a smaller number of shares of Minerals Stock, then in
each such event the Minerals Formula Number shall be
adjusted to a number determined by multiplying the Minerals
Formula Number in effect immediately prior to such event by
a fraction, the numerator of which is the number of shares
of Minerals Stock that are outstanding immediately after
such event and the denominator of which is the number of
shares of Minerals Stock that are outstanding immediately
prior to such event (and rounding the result to the nearest
whole number); and provided further that if at any time
after July 26, 1993, the Corporation shall issue any shares
of its capital stock in a reclassification or change of the
outstanding shares of Minerals Stock (including any such
reclassification or change in connection with a merger in
which the Corporation is the surviving corporation), then in
each such event the Minerals Formula Number shall be
appropriately adjusted to reflect such reclassification or
change.
(b) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided in
Section 2(a) above immediately prior to or at the same time
it declares a dividend or distribution on Minerals Stock
(other than a dividend or distribution solely in shares of
Minerals Stock); provided, however, that, in the event no
dividend or distribution (other than a dividend or
distribution in shares of Minerals Stock) shall have been
declared on Minerals Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $2.00 per
share on the Series B Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
The Board of Directors may fix a record date for the
determination of holders of shares of Series B Preferred
Stock entitled to receive a dividend or distribution
declared thereon, which record date shall be the same as the
record date for any corresponding dividend or distribution
on Minerals Stock.
(c) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series B Preferred Stock
from and after the Quarterly Dividend Payment Date next
preceding the date of original issue of such shares of
Series B Preferred Stock; provided, however, that dividends
on such shares which are originally issued after the record
date for the determination of holders of shares of Series B
Preferred Stock entitled to receive a quarterly dividend and
on or prior to the next succeeding Quarterly Dividend
Payment Date shall begin to accrue and be cumulative from
and after such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on
the shares of Series B in an amount less than the total
amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding.
(d) So long as any shares of the Series B
Preferred Stock are outstanding, no dividends or other
distributions shall be declared, paid or distributed, or set
aside for payment or distribution, on Minerals Stock unless,
in each case, the dividend required by this Section 2 to be
declared on the Series B Preferred Stock shall have been
declared.
(e) The holders of the shares of Series B
Preferred Stock shall not be entitled to receive any
dividends or other distributions except as provided herein.
3. Voting Rights. The holders of shares of
Series B Preferred Stock shall have the following voting
rights:
(a) Each holder of Series B Preferred Stock shall
be entitled to a number of votes equal to the product
of (1) the Minerals Formula Number then in effect for
each share of Series A Preferred Stock held of record
on each matter on which holders of Minerals Stock are
entitled to vote times (2) the maximum number of votes
which the holders of Minerals Stock then have with
respect to such matter.
(b) Except as otherwise provided herein or by
applicable law, the holders of shares of Series B
Preferred Stock, the holders of shares of Minerals
Stock and the holders of any other class of capital
stock entitled to vote in the election of directors
shall vote together as one class for the election of
directors of the Corporation. In addition, the holders
of Series B Preferred Stock and the holders of Minerals
Stock shall vote together as one class on all other
matters submitted to a vote of holders of Minerals
Stock.
(c) If at the time of any annual meeting of
shareholders for the election of directors, the
equivalent of six quarterly dividends (whether or not
consecutive) payable on any share or shares of Series B
Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Corporation
shall be increased by two. In addition to voting
together with other holders of capital stock as set
forth in Section 3(a) for the election of other
directors of the Corporation, the holders of record of
the Series B Preferred Stock, voting separately as a
class to the exclusion of such other holders, shall be
entitled at said meeting of shareholders (and at each
subsequent annual meeting of shareholders), unless all
dividends in arrears have been paid or declared and set
apart for payment prior thereto, to vote for the
election of two directors of the Corporation, the
holders of any Series B Preferred Stock being entitled
to cast a number of votes per share of Series B
Preferred Stock equal to the Minerals Formula Number.
Until the default in payments of all dividends which
permitted the election of said directors shall cease to
exist any director who shall have been so elected
pursuant to the next preceding sentence may be removed
at any time, either with or without cause, only by the
affirmative vote of the holders of the shares at the
time entitled to cast a majority of the votes entitled
to be cast for the election of any such director at a
special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled
by the vote of such holders. If and when such default
shall cease to exist, the holders of the Series B
Preferred Stock shall be divested of the foregoing
special voting rights, subject to revesting in the
event of each and every subsequent like default in
payments of dividends. Upon the termination of the
foregoing special voting rights, the terms of office of
all persons who may have been elected directors
pursuant to said special voting rights shall forthwith
terminate, and the number of directors constituting the
Board of Directors shall be reduced by two. The voting
rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the
holders of the Series B Preferred Stock in this
Section 3.
(d) Except as provided herein, in Section 11 or
by applicable law, holders of Series B Preferred Stock
shall have no special voting rights and their consent
shall not be required (except to the extent they are
entitled to vote with holders of Minerals Stock as set
forth herein) for authorizing or taking any corporate
action.
4. Certain Restrictions. (a) Whenever quarterly
dividends or other dividends or distributions payable on the
Series B Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on
shares of Series B Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock; provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series B Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock,
or any shares of stock ranking on a parity with the
Series B Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(b) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
subparagraph (a) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, no distribution shall be made
(a) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution, or winding
up) to the Series B Preferred Stock unless, prior thereto,
the holders of shares of Series B Preferred Stock shall have
received an amount equal to the accrued and unpaid dividends
and distributions thereon, whether or not declared, to the
date of such payment, plus an amount equal to the greater of
(i) $40 per share or (ii) an aggregate amount per share
equal to the Minerals Formula Number then in effect times
the aggregate amount to be distributed per share to holders
of Minerals Stock, or (b) to the holders of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except distributions made ratably on the Series B
Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution
or winding up.
6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination, statutory share exchange or other transaction
in which the shares of Minerals Stock are exchanged for or
changed into other stock or securities, cash or any other
property, then in any such case the then outstanding shares
of Series B Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal
to the Minerals Formula Number then in effect times the
aggregate amount of stock, securities, cash or any other
property (payable in kind), as the case may be, into which
or for which each share of Minerals Stock is exchanged or
changed.
