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):
March 18, 1998
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)
1000 Virginia Center Parkway
P. O. Box 4229
Glen Allen, VA 23058-4229
(Address of principal (Zip Code)
executive offices)
(804)553-3600
(Registrant's telephone number, including area code)
Item 5. Other Events
The board of directors of The Pittston Company (the
"Company") has adopted articles of restatement and articles of
correction that amend and restate the Company's Articles of
Incorporation. The Restated Articles of Incorporation, as
corrected, became effective on March 18, 1998, and are attached
hereto as Exhibit 3(i).
EXHIBITS
Exhibit 3(i) Restated Articles of Incorporation of The Pittston
Company, as corrected, effective March 18, 1998
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)
By /s/ Austin F. Reed
Secretary
Dated: March 19, 1998
EXHIBITS
Exhibit Description
3(i) Restated Articles of Incorporation of The Pittston
Company, as corrected, effective March 18, 1998
EXHIBIT 3(i)
ARTICLES OF CORRECTION
FOR
THE PITTSTON COMPANY
1. The name of the corporation is THE PITTSTON COMPANY.
2. The text of the restated articles of incorporation, as
corrected, is set forth below:
"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
EACH REFERENCE IN THIS ARTICLE III TO "BAX" SHALL BE DEEMED TO
REFER TO "BURLINGTON" UNTIL MAY 4, 1998. AS OF MAY 4, 1998, EACH
REFERENCE IN THIS ARTICLE III TO "BAX" SHALL BE DEEMED TO REFER
TO "BAX."
The total number of shares of capital stock which the
Corporation shall have authority to issue is one hundred
seventy-two million (172,000,000), 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 Brink's Group Common
Stock, par value $1.00 per share ("Brink's Stock"), fifty million
(50,000,000) shares shall be shares of a class of common stock
designated as Pittston BAX Group Common Stock, par value $1.00
per share ("BAX Stock"), and twenty million (20,000,000) shares
shall be shares of Pittston Minerals Group Common Stock, par
value $1.00 per share ("Minerals Stock"). Brink's Stock, BAX
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 Brink's Stock, BAX Stock and Minerals Stock upon the terms
provided for below with respect to each such class:
(i) Dividends on Brink's Stock and BAX Stock.
Dividends on Brink's Stock and/or BAX 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 Brink's Stock and BAX 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 Among Brink's Stock, BAX 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 Brink's
Stock, exclusively on BAX Stock, exclusively on Minerals Stock or
on any combination or all of 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 Brink's Stock, BAX Stock
and Minerals Stock are subject to exchange upon the terms
provided below:
(a) Exchange of Brink's Stock. Outstanding shares
of Brink's Stock shall not be subject to either optional or
mandatory exchange by the Board of Directors.
(b) Exchange of BAX 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 BAX 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
BAX 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 BAX Stock
for fully paid and nonassessable shares of Brink's Stock (or, if
there are not shares of Brink's Stock outstanding on the Exchange
Date, of Minerals Stock, or, if there are no shares of Minerals
Stock outstanding on the Exchange Date and shares of another
class or classes of Common Stock (other than BAX Stock) are then
outstanding, of such other class of Common Stock as then has the
largest Aggregate Market Capitalization) having a Fair Market
Value equal to 115 percent of the Fair Market Value of one share
of BAX Stock, as of the date of the first public announcement by
the Corporation of such Disposition.
(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 BAX Stock shall
be exchanged, on an Exchange Date set forth in a notice to
holders of BAX Stock pursuant to Section 2(e)(i), for fully paid
and nonassessable shares of Brink's Stock (or, if there are no
shares of Brink's Stock outstanding on the Exchange Date, of
Minerals Stock, or, if there are no shares of Minerals Stock
outstanding, and shares of another class or classes of Common
Stock (other than BAX Stock) are then outstanding, of such other
class of Common Stock as then has the largest Aggregate Market
Capitalization) having a Fair Market Value equal to 115 percent
of the Fair Market Value of one share of BAX 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 BAX Stock were exchanged, any share of BAX
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 BAX Stock, be exchanged for the amount of
shares of Brink's 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 BAX 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) 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 Brink's Stock (or, if there are no shares of Brink's Stock
outstanding on the Exchange Date, of BAX Stock, or, if there are
no shares of BAX 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 Aggregate Market
Capitalization) having a Fair Market Value equal to 115 percent
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.
