Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Primex Form 8-K 4 21K
2: EX-2 Plan of Acquisition, Reorganization, Arrangement, 21± 90K
Liquidation or Succession
3: EX-3.1 Primex Technologies: Articles of Incorporation 12± 49K
4: EX-3.2 Primex Technologies: By-Laws 12± 49K
13: EX-10.10 Primex Technologies, Olin, Banks: Credit Agreement 67± 245K
14: EX-10.11 Material Contract 7± 31K
15: EX-10.12 Material Contract 10± 40K
5: EX-10.2 Material Contract 16± 66K
6: EX-10.3 Material Contract 11± 41K
7: EX-10.4 Material Contract 13± 53K
8: EX-10.5 Material Contract 7± 30K
9: EX-10.6 Material Contract 12± 50K
10: EX-10.7 Primex Technologies: Covenant Not to Compete 7± 31K
11: EX-10.8 Material Contract 14± 53K
12: EX-10.9 Material Contract 8± 34K
EX-3.1 — Primex Technologies: Articles of Incorporation
EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
of
PRIMEX TECHNOLOGIES, INC.
ARTICLE I
The name of the Corporation shall be Primex Technologies, Inc.
ARTICLE II
The purpose for which the Corporation is formed is to transact any or all
lawful business, not required to be specifically stated in these Articles, for
which corporations may be incorporated under the Virginia Stock Corporation Act,
as amended from time to time.
ARTICLE III
The aggregate number of shares that the Corporation shall have authority to
issue shall be 10,000,000 shares of Preferred Stock, par value $1 per share
(hereinafter called Preferred Stock), and 60,000,000 shares of Common Stock, par
value $1 per share (hereinafter called Common Stock).
The following is a description of each of said different classes of stock,
and a statement of the preferences, limitations, voting rights and relative
rights in respect of the shares of each such class:
1. The Board of Directors shall have authority, by resolution or
resolutions, at any time and from time to time to divide and establish any
or all of the unissued shares of Preferred Stock not then allocated to any
series of Preferred Stock into one or more series, and, without limiting
the generality of the foregoing, to fix and determine the designation of
each such series, the number of shares which shall constitute such series
and the following relative rights and preferences of the shares of each
series so established:
(a) The annual or other periodic dividend rate payable on
shares of such series, the time of payment thereof, whether such
dividends shall be cumulative or non-cumulative, and the date or dates
from which any cumulative dividends shall commence to accrue;
(b) the price or prices at which and the terms and
conditions, if any, on which shares of such series may be redeemed;
(c) the amounts payable upon shares of such series in the
event of the voluntary or involuntary dissolution, liquidation or
winding-up of the affairs of the Corporation;
(d) the sinking fund provisions, if any, for the redemption
or purchase of shares of such series;
(e) the extent of the voting powers, if any, of the shares
of such series;
(f) the terms and conditions, if any, on which shares of
such series may be converted into shares of stock of the Corporation
of any other class or classes or into shares of any other series of
the same or any other class or classes;
(g) whether, and if so the extent to which, shares of such
series may participate with the Common Stock in any dividends in
excess of the preferential dividend fixed for shares of such series or
in any distribution of the assets of the Corporation, upon a
liquidation, dissolution or winding-up thereof, in excess of the
preferential amount fixed for shares of such series; and
(h) any other preferences and relative, optional or other
special rights, and qualifications, limitations or restrictions of
such preferences or rights, of shares of such series not fixed and
determined by law or in this Article III.
2. Each series of Preferred Stock shall be so designated as to
distinguish the shares thereof from the shares of all other series.
Different series of Preferred Stock shall not be considered to constitute
different classes of shares for the purpose of voting by classes except as
otherwise fixed by the Board of Directors with respect to any series at the
time of the creation thereof.
3. So long as any shares of Preferred Stock are outstanding, the
Corporation shall not declare and pay or set apart for payment any
dividends (other than dividends payable in Common Stock or other stock of
the Corporation ranking junior to the Preferred Stock as to dividends) or
make any other distribution on such junior stock, if at the time of making
such declaration, payment or distribution the Corporation shall be in
default with respect to any dividend payable on, or any obligation to
retire, shares of Preferred Stock.
4. Shares of any series of Preferred Stock that have been redeemed
or otherwise reacquired by the Corporation (whether through the operation
of a sinking fund, upon conversion or otherwise) shall have the status of
authorized and unissued shares of Preferred Stock and may be redesignated
and reissued as a part of such series (unless prohibited by the articles of
amendment creating such series) or of any other series of Preferred Stock.