7. Redemption; No Sinking Fund. (a) The
outstanding shares of Series B Preferred Stock may be
redeemed at the option of the Board of Directors as a whole,
but not in part, at any time at which, in the good faith
determination of the Board of Directors, no person
beneficially owns more than 10% of the aggregate voting
power represented by all the outstanding shares of capital
stock of the Corporation generally entitled to vote in the
election of Directors of the Corporation, at a cash price
per share equal to (i) 125% of the product of the Minerals
Formula Number times the Market Value (as such term is
hereinafter defined) of Minerals Stock, plus (ii) all
dividends which on the redemption date have accrued on the
shares to be redeemed and have not been paid or declared and
a sum sufficient for the payment thereof set apart, without
interest. The "Market Value" on any date shall be deemed to
be the average of the daily closing prices, per share, of
Minerals Stock for the 30 consecutive Trading Days
immediately prior to the date in question. The closing
price for each Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such
Trading Day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system if
Minerals Stock is listed or admitted to trading on a
national securities exchange or, if Minerals Stock is not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the
over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations
System or such other system then in use, or, if on any such
Trading Day Minerals Stock is not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in Minerals Stock selected by the Board of Directors
of the Corporation. If on any such Trading Day no market
maker is making a market in Minerals Stock, the fair value
of Minerals Stock on such Trading Day shall mean the fair
value of Minerals Stock as determined in good faith by the
Board of Directors of the Corporation. "Trading Day" shall
mean a day on which the principal national securities
exchange on which Minerals Stock is listed or admitted to
trading is open for the transaction of business or, if
Minerals Stock is not listed or admitted to trading on any
national securities exchange, a Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking
institutions in the Borough of Manhattan, the City of
New York, are authorized or obligated by law or executive
order to close.
(b) The shares of Series B Preferred Stock shall
not be subject to or entitled to the operation of a
retirement or sinking fund.
8. Ranking. The Series B Preferred Stock shall
rank senior to Services Stock and Minerals Stock, on a
parity with the Corporation's Series A Participating
Cumulative Preferred Stock, par value $10 per share, and
junior to all other series of Preferred Stock of the
Corporation, unless the Board of Directors shall
specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other
special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
9. Fractional Shares. The Series B Preferred
Stock shall be issuable upon exercise of Pittston Minerals
Group Rights issued pursuant to the Rights Agreement in
whole shares or in any fraction of a share that is not
smaller than one one-thousandth (1/1000th) of a share or any
integral multiple of such fraction. At the election of the
Corporation, prior to the first issuance of a share or a
fraction of a share of Series B Preferred Stock, either
(1) certificates may be issued to evidence such authorized
fraction of a share of Series B Preferred Stock, or (2) any
such authorized fraction of a share of Series B Preferred
Stock may be evidenced by depository receipts pursuant to an
appropriate agreement between the Corporation and a
depository selected by the Corporation; provided that such
agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and
preferences to which they are entitled as beneficial owners
of the Series B Preferred Stock.
10. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such
shares shall upon their cancelation become authorized but
unissued shares of Preferred Stock, without designation as
to series until such shares are once more designated as part
of a particular series by the Board of Directors pursuant to
the provisions of the first paragraph of Division II of
Article III.
11. Amendment. None of the powers, preferences
and relative, participating, optional and other special
rights of the Series B Preferred Stock as provided herein
shall be amended in any manner which would alter or change
the powers, preferences, rights or privileges of the holders
of Series B Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of more than
66-2/3% of the outstanding shares of Series B Preferred
Stock, voting as a separate class."
IN WITNESS WHEREOF, The Pittston Company has
caused these Articles of Amendment to be duly executed in
its corporate name on this 27th day of July, 1993.
THE PITTSTON COMPANY,
by
_________________________
Name: Joseph C. Farrell
Title: Chairman and
Chief Executive
Officer
Attest:
by
_________________________
Name: Kevin A. Quinn
Title: Secretary<PAGE>
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
THE PITTSTON COMPANY
Pursuant to Section 13.1-710 of the Virginia Stock
Corporation Act, The Pittston Company, a corporation organized
and existing under the laws of Virginia, in accordance with
Section 13.1-604 of the Virginia Stock Corporation Act, DOES
HEREBY CERTIFY as follows:
FIRST: The name of the Corporation is The Pittston
Company (the "Corporation").
SECOND: Pursuant to written consents signed by all the
directors of the Corporation, resolutions were duly adopted
setting forth a proposed amendment to the Restated Articles of
Incorporation of the Corporation, declaring said amendment to
be advisable, directing that said amendment be considered at
the next annual meeting of the shareholders of the Corporation
and reserving unto the Board the power to abandon the proposal
notwithstanding shareholder approval thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Board of Directors of this Corporation
hereby declares it advisable and recommends to the
shareholders that the Common Stock of the Corporation, par
value $1.00 per share (the "Common Stock"), be reclassified
and that, in order to effect such reclassification, (A) the
Restated Articles of Incorporation of the Corporation be
amended by: (i) deleting Sections 1 through 4 of Article III
in their entirety and substituting in lieu thereof the
following:
The total number of shares of capital stock which the
Corporation shall have authority to issue is one hundred
twenty-two million (122,000,000), of which two million
(2,000,000) shares shall be shares of Preferred Stock, par
value $10.00 per share (hereinafter called "Preferred Stock"),
one hundred million (100,000,000) shares shall be shares of a
class of common stock designated as Pittston Services Group
Common Stock, par value $1.00 per share ("Services Stock"),
and twenty million (20,000,000) shares shall be shares of a
class of common stock designated as Pittston Minerals Group
Common Stock, par value $1.00 per share ("Minerals Stock").
Services Stock and Minerals Stock shall hereinafter
collectively be called "Common Stock".
DIVISION I
The preferences, limitations and relative rights of the
shares of each class of Common Stock are as follows:
1. Dividend Rights. (a) Subject to the express terms of
any outstanding series of Preferred Stock, dividends may be
declared and paid upon Services Stock and Minerals Stock upon
the terms provided for below with respect to each such class:
(i) Dividends on Services Stock. Dividends on
Services Stock may be declared and paid out of funds of
the Corporation legally available therefor. Subject to
the foregoing, the declaration and payment of dividends
on Services Stock, and the amount thereof, shall at all
times be solely in the discretion of the Board of
Directors.
(ii) Dividends on Minerals Stock. Dividends on
Minerals Stock may be declared and paid only out of the
lesser of (A) funds of the Corporation legally available
therefor and (B) the Available Minerals Dividend Amount.
Subject to the foregoing, the declaration and payment of
dividends on Minerals Stock, and the amount thereof,
shall at all times be solely in the discretion of the
Board of Directors.
(b) Discrimination Between Services Stock and Minerals
Stock. The Board of Directors, subject to the provisions of
Sections 1(a)(i) and 1(a)(ii), may, in its sole discretion,
declare and pay dividends exclusively on Services Stock,
exclusively on Minerals Stock or on both such classes in equal
or unequal amounts, notwithstanding the amounts of funds
available for dividends on each class, the respective voting
and liquidation rights of each class, the amount of prior
dividends declared on each class or any other factor.
(c) Distribution Determination. Pursuant to Section
13.1-653 of the Virginia Stock Corporation Act, the Board of
Directors may base a determination that a proposed dividend
distribution is out of funds legally available therefor under
Virginia law either on financial statements prepared on the
basis of accounting practices and principles that are
reasonable in the circumstances or on a fair valuation of the
Corporation's total net assets or other method that is
reasonable in the circumstances.