(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(e)(i), for fully
paid and nonassessable shares of Brink's Stock (or, if there are
no shares of Brink's Stock outstanding on the Exchange Date, of
BAX Stock, or if there are no shares of BAX 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
Aggregate Market Capitalization) having a Fair Market Value equal
to 115 percent 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 Brink's 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(c)(iii) shall not apply to the
extent that equivalent adjustments are otherwise made pursuant to
the provisions of such Convertible Securities.
(d) Certain Definitions. For purposes of Sections
2(b)(i) and 2(c)(i):
(i) as of any date, "substantially all of the
properties and assets" of Pittston BAX Group or Pittston Minerals
Group, as the case may be, shall mean a portion of such
properties and assets that represents at least 80 percent 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 BAX Group or Pittston Minerals
Group, respectively, 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);
(ii) 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 BAX
Group or Pittston Minerals Group, respectively, owned by such
person, entity or group shall be deemed to have occurred; and
(iii) 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.
(e) General Exchange Provisions.
(i) In the event of any exchange pursuant to
Sections 2(b)(i) and (ii) or 2(c)(i) and (ii), the Corporation
shall cause to be given to each holder of BAX Stock or Minerals
Stock, respectively, a notice stating (A) that shares of BAX
Stock or Minerals Stock, respectively, 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
BAX Stock or Minerals Stock, respectively, held by such holder,
including details as to the calculation thereof, (D) the place or
places where certificates for shares of BAX Stock or Minerals
Stock, respectively, 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(e)(iii),
dividends on BAX Stock or Minerals Stock, respectively, 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 BAX Stock or Minerals Stock, respectively, 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 BAX Stock or Minerals Stock,
respectively, nor any defect therein shall affect the sufficiency
thereof with respect to any other holder of BAX Stock or Minerals
Stock, respectively.
(ii) The Corporation shall not be required to
issue or deliver fractional shares of any class of capital stock
to any holder of BAX Stock or Minerals Stock, as the case may be,
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 BAX Stock or 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 BAX Stock or Minerals
Stock, as the case may be; provided, however, that, if the
Exchange Date with respect to BAX Stock or Minerals Stock, as the
case may be, 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 BAX Stock or
Minerals Stock, respectively, 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 BAX Stock or
Minerals Stock, as the case may be, shall be entitled to receive
certificates representing shares of any capital stock to be
received by such holder with respect to such shares of BAX Stock
or Minerals Stock, respectively, pursuant to this Section 2, such
holder shall surrender at such office as the Corporation shall
specify certificates for such shares of BAX Stock or 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 BAX Stock or Minerals Stock deliver to the
person for whose account such shares of BAX Stock or 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(e)(ii).