Shares of Common Stock that have been reacquired by the Corporation shall
have the status of authorized and unissued shares of Common Stock and may
be reissued.
5. Subject to the provisions of any applicable law or of the By-laws
of the Corporation as from time to time amended with respect to the closing
of the transfer books or the fixing of a record date for the determination
of shareholders entitled to vote, and except as otherwise provided by law
or in resolutions of the Board of Directors establishing any series of
Preferred Stock pursuant to the provisions of paragraph 1 of this Article
III, the holders of outstanding shares of Common Stock of the Corporation
shall exclusively possess voting power for the election of directors and
for all other purposes, each holder of record of shares of Common Stock of
the Corporation being entitled to one vote for each share of such stock
standing in his name on the books of the Corporation.
6. No holder of shares of stock of any class of the Corporation
shall, as such holder, have any right to subscribe for or purchase (a) any
shares of stock of any class of the Corporation, or any warrants, options
or other instruments that shall confer upon the holder thereof the right to
subscribe for or purchase or receive from the Corporation any shares of
stock of any class, whether or not such shares of stock, warrants, options
or other instruments are issued for cash or services or property or by way
of dividend or otherwise, or (b) any other security of the Corporation that
shall be convertible into, or exchangeable for, any shares of stock of the
Corporation of any class or classes, or to which shall be attached or
appurtenant any warrant, option or other instrument that shall confer upon
the holder of such security the right to subscribe for or purchase or
receive from the Corporation any shares of its stock of any class or
classes, whether or not such securities are issued for cash or services or
property or by way of dividend or otherwise, other than such right, if any,
as the Board of Directors, in its sole discretion, may from time to time
determine. If the Board of Directors shall offer to the holders of shares
of stock of any class of the Corporation, or any of them, any such shares
of stock, options, warrants, instruments or other securities of the
Corporation, such offer shall not, in any way, constitute a waiver or
release of the right of the Board of Directors subsequently to dispose of
other securities of the Corporation without offering the same to said
holders.
7. Anything herein to the contrary notwithstanding, dividends upon
shares of any class of stock of the Corporation shall be payable only out
of assets legally available for the payment of such dividends, and the
rights of the holders of shares of stock of the Corporation in respect of
dividends shall at all times be subject to the power of the Board of
Directors to determine what dividends, if any, shall be declared and paid
to the shareholders.
8. Subject to the provisions hereof and except as otherwise provided
by law, shares of stock of any class of the Corporation may be issued for
such consideration and for such corporate purposes as the Board of
Directors may from time to time determine.
9. Series A Participating Cumulative Preferred Stock. There is
hereby established a series of the Corporation's authorized Preferred
Stock, to be designated as the "Series A Participating Cumulative Preferred
Stock, par value $1 per share." The designation and number, and relative
rights, preferences and limitations of the Series A Participating
Cumulative Preferred Stock, insofar as not already fixed by any other
provision of these Articles of Incorporation, shall be as follows:
SECTION 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"), par value $1 per
share. The number of shares initially constituting the Series A
Preferred Stock shall be 250,000; PROVIDED, HOWEVER, that, if more
than a total of 250,000 shares of Series A Preferred Stock shall be
issuable upon the exercise of Rights (the "Rights") issued pursuant to
the Rights Agreement dated as of December 19, 1996, between the
Corporation and Chase Mellon Shareholder Services, L.L.C., 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 of the Articles of Incorporation of the
Corporation be properly executed and filed with the State Corporation
Commission of Virginia 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.
SECTION 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 of the
Corporation ranking prior and superior 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, as
and if declared by the Board of Directors, out of the assets of the
Corporation legally available therefor, (i) quarterly dividends
payable in cash on the last day of each fiscal quarter in each year,
or such other dates as the Board of Directors of the Corporation shall
approve (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, in the amount of $.01 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 (ii) 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 (the total of which shall not, in
any event, be less than zero) and (ii) dividends payable in cash on
the payment date for each cash dividend declared on the Common Stock
in an amount per whole share (rounded to the nearest cent) equal to
the Formula Number (as hereinafter defined) then in effect times the
cash dividends then to be paid on each share of Common Stock. In
addition, if the Corporation shall pay any dividend or make any
distribution on the Common Stock payable in assets, securities or
other forms of non-cash consideration (other than dividends or
distributions solely in shares of Common Stock), then, in each such
case, the Corporation shall simultaneously pay or make on each
outstanding whole share of Series A Preferred Stock a dividend or
distribution in like kind equal to the Formula Number then in effect
times such dividend or distribution on each share of the Common Stock.