2. Exchange. Shares of Services Stock and Minerals
Stock are subject to exchange upon the terms provided below:
(a) Exchange of Services Stock. Outstanding shares of
Services Stock shall not be subject to either optional or
mandatory exchange by the Board of Directors.
(b) Exchange of Minerals Stock. (i) In the event of the
Disposition, in one transaction or a series of related
transactions, by the Corporation of all or substantially all
of the properties and assets of Pittston Minerals Group (other
than in connection with the Disposition by the Corporation of
all or substantially all of its properties and assets in one
transaction) to any person, entity or group (other than
(A) the holders of all outstanding shares of Minerals Stock on
a pro rata basis or (B) any person, entity or group in which
the Corporation, directly or indirectly, owns a majority
equity interest), the Corporation shall, on or prior to the
first Business Day following the 60th day following the
consummation of such Disposition, exchange each outstanding
share of Minerals Stock for fully paid and nonassessable
shares of Services Stock (or, if there are no shares of
Services Stock outstanding on the Exchange Date and shares of
another class or classes of Common Stock (other than Minerals
Stock) are then outstanding, of such other class of Common
Stock as then has the largest Market Capitalization) having a
Fair Market Value equal to 115% of the Fair Market Value of
one share of Minerals Stock, as of the date of the first
public announcement by the Corporation of such Disposition.
For purposes of this Section 2(b)(i):
(x) as of any date, "substantially all of the
properties and assets of Pittston Minerals Group" shall
mean a portion of such properties and assets that
represents at least 80% of either of the then-current
market value, as determined by the Board of Directors
based on opinions, appraisals or such other evidence as
the Board shall consider relevant, of, or the aggregate
reported net sales for the immediately preceding twelve
fiscal quarterly periods of the Corporation derived from,
the properties and assets of Pittston Minerals Group as
of such date (excluding the properties and assets of any
person, entity or group in which the Corporation,
directly or indirectly, owns less than a majority equity
interest);
(y) if immediately after any event, the
Corporation, directly or indirectly, owns less than a
majority equity interest in any person, entity or group
in which the Corporation, directly or indirectly, owned
a majority equity interest immediately prior to the
occurrence of such event, a Disposition of all of the
properties and assets of Pittston Minerals Group owned by
such person, entity or group shall be deemed to have
occurred; and
(z) in the case of a Disposition of properties and
assets in a series of related transactions, such
Disposition shall not be deemed to have been consummated
until the consummation of the last of such transactions.
(ii) The Board of Directors may, by a majority vote of
the directors then in office, at any time in its sole
discretion declare that each outstanding share of Minerals
Stock shall be exchanged, on an Exchange Date set forth in a
notice to holders of Minerals Stock pursuant to Section
2(c)(i), for fully paid and nonassessable shares of Services
Stock (or, if there are no shares of Services Stock
outstanding on the Exchange Date and shares of another class
or classes of Common Stock (other than Minerals Stock) are
then outstanding, of such other class of Common Stock as then
has the largest Market Capitalization) having a Fair Market
Value equal to 115% of the Fair Market Value of one share of
Minerals Stock, as of the date of the first public
announcement by the Corporation of such exchange.
(iii) After any Exchange Date on which all outstanding
shares of Minerals Stock were exchanged, any share of Minerals
Stock that is issued on conversion or exercise of any
Convertible Securities shall, immediately upon issuance
pursuant to such conversion or exercise and without any notice
or any other action on the part of the Corporation or its
Board of Directors or the holder of such share of Minerals
Stock, be exchanged for the amount of shares of Services Stock
or another class of Common Stock that a holder of such
Convertible Security would have been entitled to receive
pursuant to the terms of such Convertible Security had such
terms provided that the conversion privilege in effect
immediately prior to any exchange by the Corporation of any
shares of its Minerals Stock for shares of any other capital
stock of the Corporation would be adjusted so that the holder
of any such Convertible Security thereafter surrendered for
conversion would be entitled to receive the number of shares
of capital stock of the Corporation he or she would have owned
immediately following such action had such Convertible
Security been converted immediately prior thereto. The
provisions of this Section 2(b)(iii) shall not apply to the
extent that equivalent adjustments are otherwise made pursuant
to the provisions of such Convertible Securities.
(c) General Exchange Provisions. (i) In the event of
any exchange pursuant to Section 2(b)(i) and (ii), the
Corporation shall cause to be given to each holder of Minerals
Stock a notice stating (A) that shares of Minerals Stock shall
be exchanged, (B) the Exchange Date, (C) the kind and amount
of shares of capital stock to be received by such holder with
respect to each share of Minerals Stock held by such holder,
including details as to the calculation thereof, (D) the place
or places where certificates for shares of Minerals Stock,
properly endorsed or assigned for transfer (unless the
Corporation shall waive such requirement), are to be
surrendered for delivery of certificates for shares of such
capital stock and (E) that, subject to Section 2(c)(iii),
dividends on Minerals Stock will cease to be paid as of such
Exchange Date. Such notice shall be sent by first-class mail,
postage prepaid, not less than 30 nor more than 60 days prior
to the Exchange Date and in any case to each holder of
Minerals Stock at such holder's address as the same appears on
the stock transfer books of the Corporation. Neither the
failure to mail such notice to any particular holder of
Minerals Stock nor any defect therein shall affect the
sufficiency thereof with respect to any other holder of
Minerals Stock.
(ii) The Corporation shall not be required to issue or
deliver fractional shares of any class of capital stock to any
holder of Minerals Stock upon any exchange pursuant to this
Section 2. If the number of shares of any class of capital
stock remaining to be issued to any holder of Minerals Stock
is a fraction, the Corporation shall, if such fraction is not
issued or delivered to such holder, pay a cash adjustment in
respect of such fraction in an amount equal to the Fair Market
Value of such fraction on the date such payment is to be made.
(iii) No adjustments in respect of dividends shall be
made upon the exchange of any shares of Minerals Stock;
provided, however, that if the Exchange Date with respect to
Minerals Stock shall be subsequent to the record date for the
payment of a dividend or other distribution thereon or with
respect thereto, the holders of such shares of Minerals Stock
at the close of business on such record date shall be entitled
to receive the dividend or other distribution payable on or
with respect to such shares on the date set for payment of
such dividend or other distribution, notwithstanding the
exchange of such shares or the Corporation's default in
payment of the dividend or distribution due on such date.
(iv) Before any holder of shares of Minerals Stock shall
be entitled to receive certificates representing shares of any
capital stock to be received by such holder with respect to
such shares of Minerals Stock pursuant to this Section 2, such
holder shall surrender at such office as the Corporation shall
specify certificates for such shares of Minerals Stock,
properly endorsed or assigned for transfer (unless the
Corporation shall waive such requirement). The Corporation
will as soon as practicable after such surrender of
certificates representing shares of Minerals Stock deliver to
the person for whose account such shares of Minerals Stock
were so surrendered, or to his or her nominee or nominees,
certificates representing the number of whole shares of the
kind of capital stock to which he or she shall be entitled as
aforesaid, together with any fractional payment contemplated
by Section 2(c)(ii).