(v) From and after any applicable Exchange Date,
all rights of a holder of shares of BAX Stock or Minerals Stock,
as the case may be, that were exchanged shall cease except for
the right, upon surrender of the certificates representing such
shares of BAX Stock or Minerals Stock, respectively, to receive
certificates representing shares of the capital stock for which
such shares were exchanged together with any fractional payment
contemplated by Section 2(e)(ii) and rights to dividends as
provided in Section 2(e)(iii). No holder of a certificate that
immediately prior to the applicable Exchange Date for BAX Stock
or Minerals Stock, as the case may be, represented shares of BAX
Stock or Minerals Stock, respectively, shall be entitled to
receive any dividend or other distribution with respect to shares
of any kind of capital stock into which BAX Stock or Minerals
Stock, respectively, 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
BAX Stock or Minerals Stock, the Corporation shall, however, be
entitled to treat the certificates for BAX Stock or Minerals
Stock, respectively, 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 BAX
Stock or 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 BAX Stock or 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
BAX Stock or 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 Brink's Stock, BAX 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 Brink's Stock, BAX 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
Brink's Stock, BAX 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
Brink's Stock shall be entitled to one vote, in person or by
proxy, for each share of Brink's 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 BAX Stock and each holder of Minerals Stock
shall be entitled to one vote and 0.626 votes, respectively, in
person or by proxy, for each share of BAX Stock or Minerals
Stock, respectively, standing in his or her name on the stock
transfer books of the Corporation from the Effective Date to and
including December 31, 1997. On January 1, 1998, and on each
January 1 every two years thereafter, the number of votes to
which the holder of each share of BAX Stock and 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 (x) the
Aggregate Market Capitalization of BAX Stock or Minerals Stock,
respectively, on each such date and (y) the Aggregate Market
Capitalization of the Corporation on each such date, divided by
the number of shares of BAX Stock or Minerals Stock,
respectively, outstanding on each such date with the resulting
number multiplied by the number determined by dividing the number
of shares of Brink's Stock outstanding on each such date by the
quotient of (i) the Aggregate Market Capitalization of Brink's
Stock on each such date and (ii) the Aggregate Market
Capitalization of the Corporation 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 in a vote of holders
of Minerals Stock, voting as a separate voting group, by the
greater of: (i) the affirmative vote of two-thirds of all votes
cast on the amendment by the holders of Minerals Stock entitled
to vote on such amendment and present or represented at a meeting
at which a quorum of Minerals Stock exists; or (ii) the
affirmative vote of a majority of the then outstanding votes of
Minerals Stock. The Board of Directors shall take such action to
implement such changes in the voting rights of BAX Stock or
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 Brink's Stock,
BAX 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 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 Brink's Stock shall be entitled to
receive, on a per share basis in proportion to the total number
of then outstanding shares of Brink's Stock to the Total
Liquidation Shares, (b) the holders of BAX Stock shall be
entitled to receive, on a per share basis in proportion to the
total number of then outstanding shares of BAX Stock to the Total
Liquidation Shares and (c) the holders of Minerals Stock shall be
entitled to receive, on a per share basis in proportion to the
then outstanding shares of Minerals Stock increased by the
Nominal Shares to the Total Liquidation Shares, in each case
determined 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 any of Brink's Stock, BAX Stock or Minerals
Stock, the voting and liquidation rights of BAX Stock and
Minerals Stock relative to Brink's Stock shall be appropriately
adjusted so as to avoid any dilution in the aggregate voting or
liquidation rights of any 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:
"Aggregate Market Capitalization" shall mean, with respect
to the Company or any class of Common Stock as of any date of
determination, the product of (i) the Fair Market Value of all
classes of Common Stock or any such class, as the case may be, as
of such date and (ii) the number of shares of all such classes of
Common Stock or of any such class, as the case may be, issued and
outstanding as of such date.
"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 June 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
13.1-643 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 Brink's Stock, BAX 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 Brink's Stock, BAX 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.
<PAGE>
"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 BAX Stock or Minerals Stock, as the case may be, as set
forth in a notice to holders of BAX Stock or Minerals Stock,
respectively, pursuant to Section 2(e)(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.
"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.
"Nominal Shares" shall mean 4,202,954 shares of Minerals
Stock which has been used to establish the initial liquidation
percentages among each class of Common Stock as of the Effective
Date.
"Pittston Brink's 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
constituting Pittston BAX Group or Pittston Minerals Group.
"Pittston BAX Group" shall mean, at any time, (a) all the
businesses in which Burlington Air Express Inc. and its
subsidiaries (or any of their predecessors) are or have been
engaged, directly or indirectly, (b) 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 (c) such
businesses, assets, and liabilities acquired by the Corporation
for Pittston BAX Group after the Effective Date and determined by
the Board of Directors to be included in Pittston BAX Group.
"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.
"Total Liquidation Shares" shall mean, as of any date, the
total number of outstanding shares of Brink's Stock, BAX Stock
and Minerals Stock on such date, plus the Nominal Shares.
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 percent 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.