As used herein, the "Formula Number" shall be 1,000; provided,
however, that, if at any time after December 31, 1996, the Corporation
shall (x) declare or pay any dividend on the Common Stock payable in
shares of Common Stock or make any distribution on the Common Stock in
shares of Common Stock, (y) subdivide (by a stock split or otherwise)
the outstanding shares of Common Stock into a larger number of shares
of Common Stock or (z) combine (by a reverse stock split or otherwise)
the outstanding shares of Common Stock into a smaller number of shares
of Common Stock, then, in each such event, the Formula Number shall be
adjusted to a number determined by multiplying the Formula Number in
effect immediately prior to such event by a fraction, the numerator of
which is the number of shares of Common Stock that are outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that are outstanding immediately
prior to such event (and rounding the result to the nearest whole
number); and PROVIDED FURTHER, that, if at any time after December 31,
1996, the Corporation shall issue any shares of its capital stock in a
merger, reclassification, or change of the outstanding shares of
Common Stock, then, in each such event, the Formula Number shall be
appropriately adjusted to reflect such merger, reclassification or
change so that each share of Preferred Stock continues to be the
economic equivalent of a Formula Number of shares of Common Stock
prior to such merger, reclassification or change.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in Section
2(a) immediately prior to or at the same time it declares a dividend
or distribution on the Common Stock (other than a dividend or
distribution solely in shares of Common Stock); PROVIDED, HOWEVER,
that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Common Stock) shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date,
a dividend of $.01 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 the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original
issue of such shares of Series A Preferred Stock; PROVIDED, HOWEVER,
that dividends on such shares that 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. Notwithstanding the foregoing, dividends on
shares of Series A Preferred Stock that are originally issued prior to
the record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend on the first
Quarterly Dividend Payment Date shall be calculated as if cumulative
from and after the last day of the fiscal quarter next preceding the
date of original issuance of such shares. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding.
(d) So long as any shares of the Series A Preferred Stock
are outstanding, no dividends or other distributions shall be
declared, paid or distributed, or set aside for payment or
distribution, on the Common Stock, unless, in each case, the dividend
required by this Section 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.
SECTION 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 Formula Number then in
effect, for each share of Series A Preferred Stock held of record on
each matter on which holders of the Common Stock or shareholders
generally are entitled to vote, multiplied by the maximum number of
votes per share which any holder of the Common Stock or shareholders
generally then have with respect to such matter (assuming any holding
period or other requirement to vote a greater number of shares is
satisfied).
(b) Except as otherwise provided herein or by applicable
law, the holders of shares of Series A Preferred Stock and the holders
of shares of Common Stock shall vote together as one class for the
election of directors of the Corporation and on all other matters
submitted to a vote of shareholders of the Corporation.
(c) If, at the time of any annual meeting of shareholders
for the election of directors, the equivalent of six quarterly
dividends (whether or not consecutive) payable on any share or shares
of Series A Preferred Stock are in default, the number of directors
constituting the Board of Directors of the Corporation shall be
increased by two. In addition to voting together with the holders of
Common Stock for the election of other directors of the Corporation,
the holders of record of the Series A Preferred Stock, voting
separately as a class to the exclusion of the holders of Common Stock,
shall be entitled at said meeting of shareholders (and at each
subsequent annual meeting of shareholders), unless all dividends in
arrears have been paid or declared and set apart for payment prior
thereto, to vote for the election of two directors of the Corporation,
the holders of any Series A Preferred Stock being entitled to cast a
number of votes per share of Series A Preferred Stock equal to the
Formula Number. Until the default in payments of all dividends that
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 of Series A
Preferred Stock 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 Common Stock
as set forth herein) for authorizing or taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS. (a) Whenever quarterly
dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding
shall have been paid in full, the Corporation shall not
(i) declare or pay dividends 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
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
SECTION 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) $.01 per whole share or (ii) an aggregate amount per share equal
to the Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Common Stock or (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.
SECTION 6. CONSOLIDATION, MERGER, ETC. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash or any other
property, then, in any such case, the then outstanding shares of
Series A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share equal to the Formula Number then
in effect times the aggregate amount of stock, securities, cash or any
other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is exchanged or changed. In the
event both this Section 6 and Section 2 appear to apply to a
transaction, this Section 6 will control.
SECTION 7. NO REDEMPTION; NO SINKING FUND. (a) The shares
of Series A Preferred Stock shall not be subject to redemption by the
Corporation or at the option of any holder of Series A Preferred
Stock; PROVIDED, HOWEVER, that the Corporation may purchase or
otherwise acquire outstanding shares of Series A Preferred Stock in
the open market or by offer to any holder or holders of shares of
Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be
subject to or entitled to the operation of a retirement or sinking
fund.