(v) From and after any applicable Exchange Date, all
rights of a holder of shares of Minerals Stock that were
exchanged shall cease except for the right, upon surrender of
the certificates representing such shares of Minerals Stock,
to receive certificates representing shares of the capital
stock for which such shares were exchanged together with any
fractional payment contemplated by Section 2(c)(ii) and rights
to dividends as provided in Section 2(c)(iii). No holder of
a certificate that immediately prior to the applicable
Exchange Date for Minerals Stock represented shares of
Minerals Stock shall be entitled to receive any dividend or
other distribution with respect to shares of any kind of
capital stock into which Minerals Stock was exchanged until
surrender of such holder's certificate for a certificate or
certificates representing shares of such kind of capital
stock. Upon such surrender, there shall be paid to the holder
the amount of any dividends or other distributions (without
interest) which theretofore became payable with respect to a
record date after the Exchange Date, but that were not paid by
reason of the foregoing, with respect to the number of whole
shares of the kind of capital stock represented by the
certificate or certificates issued upon such surrender. From
and after an Exchange Date for Minerals Stock, the Corporation
shall, however, be entitled to treat the certificates for
Minerals Stock that have not yet been surrendered for exchange
as evidencing the ownership of the number of whole shares of
the kind of capital stock for which the shares of Minerals
Stock represented by such certificates shall have been
exchanged, notwithstanding the failure to surrender such
certificates.
(vi) 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 any shares of capital
stock on exchange of shares of Minerals Stock pursuant hereto.
The Corporation shall not, however, be required to pay any tax
that may be payable in respect of any transfer involved in the
issue and delivery of any shares of capital stock in a name
other than that in which the shares of Minerals Stock so
exchanged 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.
3. Voting Rights. (a) The holders of Services Stock
and Minerals Stock shall vote together as a single voting
group on all matters; provided, however, that, except as
provided below with respect to amending voting rights of
Minerals Stock, the holders of Services Stock or Minerals
Stock, as the case may be, voting separately as a separate
voting group, shall be entitled to approve by the vote of a
majority of the shares of Services Stock or Minerals Stock, as
the case may be, then outstanding any proposed amendment to
these Restated Articles of Incorporation to the extent
prescribed by Section 13.1-708 of the Virginia Stock
Corporation Act. Each holder of Services Stock shall be
entitled to one vote, in person or by proxy, for each share of
Services Stock standing in his or her name on the stock
transfer books of the Corporation. Except as otherwise
provided below and subject to the provisions of Section 5,
each holder of Minerals Stock shall be entitled to one vote,
in person or by proxy, for each share of Minerals Stock
standing in his or her name on the stock transfer books of the
Corporation from the Effective Date to and including
December 31, 1995. On January 1, 1996, and on each January 1
every two years thereafter, the number of votes to which the
holder of each share of Minerals Stock shall be entitled shall
be adjusted and fixed for two-year periods to equal the
quotient of (i) the Fair Market Value of one share of Minerals
Stock divided by (ii) the Fair Market Value of one share of
Services Stock on each such date. Any proposed amendment to
these Restated Articles of Incorporation that would affect or
otherwise adjust the voting rights of the holders of Minerals
Stock shall be approved by the affirmative vote of the holders
of two-thirds of the outstanding shares of Minerals Stock,
voting separately as a separate voting group. The Board of
Directors shall take such action to implement such changes in
the voting rights of Minerals Stock as may be required
pursuant to this Section 3(a).
(b) Unless the Board of Directors conditions its
submission of a particular matter on receipt of a greater vote
or on any other basis permitted by applicable law, the vote of
the holders of a majority of the outstanding shares of
Services Stock and Minerals Stock, voting together as a single
voting group, is required for approval of any of the following
that by applicable law are required to be submitted to
shareholders for their approval: (i) any amendment or
restatement of these Articles of Incorporation, except as
otherwise provided in Section 3(a) or prescribed by Section
13.1-708 of the Virginia Stock Corporation Act; (ii) a plan of
merger; (iii) a plan of share exchange, except as otherwise
provided in Section 2; (iv) the sale, lease, exchange or other
disposition of all or substantially all of the property of the
Corporation otherwise than in the usual and regular course of
its business; or (v) a proposal to dissolve the Corporation.
The foregoing provisions shall not be construed to alter or
modify in any respect the voting requirements prescribed by
the Virginia Stock Corporation Act which would in the absence
of such provisions be applicable to approval of any affiliated
transaction (as defined in said Act) or any amendment of the
Restated Articles of Incorporation of the Corporation relating
to the vote required for approval of any affiliated
transaction.
4. Liquidation Rights. Subject to the provisions of
Section 5, in the event of the dissolution, liquidation or
winding up of the Corporation, whether voluntary or
involuntary, after there shall have been paid or set apart for
the holders of Preferred Stock the full preferential amounts
to which they are entitled, (a) the holders of Services Stock
shall be entitled to receive, on a per share basis in
proportion to the total number of outstanding shares of
Services Stock to the total number of outstanding shares of
both Services Stock and Minerals Stock as of the fifth
Business Day prior to the date of the public announcement of
(i) a voluntary dissolution, liquidation or winding up of the
Corporation or (ii) the institution of a proceeding for the
involuntary dissolution, liquidation or winding up of the
Corporation, the assets of the Corporation remaining for
distribution to its common shareholders and (b) the holders of
Minerals Stock shall be entitled to receive, on a per share
basis in proportion to the total number of outstanding shares
of Minerals Stock to the total number of outstanding shares of
both Services Stock and Minerals Stock as of the fifth
Business Day prior to the date of the public announcement of
(i) a voluntary dissolution, liquidation or winding up of the
Corporation or (ii) the institution of a proceeding for the
involuntary dissolution, liquidation or winding up of the
Corporation, the funds of the Corporation remaining for
distribution to its common shareholders.
5. Subdivision or Combination. If the Corporation shall
in any manner subdivide (by stock split, stock dividend or
otherwise) or combine (by reverse stock split or otherwise)
the outstanding shares of either Services Stock or Minerals
Stock, the voting and liquidation rights of Minerals Stock
relative to Services Stock shall be appropriately adjusted so
as to avoid any dilution in the aggregate voting or
liquidation rights of either class.