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 Brink's Group Rights
issued pursuant to the Amended and Restated Rights Agreement
dated as of January 19, 1996, 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 Brink's Stock in an amount per whole
share (rounded to the nearest cent) equal to the Brink's Formula
Number (as defined below) then in effect times the cash dividends
then to be paid on each share of Brink's Stock. In addition, if
the Corporation shall pay any dividend or make any distribution
on Brink's Stock payable in assets, securities or other forms of
noncash consideration (other than dividends or distributions
solely in shares of Brink's 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 Brink's Formula Number then in effect times such
dividend or distribution on each share of Brink's Stock. As used
herein, the "Brink's Formula Number" shall be 1,000; provided,
however, that if at any time after January 19, 1996, the
Corporation shall (x) declare or pay any dividend on Brink's
Stock payable in shares of Brink's Stock or make any distribution
on Brink's Stock in shares of Brink's Stock, (y) subdivide (by a
stock split or otherwise) the outstanding shares of Brink's Stock
into a larger number of shares of Brink's Stock or (z) combine
(by a reverse stock split or otherwise) the outstanding shares of
Brink's Stock into a smaller number of shares of Brink's Stock,
then in each such event the Brink's Formula Number shall be
adjusted to a number determined by multiplying the Brink's
Formula Number in effect immediately prior to such event by a
fraction, the numerator of which is the number of shares of
Brink's Stock that are outstanding immediately after such event
and the denominator of which is the number of shares of Brink's
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 January 19, 1996, the
Corporation shall issue any shares of its capital stock in a
reclassification or change of the outstanding shares of Brink's
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 Brink's
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 Brink's Stock (other than
a dividend or distribution solely in shares of Brink's Stock);
provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution in shares of Brink's
Stock) shall have been declared on Brink's 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 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 Brink's 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 Brink's 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
Brink's Formula Number then in effect for each share of Series A
Preferred Stock held of record on each matter on which holders of
Brink's Stock are entitled to vote times (2) the maximum number
of votes per share which the holders of Brink's 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 Brink's 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 Brink's Stock shall vote
together as one class on all other matters submitted to a vote of
holders of Brink's 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 Brink's 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
Brink's 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) $26.67 per share or (ii) an
aggregate amount per share equal to the Brink's Formula Number
then in effect times the aggregate amount to be distributed per
share to holders of Brink's 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 Brink's 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 Brink's Formula Number then in effect times
the aggregate amount of stock, securities, cash or other property
(payable in kind), as the case may be, into which or for which
each share of Brink's 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
percent 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 percent of the product
of the Brink's Formula Number times the Brink's Stock Market
Value (as such term is hereinafter defined), 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 "Brink's Stock Market Value" on any date shall be deemed to
be the average of the daily closing prices, per share, of Brink's
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
Brink's Stock is listed or admitted to trading on a national
securities exchange or, if Brink's 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 Brink's 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
Brink's Stock selected by the Board of Directors of the
Corporation. If on any such Trading Day no market maker is
making a market in Brink's Stock, the fair value of Brink's Stock
on such Trading Day shall mean the fair value of Brink's 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 Brink's Stock is
listed or admitted to trading is open for the transaction of
business or, if Brink's 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 Brink's Stock, Minerals Stock and BAX Stock, on a
parity with the Corporation's Series B Participating Cumulative
Preferred Stock, par value $10 per share, and the Corporation's
Series D 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 Brink's 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 depositary receipts pursuant to an appropriate
agreement between the Corporation and a depositary selected by
the Corporation; provided that such agreement shall provide that
the holders of such depositary 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
cancellation 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 percent 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 January 19, 1996, 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 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 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 B
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 per share 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 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
Mineral 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 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 percent 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 percent of the product of the Minerals Formula Number
times the Minerals Stock Market Value (as such term is
hereinafter defined), 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 "Minerals Stock
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 marketmaker 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 Brink's Stock, Minerals Stock and BAX Stock, on a
parity with the Corporation's Series A Participating Cumulative
Preferred Stock, par value $10 per share, and the Corporation's
Series D 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 depositary
receipts pursuant to an appropriate agreement between the
Corporation and a depositary selected by the Corporation;
provided that such agreement shall provide that the holders of
such depositary 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
cancellation 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 percent of
the outstanding shares of Series B Preferred Stock, voting as a
separate class.
