EXHIBIT 99.3
FORM OF CERTIFICATE OF DESIGNATION AND
TERMS OF PARTICIPATING PREFERRED STOCK
OF KLLM TRANSPORT SERVICES, INC., INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, and
________________ , the , and
, respectively, of KLLM Transport Services, Inc., a Delaware
corporation (the "Corporation"), do hereby certify as
follows:
Pursuant to authority granted by [Article (FOURTH) of the
Restated Certificate of Incorporation of the Corporation],
as amended, and in accordance with the provisions of Section
151 of the General Corporation Law of the State of Delaware,
the Board of Directors of the Corporation has adopted the
following resolutions fixing the designation and certain
terms, powers, preferences and other rights of a new series
of the Corporation's Preferred Stock, par value $0.01 per
share, and certain qualifications, limitations and
restrictions thereon:
RESOLVED, that there is hereby established a series of
Preferred Stock, par value $0.01 per share, of the
Corporation, and the designation and certain terms, powers,
preferences and other rights of the shares of such series,
and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall
be "Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in
all respects with the other shares of this Series except as
to the dates from and after which dividends thereon shall be
cumulative.
(ii) The number of shares in this Series shall initially
be , which number may from time to time be increased
or decreased (but not below the number then outstanding) by
the Board of Directors. Shares of this Series purchased by
the Corporation shall be cancelled and shall revert to
authorized but unissued shares of Preferred Stock
undesignated as to series. Shares of this Series may be
issued in fractional shares, which fractional shares shall
entitle the holder, in proportion to such holder's
fractional share, to all rights of a holder of a whole share
of this Series.
(iii) The holders of full or fractional shares of this
Series shall be entitled to receive, when and as declared by
the Board of Directors, but only out of funds legally
available therefor, dividends, (A) on each date that
dividends or other distributions (other than dividends or
distributions payable in Common Stock of the Corporation)
are payable on or in respect of Common Stock comprising part
of the Reference Package (as defined below), in an amount
per whole share of this Series equal to the aggregate amount
of dividends or other distributions (other than dividends or
distributions-payable in Common Stock of the Corporation)
that would be payable on such date to a holder of the
Reference Package and (B) on the last day of March, June,
September and December in each year, in an amount per whole
share of this Series equal to the excess (if any) of $
over the aggregate dividends paid per whole share of this
Series during the three month period ending on such last
day. Each such dividend shall be paid to the holders of
record of shares of this Series on the date, not exceeding
sixty days preceding such dividend or distribution payment
date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend or
distribution. Dividends on each full and each fractional
share of this Series shall be cumulative from the date such
full or fractional share is originally issued; provided that
any such full or fractional share originally issued after a
dividend record date and on or prior to the dividend payment
date to which such record date relates shall not be entitled
to receive the dividend payable on such dividend payment
date or any amount in respect of the period from such
original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 100 shares
of Common Stock, par value $0.01 per share ("Common Stock"),
of the Corporation. In the event the Corporation shall at
any time after the close of business on
19___ (A) declare or pay a dividend on any Common Stock
payable in Common Stock, (B) subdivide any Common Stock or
(C) combine any Common Stock into a smaller number of
shares, then and in each such case the Reference Package
after such event shall be the Common Stock that a holder of
the Reference Package immediately prior to such event would
hold thereafter as a result thereof.
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.
So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any
other stock ranking junior to this Series as to dividends
and upon liquidation) shall be declared or paid or set aside
for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to 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 (including the dividend to be due upon payment of
such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall
have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation,
reclassification or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any
such case the shares of this Series shall at the same time
be similarly exchanged or changed in an amount per whole
share equal to the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be
entitled to receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation, whether voluntary or
involuntary, the holders of full and fractional shares of
this Series shall be entitled, before any distribution or
payment is made on any date to the holders of the Common
Stock or any other stock of the Corporation ranking junior
to this Series upon liquidation, to be paid in full an
amount per whole share of this Series equal to the greater
of (A) $ or (B) the aggregate amount distributed or
to be distributed prior to such date in connection with such
liquidation, dissolution or winding up to a holder of the
Reference Package (such greater amount being hereinafter
referred to as the "Liquidation Preference"), together with
accrued dividends to such distribution or payment date,
whether or not earned or declared. If such payment shall
have been made in full to all holders of shares of this
Series, the holders of shares of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon
any liquidation, dissolution 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 the first paragraph of this
Section (v), 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 liquidation, dissolution 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
liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this series then
outstanding shall be entitled to be paid out of assets of
the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled
pursuant to the first paragraph of this Section (v) before
any payment shall be made to the holders of Common Stock or
any other stock of the Corporation ranking junior upon
liquidation to this Series.
For the purposes of this Section (v), the consolidation or
merger of, or binding share exchange by, the Corporation
with any other corporation shall not be deemed to constitute
a liquidation, dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of
stockholders required by law or by the Restated Certificate
of Incorporation, as amended, of the Corporation, each whole
share of this Series shall, on any matter, vote as a class
with any other capital stock comprising part of the
Reference Package and voting on such matter and shall have
the number of votes thereon that a holder of the Reference
Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested
this certificate on the _______ day _____________, of 199__.
Attest:
Insert an amount equal to 1/4 of 1% of the Exercise
Price divided by the number of shares of Preferred Stock
purchasable upon exercise of one Right (i.e., a guaranteed
1% dividend). Where a Right is exercisable for one one
hundredth of a share, this simplifies to one fourth the
Exercise Price.
For a certificate of designation relating to shares to
be issued pursuant to Section 2.3 of the Rights Agreement,
insert the Separation Time. For a certificate of
designation relating to shares to be issued pursuant to
Section 2 3.1(d) of the Rights Agreement, insert the Flip-in
Date.
Insert an amount equal to 100 times the Exercise Price
in effect as of the Separation Time.