6. Definitions. As used in this Division I, the
following terms shall have the following meanings (with each
term defined in the singular having the comparable meaning
when used in the plural and vice versa), unless another
definition is provided or the context otherwise requires:
"Available Minerals Dividend Amount", on any date, shall
mean the greatest of: (a) an amount equal to (i) $50 million,
increased or decreased, as appropriate, to reflect
(A) Minerals Net Income from the close of business on 30,
1993, (B) any dividends or other distributions declared or
paid with respect to, or repurchases or issuances of, any
shares of Minerals Stock or any shares of Preferred Stock
attributed to Pittston Minerals Group and (C) any other
adjustments to shareholders' equity of Pittston Minerals Group
made in accordance with generally accepted accounting
principles, less (ii) the aggregate stated capital of any
outstanding shares of Preferred Stock attributed to Pittston
Minerals Group; (b) in the discretion of the Board of
Directors, the excess of the fair value of the net assets of
Pittston Minerals Group, as determined by the Board of
Directors on a basis corresponding to one of those set forth
in Section 13.1-653 of the Virginia Stock Corporation Act with
respect to a single corporation, over the aggregate stated
capital of any outstanding shares of Preferred Stock
attributed to Pittston Minerals Group; or (c) an amount equal
to Minerals Net Income (if positive) for the fiscal year in
which the dividend is declared and/or the preceding fiscal
year.
"Business Day" shall mean each weekday other than any day
on which Services Stock or Minerals Stock is not traded on any
national securities exchange or the National Association of
Securities Dealers Automated Quotations System or in the
over-the-counter market.
"Convertible Securities" shall mean any securities of the
Corporation that are convertible into or evidence the right to
purchase any shares of Services Stock or Minerals Stock,
pursuant to antidilution provisions of such securities or
otherwise.
"Disposition" shall mean the sale, transfer, assignment
or other disposition (whether by merger, consolidation, sale
or contribution of assets or stock or otherwise) of properties
or assets.
"Effective Date" shall mean the close of business on the
date on which the State Corporation Commission of Virginia
issues a certificate of amendment relating to these Articles
of Amendment to the Restated Articles of Incorporation.
"Exchange Date" shall mean any date fixed for an exchange
of shares of Minerals Stock as set forth in a notice to
holders of Minerals Stock pursuant to Section 2(c)(i).
"Fair Market Value" of shares of any class of Common
Stock on any date means the average of the daily closing
prices thereof for the 10 consecutive Business Days commencing
on the 30th Business Day prior to the date in question. The
closing price for each Business Day shall be (i) if such
shares are listed or admitted to trading on a national
securities exchange, the closing price on the New York Stock
Exchange Composite Tape (or any successor composite tape
reporting transactions on national securities exchanges) or,
if such New York Stock Exchange Composite Tape shall not be in
use or shall not report transactions in such shares, the last
reported sales price regular way on the principal national
securities exchange on which such shares are listed or
admitted to trading (which shall be the national securities
exchange on which the greatest number of shares of stock has
been traded during such 10 consecutive Business Days), or, if
there is no transaction on any such Business Day in any such
situation, the mean of the bid and asked prices on such
Business Day, or (ii) if such shares are not listed or
admitted to trading on any such exchange, the closing price,
if reported, or, if the closing price is not reported, the
average of the closing bid and asked prices as reported by the
National Association of Securities Dealers Automated
Quotations System or a similar source selected from time to
time by the Corporation for this purpose. In the event such
closing prices are unavailable, the Fair Market Value of such
shares shall be determined by the Board.
"Market Capitalization" of any class of Common Stock on
any day shall mean the product of (i) the Fair Market Value of
such class of Common Stock on such day and (ii) the number of
shares of such class of Common Stock issued and outstanding on
such day.
"Minerals Net Income" shall mean the net income or loss
of Pittston Minerals Group determined in accordance with
generally accepted accounting principles, including income and
expenses of the Corporation attributed to the operations of
Pittston Minerals Group on a substantially consistent basis,
including, without limitation, corporate administrative costs,
net interest and other financial costs and income taxes.
"Pittston Minerals Group" shall mean, at any time, (a)
all the businesses in which Pittston Coal Company and its
subsidiaries (or any of their predecessors) are or have been
engaged, directly or indirectly, (b) all the businesses in
which Pittston Mineral Ventures Company and its subsidiaries
(or any of their predecessors) are or have been engaged,
directly or indirectly, (c) all assets and liabilities of the
Corporation to the extent attributed to any of such
businesses, whether or not such assets or liabilities are or
were assets and liabilities of such businesses, and (d) such
businesses, assets, and liabilities acquired by the
Corporation for Pittston Minerals Group after the Effective
Date and determined by the Board of Directors to be included
in Pittston Minerals Group.
"Pittston Services Group" shall mean, at any time, all
the businesses in which the Corporation is or has been
engaged, directly or indirectly, and all assets and
liabilities of the Corporation, other than any businesses,
assets or liabilities of Pittston Minerals Group.
7. Determinations by the Board of Directors. Any
determinations made by the Board of Directors of the
Corporation or any committee of the Board, a majority of which
are "disinterested directors", under any provision in this
Division I of Article III shall be final and binding on all
shareholders of the Corporation. For this purpose, any
director who is not an employee of or a consultant to the
Corporation and who is not, directly or indirectly, the
beneficial owner of 1% or more of the outstanding shares of
Common Stock shall be considered "disinterested", even though
such director may beneficially own a greater amount of one
class of Common Stock than of the other class of Common Stock.
DIVISION II
Subject to applicable laws and to this Article III, the
Board of Directors of the Corporation may determine the
preferences, limitations and relative rights of the Preferred
Stock and of any series of such Preferred Stock. Such
determination may include, without limitation, provisions with
respect to voting rights (including rights with respect to any
transaction of a specified nature), redemption,
convertibility, distribution and preference on dissolution or
otherwise.
; (ii) deleting Section 5 of Article III in its entirety; and
(iii) deleting the text of Article VI in its entirety and
substituting in lieu thereof the following:
The private property of the shareholders of the
Corporation shall not be subject to payment of corporate debts
to any extent whatever.
and (B) shares of Minerals Stock be distributed to the
shareholders on the basis of one-fifth of one share of
Minerals Stock for each outstanding share of the Common Stock.
THIRD: Upon the effectiveness of these Articles of
Amendment, each share of the Corporation's Common Stock, par
value $1.00 per share (the "Common Stock"), that is issued and
outstanding shall be redesignated and reclassified, ipso facto
and without any other action on the part of the respective
shareholders thereof, into one share of Pittston Services
Group Common Stock, par value $1.00 per share.
FOURTH: The amendment set forth in paragraph SECOND (the
"Amendment") was duly adopted by the shareholders of the
Corporation at a meeting held on July 26, 1993.
FIFTH: The Amendment was submitted to the shareholders
of the Corporation by the Board of Directors of the
Corporation in accordance with Section 13.1-707 of the
Virginia Stock Corporation Act. Shareholders of the Common
Stock, of which 40,549,323 shares were outstanding on the
record date, were the only voting group entitled to vote on
the Amendment. The number of undisputed votes cast in favor
of the Amendment by such shareholders was , such number of
votes being sufficient for approval of the Amendment by such
shareholders.