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.
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 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 Brink's Stock, BAX 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, the 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 percent 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 Brink's Stock, BAX Stock or other Common
Stock (other than Minerals 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 of
Brink's Stock or BAX Stock, at which time there is another class
of Common Stock outstanding other than Brink's Stock or BAX
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 a
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 percent 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 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 percent 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 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 percent in such Price;
provided, however, that any adjustment 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 (a "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 date 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 the 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 Brink's Stock,
BAX Stock or any other Common 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 such Common
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
such Common 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 for outstanding shares of Minerals Stock
for shares of Brink's Stock, BAX Stock or any other Common 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 Brink's Stock, BAX Stock or any
other Common 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 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
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
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 percent 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 percent 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.
D. Series D Participating Cumulative Preferred Stock
1. Designation and Number of Shares. The shares of
such series shall be designated as "Series D Participating
Cumulative Preferred Stock" (the "Series D Preferred Stock").
The number of shares initially constituting the Series D
Preferred Stock shall be 50,000; provided, however, that if more
than a total of 50,000 shares of Series D Preferred Stock shall
be issuable upon the exercise of Pittston BAX Group Rights issued
pursuant to the Amended and Restated Rights Agreement dated as of
January 10, 1996, 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 D 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 D Preferred Stock with respect
to dividends, the holders of shares of the Series D 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 D Preferred Stock, of $10.00 per whole share
(rounded to the nearest cent) less the amount of all cash
dividends declared on the Series D 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 D Preferred Stock, and (2)
dividends payable in cash on the payment date for each cash
dividend declared on BAX Stock in an amount per whole share
(rounded to the nearest cent) equal to the Burlington Formula
Number (as defined below) then in effect times the cash dividends
then to be paid on each share of BAX Stock. In addition, if the
Corporation shall pay any dividend or make any distribution on
BAX Stock payable in assets, securities or other forms of noncash
consideration (other than dividends or distributions solely in
shares of BAX Stock), then, in each such case, the Corporation
shall simultaneously pay or make on each outstanding share of
Series D Preferred Stock a dividend or distribution in like kind
of the Burlington Formula Number then in effect times such
dividend or distribution on each share of BAX Stock. As used
herein, the "Burlington Formula Number" shall be 1,000; provided,
however, that if at any time after January 19, 1996, the
Corporation shall (x) declare or pay any dividend on BAX Stock
payable in shares of BAX Stock or make any distribution on BAX
Stock in shares of BAX Stock, (y) subdivide (by a stock split or
otherwise) the outstanding shares of BAX Stock into a larger
number of shares of BAX Stock or (z) combine (by a reverse stock
split or otherwise) the outstanding shares of BAX Stock into a
smaller number of shares of BAX Stock, then in each such event
the Burlington Formula Number shall be adjusted to a number
determined by multiplying the Burlington Formula Number in effect
immediately prior to such event by a fraction, the numerator of
which is the number of shares of BAX Stock that are outstanding
immediately after such event and the denominator of which is the
number of shares of BAX 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 January
19, 1996, the Corporation shall issue any shares of its capital
stock in a reclassification or change of the outstanding shares
of BAX 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 Burlington
Formula Number shall be appropriately adjusted to reflect such
reclassification or change.
(b) The Corporation shall declare a dividend or
distribution on the Series D Preferred Stock as provided in
Section 2(a) above immediately prior to or at the same time it
declares a dividend or distribution on BAX Stock (other than a
dividend or distribution solely in shares of BAX Stock);
provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution in shares of BAX Stock)
shall have been declared on BAX 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 D 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 D 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 BAX Stock.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series D Preferred Stock from and after
the Quarterly Dividend Payment Date next preceding the date of
original issue of such shares of Series D 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 D 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 D 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 D Preferred
Stock are outstanding, no dividends or other distributions shall
be declared, paid or distributed, or set aside for payment or
distribution, on BAX Stock unless, in each case, the dividend
required by this Section 2 to be declared on the Series D
Preferred Stock shall have been declared.
