EXHIBIT 3.1
SECOND RESTATED CERTIFICATE OF INCORPORATION
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF
"BAYOU STEEL CORPORATION", FILED IN THIS OFFICE ON THE THIRD DAY OF AUGUST,
A.D. 1988, AT 12:50 O'CLOCK P.M.
EDWARD J. FREEL
EDWARD J. FREEL, SECRETARY OF STATE
AUTHENTICATION: 7546242
Date: 06-20-95
[SEAL]
SECOND RESTATED
CERTIFICATE OF INCORPORATION
OF
BAYOU STEEL CORPORATION
FIRST: The original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on May 26, 1988 under the name
"Bayou Steel Corporation (Of La Place)."
SECOND: The Restated Certificate of Incorporation is hereby amended and
restated in its entirety to read as set forth below.
THIRD: This Second Restated Certificate of Incorporation has been duly
adopted by resolutions proposed and declared advisable by the Board of
Directors of the Corporation and duly adopted by the holders of not less than
80% of the voting power of the Corporation by written consent in accordance
with Section 228 of the Delaware General Corporation Law and prompt notice to
the stockholders of the Corporation who have not consented in writing thereto
has been given as provided in said Section 228.
1. Name. The name of the Corporation is:
BAYOU STEEL CORPORATION
2. Registered Office and Registered Agent. The address of the
Corporation's registered office in Delaware is Corporation Trust Center, 1209
Orange Street, Wilmington, New Castle County, Delaware 19801. The Corporation
Trust Company is the Corporation's registered agent at that address.
3. Purpose. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law.
4. Number of Shares. The total number of shares which the Corporation
shall have authority to issue, the number of shares of each class, and the par
value of each share of each class are as follows:
The aggregate number of shares which the Corporation shall have authority
to issue is 38,573,574 divided as follows:
NAME OF CLASS NUMBER OF SHARES PAR VALUE
- ------------------------------------- ---------------- ---------
Series Preferred Stock 10,000,000 $ .01
Class A Common Stock 24,271,127 $ .01
Class B Common Stock 4,302,347 $ .01
Class C Common Stock 100 $ .01
5. Designation of Classes; Relative Rights, etc. A statement of the
designations, powers, preferences, rights, qualifications, limitations and
restrictions in respect of the shares of each class is as follow:
5.1 Definitions.
"Acquisition Agreement" shall mean the Acquisition Agreement dated as of
June 16, 1986, as amended, among Bayou Steel Corporation, Bayou Steel
Acquisition Corporation, Voest-Alpine International Corporation, La Place
Corporation and Voest-Alpine A.G.
"Amoco Tax Lease Agreements" shall mean the four "safe harbor lease"
Agreements dated November 11, 1981 and December 11, 1981 between Amoco Tax
Leasing I Corporation and the Corporation.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Common Stock" shall refer collectively to each of the Class A Common
Stock, the Class B Common Stock and the Class C Common Stock of the
Corporation.
"Consolidated Net Worth" shall mean the excess of (i) all assets of the
Corporation and its Subsidiaries computed and consolidated in accordance with
generally accepted accounting principles, less (ii) the sum of all liabilities
of the Corporation and its Subsidiaries, computed and consolidated in
accordance with generally accepted accounting principles.
"Employment Agreement" shall mean the Employment Agreement dated September
5, 1986 from the Corporation to Howard M. Meyers as in effect on September 5,
1986.
"Entity" shall mean and include any corporation, person or other entity
and any other entity with which it or its "affiliate" or "associate" (as
defined below) has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
stock of the Corporation, or which is its "affiliate" or "associate" as those
terms are defined in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, together with the successors and
assigns of such persons in any merger or consolidation of such persons or the
sale of all or substantially all of such persons' assets.
"Fair market value" of the Class A Common Stock shall mean the average of
the daily closing prices of the Class A Common Stock for 15 consecutive
trading days commencing 20 trading days before the date of such computation.