SIXTH: These Articles of Amendment to the Restated
Articles of Incorporation shall be effective as of the close
of business on the date on which the State Corporation
Commission of Virginia issues a certificate of amendment
relating to these Articles of Amendment to the Restated
Articles of Incorporation.
IN WITNESS WHEREOF, The Pittston Company has caused these
Articles of Amendment to be duly executed in its corporate
name on this 26th day of July, 1993.
THE PITTSTON COMPANY,
by
Name: Joseph C. Farrell
Title: Chairman of the Board
Attest:
Name: Kevin A. Quinn
Title: Secretary<PAGE>
RESTATED ARTICLES OF INCORPORATION
of
THE PITTSTON COMPANY
ARTICLE I
The name of the Corporation is THE PITTSTON COMPANY.
ARTICLE II
The purpose for which the Corporation is organized is
to transact any lawful business not required to be stated in the
Articles of Incorporation.
ARTICLE III
1. The Corporation is authorized to issue 75,000,000
shares of Common Stock of the par value $1 per share and
20,000,000 shares of Preferred Stock of the par value of $10 per
share.
2. Subject to applicable laws and to this Article III,
the Board of Directors of the Corporation may determine the
preferences, limitations and relative rights of the Preferred
Stock and of any series of such Preferred Stock. Such determina-
tion may include, without limitation, provisions with respect to
voting rights (including rights with respect to any transaction
of a specified nature), redemption, convertibility, distributions
and preference on dissolution or otherwise.
3. Subject to applicable laws and to any rights of
holders of shares of the Preferred Stock at the time outstanding,
the holders of shares of Common Stock at the time outstanding
shall be entitled (i) to receive such distributions, in cash or
other property (including shares of Common Stock or of Preferred
Stock or any series thereof, whether or not shares of Preferred
Stock or any such series shall be then outstanding), as the Board
of Directors may determine, (ii) to have one vote per share on
all matters as to which a vote of shareholders shall be taken and
(iii) in the event of any liquidation or dissolution, whether
voluntary or involuntary, to receive the net assets of the
Corporation.
4. The private property of the shareholders of the
Corporation shall not be subject to payment of corporate debts to
any extent whatever.
5. The preferences, limitations and relative rights of
a series of participating, cumulative, Preferred Stock of the
Corporation be and hereby are fixed as follows:
(i) Designation and Number of Shares. The shares of
such series shall be designated as "Series A Participating
Cumulative Preferred Stock" (the "Series A Preferred Stock").
The number of shares initially constituting the Series A Pre-
ferred Stock shall be 50,000; provided, however, that if more
than a total of 50,000 shares of Series A Preferred Stock shall
be issuable upon the exercise of Rights issued pursuant to the
Rights Agreement dated as of September 11, 1987, between the
Corporation and Morgan Shareholder Services Trust Company, as
Rights Agent (the "Rights Agreement"), the Board of Directors of
the Corporation, pursuant to Section 13.1-639 of the Virginia
Stock Corporation Act shall direct by resolution or resolutions
that articles of amendment to these Articles of Incorporation be
properly executed, acknowledged, filed and recorded, in accor-
dance with the provisions of Section 13.1-604 thereof, providing
for the total number of shares of Series A Preferred Stock
authorized to be issued to be increased (to the extent that the
Articles of Incorporation then permit) to the largest number of
whole shares (rounded up to the nearest whole number) issuable
upon exercise of such Rights.
(ii) Dividends or Distributions. (a) Subject to the
prior and superior rights of the holders of shares of any other
series of Preferred Stock or other class of capital stock not by
its terms ranking on a parity with, or junior to, the shares of
Series A Preferred Stock with respect to dividends, the holders
of shares of the Series A Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of
the assets of the Corporation legally available therefor,
(1) quarterly dividends payable in cash on the first day of
March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or a fraction of a share of Series A
Preferred Stock, of $10.00 per whole share (rounded to the
nearest cent) less the amount of all cash dividends declared on
the Series A Preferred Stock pursuant to the following clause (2)
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series A Preferred Stock, and (2) dividends payable in cash on
the payment date for each cash dividend declared on the Common
Stock in an amount per whole share (rounded to the nearest cent)
equal to the Formula Number then in effect times the cash divi-
dends then to be paid on each share of Common Stock. In addition,
if the Corporation shall pay any dividend or make any distribu-
tion on the Common Stock payable in assets, securities or other
forms of noncash consideration (other than dividends or distribu-
tions solely in shares of Common Stock), then, in each such case,
the Corporation shall simultaneously pay or make on each out-
standing share of Series A Preferred Stock a dividend or
distribution in like kind of the Formula Number then in effect
times such dividend or distribution on each share of the Common
Stock. As used herein, the "Formula Number" shall be 1000;
provided, however, that if at any time after September 25, 1987,
the Corporation shall (x) declare or pay any dividend on the
Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock,
(y) subdivide (by a stock split or otherwise) the outstanding
shares of Common Stock into a larger number of shares of Common
Stock or (z) combine (by a reverse stock split or otherwise) the
outstanding shares of Common Stock into a smaller number of
shares of Common Stock, then in each such event the Formula
Number shall be adjusted to a number determined by multiplying
the Formula Number in effect immediately prior to such event by a
fraction, the numerator of which is the number of shares of
Common Stock that are outstanding immediately after such event
and the denominator of which is the number of shares of Common
Stock that are outstanding immediately prior to such event (and
rounding the result to the nearest whole number); and provided
further that if at any time after September 25, 1987, the Corpo-
ration shall issue any shares of its capital stock in a
reclassification or change of the outstanding shares of Common
Stock (including any such reclassification or change in connec-
tion with a merger in which the Corporation is the surviving
corporation), then in each such event the Formula Number shall be
appropriately adjusted to reflect such reclassification or
change.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
Section 5(ii)(a) of this Article III immediately prior to or at
the same time it declares a dividend or distribution on the
Common Stock (other than a dividend or distribution solely in
shares of Common Stock); provided, however, that, in the event no
dividend or distribution (other than a dividend or distribution
in shares of Common Stock) shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $10.00 per share on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Divi-
dend Payment Date. The Board of Directors may fix a record date
for the determination of holders of shares of Series A Preferred
Stock entitled to receive a dividend or distribution declared
thereon, which record date shall be the same as the record date
for any corresponding dividend or distribution on the Common
Stock.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock from and after
the Quarterly Dividend Payment Date next preceding the date of
original issue of such shares of Series A Preferred Stock;
provided, however, that dividends on such shares which are
originally issued after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive
a quarterly dividend and on or prior to the next succeeding
Quarterly Dividend Payment Date shall begin to accrue and be
cumulative from and after such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding.
(d) So long as any shares of the Series A Preferred
Stock are outstanding, no dividends or other distributions shall
be declared, paid or distributed, or set aside for payment or
distribution, on the Common Stock unless, in each case, the
dividend required by this Section 5(ii) to be declared on the
Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred
Stock shall not be entitled to receive any dividends or other
distributions except as provided herein.