SECTION 8. RANKING. The Series A Preferred Stock shall
rank 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.
SECTION 9. FRACTIONAL SHARES. The Series A Preferred Stock
shall be issuable upon exercise of the Rights issued pursuant to the
Rights Agreement in whole shares or in any fraction of a share that is
one-thousandth (1/1,000) of a share or any integral multiple of such
fraction which shall entitle the holder, in proportion to such
holder's fractional shares, to receive dividends, exercise voting
rights, participate in distributions and have the benefit of all other
rights of holders of Series A Preferred Stock. In lieu of fractional
shares, the Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Stock, may elect (a) to make
a cash payment as provided in the Rights Agreement for fractions of a
share other than one-thousandth (1/1,000) of a share or any integral
multiple thereof or (b) to issue depository receipts evidencing such
authorized fraction of a share of Series A Preferred Stock pursuant to
an appropriate agreement between the Corporation and a depository
selected by the Corporation; PROVIDED that such agreement shall
provide that the holders of such depository receipts shall have all
the rights, privileges and preferences to which they are entitled as
holders of the Series A Preferred Stock.
SECTION 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, par value $1
per share, of the Corporation, undesignated as to series, and may
thereafter be reissued as part of a new series of such Preferred
Shares as permitted by law.
SECTION 11. AMENDMENT. None of the powers, preferences and
relative, participating, optional and other special rights of the
Series A Preferred Stock as provided herein or in the Articles of
Incorporation shall be amended in any manner that would alter or
change the powers, preferences, rights or privileges of the holders of
Series A Preferred Stock so as to affect such holders adversely
without the affirmative vote of the holders of at least 66-2/3% of the
outstanding shares of Series A Preferred Stock, voting as a separate
class; PROVIDED, HOWEVER, that no such amendment approved by the
holders of at least 66-2/3% of the outstanding shares of Series A
Preferred Stock shall be deemed to apply to the powers, preferences,
rights or privileges of any holder of shares of Series A Preferred
Stock originally issued upon exercise of a Right after the time of
such approval without the approval of such holder.
ARTICLE IV
The period of the duration of the Corporation is unlimited and perpetual.
ARTICLE V
1. The number of directors shall be as specified in the By-laws of
the Corporation but such number may be increased or decreased from time to
time in such manner as may be prescribed in the By-laws. In the absence of
a By-law specifying the number of directors, the number shall be nine. The
Board of Directors shall be divided into three classes, Class I, Class II,
and Class III, as nearly equal in number as possible. The initial term of
each class of directors shall expire at the annual meeting of shareholders
to be held in the following years: Class I - 1997; Class II - 1998; and
Class III - 1999. At the 1997 annual meeting of shareholders, directors of
the first class (Class I) shall be elected to hold office for a term
expiring at the 2000 annual meeting of shareholders. At each annual
meeting of shareholders after 1997, the successors to the class of
directors whose term shall then expire shall be identified as being of the
same class of directors they succeed and shall be elected to hold office
for a term expiring at the third succeeding annual meeting of shareholders.
When the number of directors is changed, any newly-created directorships or
any decrease in directorships shall be so apportioned among the classes by
the Board of Directors as to make all classes as nearly equal in number as
possible.
2. Subject to the rights of the holders of any Preferred Stock then
outstanding, directors may be removed only with cause.
3. Subject to the rights of the holders of any Preferred Stock then
outstanding, newly-created directorships resulting from any increase in the
number of directors and any vacancies in the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled solely by the Board of Directors or at an annual meeting of
shareholders by the shareholders entitled to vote on the election of
directors. If the directors remaining in office constitute fewer than a
quorum of the Board, they may fill the vacancy by the affirmative vote of a
majority of the directors remaining in office.
4. Notwithstanding any other provision of these Articles of
Incorporation or any provision of law which might otherwise permit a lesser
vote, but in addition to any affirmative vote of the holders of any
particular class or series of the stock of the Corporation required by law,
these Articles of Incorporation or any Preferred Stock outstanding, the
affirmative vote of at least 80 percent of the outstanding shares of the
Corporation entitled to vote generally at any annual or special meeting of
the shareholders shall be required to alter, amend or repeal paragraph 1 of
this Article V.
ARTICLE VI
Except as expressly otherwise required in these Articles of Incorporation,
an amendment or restatement of these Articles requiring shareholder approval
shall be approved by a majority of the votes entitled to be cast by each voting
group that is entitled to vote on the matter, unless in submitting an amendment
or restatement to the shareholders the Board of Directors shall require a
greater vote.