(e) The holders of the shares of Series D 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 D
Preferred Stock shall have the following voting rights:
(a) Each holder of Series D Preferred Stock shall be
entitled to a number of votes equal to the product of (1) the
Burlington Formula Number then in effect for each share of Series
D Preferred Stock held of record on each matter on which holders
of BAX Stock are entitled to vote times (2) the maximum number of
votes per share which the holders of BAX Stock then have with
respect to such matter.
(b) Except as otherwise provided herein or by
applicable law, the holders of shares of Series D Preferred
Stock, the holders of shares of BAX 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
D Preferred Stock and the holders of BAX Stock shall vote
together as one class on all other matters submitted to a vote of
holders of BAX 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 D 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 D 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 D
Preferred Stock being entitled to cast a number of votes per
share of Series D Preferred Stock equal to the Burlington 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 D 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 D Preferred
Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by
applicable law, holders of Series D 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
BAX 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 D 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 D 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 D 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 D Preferred Stock, except dividends paid ratably
on the Series D 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 D 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 D Preferred
Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series D Preferred Stock, or any
shares of stock ranking on a parity with the Series D 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 D
Preferred Stock unless, prior thereto, the holders of shares of
Series D 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) $26.67 per share of (ii) an
aggregate amount per share equal to the Burlington Formula Number
then in effect times the aggregate amount to be distributed per
share to holders of BAX 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 D Preferred Stock,
except distributions made ratably on the Series D 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 BAX 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 D Preferred Stock shall at the
same time be similarly exchanged or changed in an amount per
share equal to the Burlington 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 BAX Stock is exchanged or changed.
7. Redemption; No Sinking Fund.
(a) The outstanding shares of Series D 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 percent 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 percent of the product of the Burlington Formula Number
times the BAX Stock Market Value (as such term is hereinafter
defined), 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 "BAX Stock Market Value" on any
date shall be deemed to be the average of the daily closing
prices, per share, of BAX 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 BAX Stock is listed or admitted to trading on
a national securities exchange or, if BAX 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 BAX 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 BAX
Stock selected by the Board of Directors of the Corporation. If
on any such Trading Day no market maker is making a market in BAX
Stock, the fair value of BAX Stock on such Trading Day shall mean
the fair value of BAX 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 BAX Stock is listed or admitted to trading is open for the
transaction of business or, if BAX 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 D Preferred Stock shall not
be subject to or entitled to the operation of a retirement or
sinking fund.
8. Ranking. The Series D Preferred Stock shall rank
senior to Brink's Stock, Minerals Stock and BAX Stock, on a
parity with the Corporation's Series A Participating Cumulative
Preferred Stock, par value $10 per share, and 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 D Preferred Stock shall
be issuable upon exercise of Pittston BAX 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 D Preferred Stock,
either (1) certificates may be issued to evidence such authorized
fraction of a share of Series D Preferred Stock, or (2) any such
authorized fraction of a share of Series D Preferred Stock may be
evidenced by depositary receipts pursuant to an appropriate
agreement between the Corporation and a depositary selected by
the Corporation; provided that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as
beneficial owners of the Series D Preferred Stock.
10. Reacquired Shares. Any shares of Series D 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
cancellation 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 D 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 D Preferred Stock
so as to affect them adversely without the affirmative vote of
the holders of more than 66-2/3 percent of the outstanding shares
of Series D 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
securities.
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
Incorporation 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
The private property of the shareholders of the Corporation
shall not be subject to payment of corporate debts to any extent
whatever.
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
Corporation 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
director 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 Corporation 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 Act 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 determinations 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
(including, 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 Commonwealth 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 transaction, occurrence or course of conduct
on which a proceeding is based, in whole or in part, took place.
7. Each provision in 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
reimbursement of expenses required or permitted by applicable
provisions of law.
3. Pursuant to Section 13.1-607 of the Virginia Stock
Corporation Act, the Board of Directors of Pittston Company has
authorized this correction of the Restated Articles of
Incorporation.
IN WITNESS WHEREOF, The Pittston Company has caused this
instrument to be signed by its Secretary this 16th day of March,
1998.
THE PITTSTON COMPANY
By /s/ Austin F. Reed
Austin F. Reed, Secretary