(iii) Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall
be entitled to a number of votes equal to the Formula Number
then in effect, for each share of Series A Preferred Stock
held of record on each matter on which holders of the Common
Stock or shareholders generally are entitled to vote multi-
plied by the maximum number of votes which the holders of
the Common Stock or shareholders generally then have with
respect to such matter.
(b) Except as otherwise provided herein or by
applicable law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock shall vote
together as one class for the election of directors of the
Corporation and on all other matters submitted to a vote of
shareholders of the Corporation.
(c) If at the time of any annual meeting of
shareholders for the election of directors, the equivalent
of six quarterly dividends (whether or not consecutive)
payable on any share or shares of Series A Preferred Stock
are in default, the number of directors constituting the
Board of Directors of the Corporation shall be increased by
two. In addition to voting together with the holders of
Common Stock for the election of other directors of the
Corporation, the holders of record of the Series A Preferred
Stock, voting separately as a class to the exclusion of the
holders of Common Stock, shall be entitled at said meeting
of shareholders (and at each subsequent annual meeting of
shareholders), unless all dividends in arrears have been
paid or declared and set apart for payment prior thereto, to
vote for the election of two directors of the Corporation,
the holders of any Series A Preferred Stock being entitled
to cast a number of votes per share of Series A Preferred
Stock equal to the Formula Number. Until the default in
payments of all dividends which permitted the election of
said directors shall cease to exist any director who shall
have been so elected pursuant to the next preceding sentence
may be removed at any time, either with or without cause,
only by the affirmative vote of the holders of the shares at
the time entitled to cast a majority of the votes entitled
to be cast for the election of any such director at a
special meeting of such holders called for that purpose, and
any vacancy thereby created may be filled by the vote of
such holders. If and when such default shall cease to
exist, the holders of the Series A Preferred Stock shall be
divested of the foregoing special voting rights, subject to
revesting in the event of each and every subsequent like
default in payments of dividends. Upon the termination of
the foregoing special voting rights, the terms of office of
all persons who may have been elected directors pursuant to
said special voting rights shall forthwith terminate, and
the number of directors constituting the Board of Directors
shall be reduced by two. The voting rights granted by this
Section 5(iii)(c) shall be in addition to any other voting
rights granted to the holders of the Series A Preferred
Stock in this Section 5(iii).
(d) Except as provided herein, in Section 5(xi)
of this Article III or by applicable law, holders of
Series A Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common
Stock as set forth herein) for authorizing or taking any
corporate action.
(iv) Certain Restrictions. (a) Whenever quarterly
dividends or other dividends or distributions payable on the
Series A Preferred Stock as provided in Section 5(ii) of this
Article III are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been
paid in full, the Corporation shall not
(1) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(2) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(3) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock; provided that
the Corporation may at any time redeem, purchase or other-
wise acquire shares of any such parity stock in exchange for
shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(4) purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of
stock ranking on a parity with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for considera
tion any shares of stock of the Corporation unless the Corporation
could, under subparagraph (a) of this Section 5(iv), purchase or
otherwise acquire such shares at such time and in such manner.
(v) Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, no distribution shall be made (1) to the holders
of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution, or winding up) to the Series A Preferred
Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount equal to the
accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, plus an amount
equal to the greater of (x) $50 per share or (y) an aggregate
amount per share equal to the Formula Number then in effect times
the aggregate amount to be distributed per share to holders of
Common Stock, or (2) to the holders of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distribu-
tions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
(vi) Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination, statutory
share exchange or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or securities,
cash or any other property, then in any such case the then out-
standing shares of Series A Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share
equal to the Formula Number then in effect times the aggregate
amount of stock, securities, cash or any other property (payable
in kind), as the case may be, into which or for which each share
of Common Stock is exchanged or changed.
(vii) Redemption; No Sinking Fund. (a) The outstanding
shares of Series A Preferred Stock may be redeemed at the option
of the Board of Directors as a whole, but not in part, at any
time at which, in the good faith determination of the Board of
Directors, no person beneficially owns more than 10% of the
aggregate voting power represented by all the outstanding shares
of capital stock of the Corporation generally entitled to vote in
the election of Directors of the Corporation, at a cash price per
share equal to (i) 125% of the product of the Formula Number
times the Market Value (as such term is hereinafter defined) of
the Corporation's Common Stock, plus (ii) all dividends which on
the redemption date have accrued on the shares to be redeemed and
have not been paid or declared and a sum sufficient for the
payment thereof set apart, without interest. The "Market Value"
on any date shall be deemed to be the average of the daily
closing prices, per share, of the Corporation's Common Stock for
the 30 consecutive Trading Days immediately prior to the date in
question. The closing price for each Trading Day shall be the
last sale price, regular way, or, in case no such sale takes
place on such Trading Day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system if the Common
Stock is listed or admitted to trading on a national securities
exchange or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System or such other system then in use, or, if on any
such Trading Day the Common Stock is not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Common Stock selected by the Board of Directors of the Corporation.
If on any such Trading Day no market maker is making a market in
the Common Stock, the fair value of such Common Stock on such
Trading Day shall mean the fair value of the Common Stock as
determined in good faith by the Board of Directors of the Corpora-
tion. "Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business
or, if the Common Stock is not listed or admitted to trading on
any national securities exchange, a Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institu-
tions in the Borough of Manhattan, the City of New York, are
authorized or obligated by law or executive order to close.
(b) The shares of Series A Preferred Stock shall not
be subject to or entitled to the operation of a retirement or
sinking fund.
(viii) Ranking. The Series A Preferred Stock shall rank
senior to the Corporation's Common Stock and junior to all other
series of Preferred Stock of the Corporation, unless the Board of
Directors shall specifically determine otherwise in fixing the
powers, preferences and relative, participating, optional and
other special rights of the shares of such series and the quali-
fications, limitations and restrictions thereof.
(ix) Fractional Shares. The Series A Preferred Stock
shall be issuable upon exercise of the Rights issued pursuant to
the Rights Agreement in whole shares or in any fraction of a
share that is not smaller than one one- thousandth (1/1000th) of a
share or any integral multiple of such fraction. At the election
of the Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Stock, either (1) cer-
tificates may be issued to evidence such authorized fraction of a
share of Series A Preferred Stock, or (2) any such authorized
fraction of a share of Series A Preferred Stock may be evidenced
by depository receipts pursuant to an appropriate agreement
between the Corporation and a depository selected by the Corpora-
tion; provided that such agreement shall provide that the holders
of such depository receipts shall have all the rights, privileges
and preferences to which they are entitled as beneficial owners
of the Series A Preferred Stock.
(x) Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corpora-
tion in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall
upon their cancelation become authorized but unissued shares of
Preferred Stock, without designation as to series until such
shares are once more designated as part of a particular series by
the Board of Directors pursuant to the provisions of Section 2 of
this Article III.