ARTICLE VII
1. Every person who is or was a director, officer or employee of the
Corporation, or who, at the request of the Corporation, serves or has
served in any such capacity with another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise shall be
indemnified by the Corporation against any and all liability and reasonable
expense that may be incurred by him in connection with or resulting from
any claim, action or proceeding (whether brought in the right of the
Corporation or any such other corporation, entity, plan or otherwise), in
which he may become involved, as a party or otherwise, by reason of his
being or having been a director, officer or employee of the Corporation, or
such other corporation, entity or plan while serving at the request of the
Corporation, whether or not he continues to be such at the time such
liability or expense is incurred, unless such person engaged in willful
misconduct or a knowing violation of the criminal law.
As used in this Article VII: (a) the terms "liability" and "expense"
shall include, but shall not be limited to, counsel fees and disbursements
and amounts of judgments, fines or penalties against, and amounts paid in
settlement by, a director, officer or employee; (b) the terms "director,"
"officer" and employee," unless the context otherwise requires, include the
estate or personal representative of any such person; (c) a person is
considered to be serving an employee benefit plan as a director, officer or
employee of the plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by, him to
the plan or, in connection with the plan, to participants in or
beneficiaries of the plan; (d) the term "occurrence" means any act or
failure to act, actual or alleged, giving rise to a claim, action or
proceeding; and (e) service as a trustee or as a member of a management or
similar committee of a partnership, joint venture or limited liability
company shall be considered service as a director, officer or employee of
the trust, partnership, joint venture or limited liability company.
The termination of any claim, action or proceeding, civil or criminal,
by judgment, settlement, conviction or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that a director, officer or
employee did not meet the standards of conduct set forth in this paragraph
1. The burden of proof shall be on the Corporation to establish, by a
preponderance of the evidence, that the relevant standards of conduct set
forth in this paragraph 1 have not been met.
2. Any indemnification under paragraph 1 of this Article VII shall
be made unless (a) the Board, acting by a majority vote of those directors
who were directors at the time of the occurrence giving rise to the claim,
action or proceeding involved and who are not at the time parties to such
claim, action or proceeding (provided there are at least five such
directors), finds that the director, officer or employee has not met the
relevant standards of conduct set forth in such paragraph 1, or (b) if
there are not at least five such directors, the Corporation's principal
Virginia legal counsel, as last designated by the Board as such prior to
the time of the occurrence giving rise to the claim, action or proceeding
involved, or in the event for any reason such Virginia counsel is unwilling
to so serve, then Virginia legal counsel mutually acceptable to the
Corporation and the person seeking indemnification, deliver to the
Corporation their written advice that, in their opinion, such standards
have not been met.
3. Expenses incurred with respect to any claim, action or proceeding
of the character described in paragraph 1 shall, except as otherwise set
forth in this paragraph 3, be advanced by the Corporation prior to the
final disposition thereof upon receipt of an undertaking by or on behalf of
the recipient to repay such amount if it is ultimately determined that he
is not entitled to indemnification under this Article VII. No security
shall be required for such undertaking and such undertaking shall be
accepted without reference to the recipient's final ability to make
repayment. Notwithstanding the foregoing, the Corporation may refrain
from, or suspend, payment of expenses in advance if at any time before
delivery of the final finding described in paragraph 2, the Board or
Virginia legal counsel, as the case may be, acting in accordance with the
procedures set forth in paragraph 2, find by a preponderance of the
evidence then available that the officer, director or employee has not met
the relevant standards of conduct set forth in paragraph 1.
4. No amendment or repeal of this Article VII shall adversely affect
or deny to any director, officer or employee the rights of indemnification
provided in this Article VII with respect to any liability or expense
arising out of a claim, action or proceeding based in whole or substantial
part on an occurrence the inception of which takes place before or while
this Article VII, as set forth in these Amended and Restated Articles of
Incorporation, is in effect. The provisions of this paragraph 4 shall
apply to any such claim, action or proceeding whenever commenced, including
any such claim, action or proceeding commenced after any amendment or
repeal to this Article VII.
5. The rights of indemnification provided in this Article VII shall
be in addition to any rights to which any such director, officer or
employee may otherwise be entitled by contraction or as a matter of law.
6. In any proceeding brought by or in the right of the Corporation
or brought by or on behalf of shareholders of the Corporation, no director
or officer of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages with respect to any transaction,
occurrence or course of conduct, whether prior or subsequent to the
effective date of this Article VII, except for liability resulting from
such person's having engaged in willful misconduct or a knowing violation
of the criminal law or any federal or state securities law.
Dates Referenced Herein and Documents Incorporated by Reference
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