(xi) Amendment. None of the powers, preferences and
relative, participating, optional and other special rights of the
Series A Preferred Stock as provided in this Section 5 of this
Article III shall be amended in any manner which would alter or
change the powers, preferences, rights or privileges of the
holders of Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of more than 66-2/3%
of the outstanding shares of Series A Preferred Stock, voting as
a separate class.
ARTICLE IV
1. No holder of any class of capital stock of the
Corporation shall have any preemptive right to subscribe for,
purchase or acquire (i) any shares of capital stock of the
Corporation, (ii) any securities convertible into or exchangeable
for any such shares or (iii) any options, warrants or rights to
subscribe for, purchase or acquire any of such shares or securi-
ties.
2. Rights, options or warrants for the purchase of
shares of any class of capital stock of the Corporation may be
issued upon such terms and conditions and for such consideration
as may be approved by the Board of Directors. Approval of the
shareholders of the Corporation shall not be required for any
such issue, whether or not issued to directors, officers or
employees of the Corporation or any of its subsidiaries rather
than generally to holders of shares of any such class.
ARTICLE V
1. The Board of Directors shall consist of such number
of individuals, not less than nine or more than fifteen, as shall
be specified in or fixed in accordance with the bylaws of the
Corporation. Directors may be removed only with cause.
2. Directors shall be divided into three classes, each
class to be as nearly equal in number as possible, the number to
be assigned each class to be determined by, or in the manner
provided in, the bylaws of the Corporation, or in the absence of
any such provision, then by the Directors prior to the election
of a particular class. At each annual meeting the successors to
directors whose terms shall expire that year shall be elected to
a term of three years; provided, however, that at least three
directors shall be elected in each year.
3. In addition to any other vote that may be required
by statute, stock exchange regulations, these Articles of Incorpo-
ration or any amendment thereto, or the bylaws of the Corporation,
the vote of the holders of four fifths of all classes of stock of
the Corporation entitled to vote in elections of directors
(considered for this purpose as one class) shall be required to
amend, alter, change or repeal Section 1 or Section 2 of this
Article V or this Section 3.
ARTICLE VI
Unless the Board of Directors conditions its submission
of a particular matter on receipt of a greater vote or on any
other basis permitted by applicable law, the vote of the holders
of a majority of the outstanding shares of the Corporation held
by each voting group (as determined in accordance with the
Virginia Stock Corporation Act) entitled to vote on the matter is
required for approval of any of the following that by applicable
law are required to be submitted to shareholders for their
approval: (i) any amendment or restatement of the Articles of
Incorporation of the Corporation, (ii) a plan of merger, (iii) a
plan of share exchange, (iv) the sale, lease, exchange or other
disposition of all or substantially all of the property of the
Corporation otherwise than in the usual and regular course of its
business or (v) a proposal to dissolve the Corporation. The
foregoing provisions of this Article VI shall not be construed to
alter or modify in any respect the voting requirement prescribed
by said Act which would in the absence of such provisions be
applicable to approval of any affiliated transaction (as defined
in said Act) or any amendment of the Articles of Incorporation of
the Corporation relating to the vote required for approval of any
affiliated transaction.
ARTICLE VII
The Board of Directors shall have the power to make,
amend or repeal bylaws of the Corporation.
ARTICLE VIII
1. In any proceeding brought by a shareholder of the
Corporation in the right of the Corporation or brought by or on
behalf of shareholders of the Corporation, an officer or a
director of the Corporation shall not be liable to the Corpora-
tion or its shareholders for any monetary damages arising out of
any transaction, occurrence or course of conduct, unless in such
proceeding a judgment shall have been entered against the direc-
tor or officer because of a finding that the act or omission for
which the officer or director was adjudged liable had been proved
to be due to his or her willful misconduct or a knowing violation
of the criminal law or any federal or state securities law.
2. Without limiting any of the provisions of this
Article VIII, each officer, director or employee of the Corpora-
tion shall be entitled to indemnity, including indemnity with
respect to a proceeding by or in the right of the Corporation, to
the fullest extent required or permitted under the provisions of
the Stock Corporation of the Commonwealth of Virginia as in
effect from time to time, except only an indemnity against
willful misconduct or a knowing violation of the criminal law.
No amendment or repeal of this Article VIII shall apply to or
have any effect on the rights provided under this Article VIII
with respect to any act or omission occurring prior to such
amendment or repeal. The Corporation shall promptly take all
such actions, and make all such determinations, as shall be
necessary or appropriate to comply with its obligation to make
such indemnity and shall promptly pay or reimburse all reasonable
expenses, including attorneys' fees, incurred by any such officer,
director or employee in connection with such actions and determina-
tions or proceedings of any kind arising therefrom.
3. The Corporation shall promptly pay for or reimburse
the reasonable expenses, including attorneys' fees, incurred by
an officer, director or employee of the Corporation in connection
with any proceeding (whether or not made a party) arising from
his or her status as such officer, director or employee, in
advance of final disposition of any such proceeding upon receipt
by the Corporation from such officer, director or employee of (a)
a written statement of good faith belief that he or she is
entitled to indemnity by the Corporation, and (b) a written
undertaking, executed personally or on his or her behalf, to
repay the amount so paid or reimbursed if after final disposition
of such proceeding it is determined that he or she did not meet
the applicable standard of conduct.
4. The rights of each officer, director or employee of
the Corporation under this Article VIII or as otherwise provided
by law shall continue regardless of cessation of their status as
such and shall inure to the benefit of their respective heirs,
executors, administrators and legal representatives. Such rights
shall not prevent or restrict the power of the Corporation to
make or provide for any further indemnity, or provisions for
determining entitlement to indemnity, pursuant to one or more
indemnification agreements, bylaws, or other arrangements (in-
cluding, without limitation, creation of trust funds or security
interests funded by letters of credit or other means) approved by
the Board of Directors (whether or not any of the directors of
the Corporation shall be a party to or beneficiary of any such
agreements, bylaws or arrangements); provided, however, that any
provision of such agreements, bylaws or other arrangements shall
not be effective if and to the extent that it is determined to be
contrary to this Article VIII or applicable laws of the Common-
wealth of Virginia.
5. The rights to indemnity and payment or reimbursement
of expenses provided under this Article VIII shall extend to any
individual who, while a director or officer of the Corporation, is
or was serving at the Corporation's request as a director, officer,
partner, trustee (including service as a named fiduciary), employee,
or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise.
6. The provisions of this Article VIII shall be
applicable regardless of when a transition, occurrence or course
of conduct on which a proceeding is based, in whole or in part,
took place.
7. Each provision of this Article VIII shall be
severable, and an adverse determination as to any such provision
shall in no way affect the validity of any other provision. The
provisions of this Article VIII shall be in addition to, and not
in limitation of, all rights to indemnity and payment or reimburse-
ment of expenses required or permitted by applicable provisions of
law.
* * * * *