The closing price is the last reported sale price on the principal national
securities exchange on which the Class A Common Stock is listed or, if the
Class A Common Stock is not listed on any national securities exchange, the
NASDAQ National Market System, or, if the Class A Common Stock is not
designated for trading on the NASDAQ National Market System, the average of
the closing bid and asked prices as reported on NASDAQ or, if not so reported,
as furnished by the National Quotation Bureau Incorporated. In the absence of
such a quotation, the Company shall determine the current market price on a
reasonable and appropriate basis of the average of the daily closing prices
for 15 consecutive trading days commencing 20 trading days before the date of
such computation.
"Permanent Disability" and "Permanently Disabled" shall mean such physical
or mental disability or incapacity of Howard M. Meyers which has substantially
prevented him or will substantially prevent him from performing his duties as
Chief Executive Officer of the Corporation for more than a total of 150 days
during any 365-day period as determined by unanimous or majority vote of a
panel of medical practitioners consisting of one person selected by a majority
of directors elected by holders of Class A Common Stock and one person
selected by a majority of directors elected by holders of Class B Common Stock
and, if the foregoing two persons cannot agree, a third person mutually
acceptable to a majority of both classes of directors (the "Panel"), which
Panel may be convened at any time by a majority of directors elected by either
the holders of Class A Common Stock or Class B Common Stock and, in the event
Howard M. Meyers is deemed Permanently Disabled, then thereafter the Panel may
be convened to review such determination by a majority of directors elected by
either the holders of Class A Common Stock or Class B Common Stock at any time
or by Howard M. Meyers once every 90 calendar days; provided that any fees for
such panel need only be paid by the Corporation once every 12 months.
"Removal for Cause" shall mean the removal of Howard M. Meyers as Chief
Executive Officer of the Corporation for "Cause" as defined in paragraph 9 of
the Employment Agreement and only upon the affirmative vote of the holders of
a majority of shares of Class A Common Stock, voting as a class, regardless of
whether the Employment Agreement is in effect at any given time.
"Senior Note Indenture" shall mean the Indenture dated September 5, 1986
between Bayou Steel Acquisition Corporation and First National Bank of
Commerce.
"Series Preferred Stock" shall mean the Series Preferred Stock of the
Corporation.
"Subsidiary" shall mean a corporation of which a majority of the capital
stock having voting power under ordinary circumstances to elect a majority of
the board of directors is owned by the Corporation, the Corporation and one or
more Subsidiaries, or one or more Subsidiaries.
5.2 Class A Common Stock.
5.2.1 Dividends. The holders of the outstanding shares of Class A Common
Stock shall be entitled to receive dividends as and when declared by the Board
of Directors out of funds legally available therefor in amounts per share
declared for the Class B Common Stock and Class C Common Stock; provided that
dividends shall be declared or funds set aside for payment on the Class A Common
Stock only if dividends are declared or funds set aside for payment concurrently
on the Class B Common Stock and Class C Common Stock; and, provided further that
no dividends or other distribution in any given fiscal year of the Corporation
shall be declared or funds set aside for payment thereof on the Class A Common
Stock until any preferred dividend or other distribution for such fiscal year
shall have been declared and funds set aside with respect to any shares of
Series Preferred Stock outstanding.
5.2.2 Conversion. The holders of the outstanding Class A Common Stock will
not be entitled to convert such shares into any other class of stock of the
Corporation.
5.2.3 Voting Rights.
(a) General. Subject to the provisions of this Certificate of
Incorporation relating to class voting, the holders of the Class A Common
Stock shall be entitled to one vote per share on all matters other than the
election of directors, voting together with the holders of the Class B Common
Stock and Class C Common Stock and not as a separate class.
(b) Right to Elect Directors. The holders of the shares of Class A Common
Stock shall have the right solely to vote for and elect, as a class, that
number of directors which, rounded to the nearest whole number, represents 40%
of the number of directors then comprising the Board of Directors, and to
remove such directors with or without cause at any time and to fill all
vacancies in such directorships; provided, however, as long as the Class A
Common Stock is listed on the American Stock Exchange and in order to maintain
such listing, then from and after the time that the number of outstanding
shares of Class B Common Stock is less than 12.5% of the aggregate number of
outstanding shares of Common Stock, in addition to the foregoing right to
elect 40% of the directors, the Class A Common Stock will vote as one class
with the Class B Common Stock for the election of the remaining 60% of the
Board of Directors, with the Class B Common Stock having ten votes per share
and the Class A Common Stock having one vote per share. Notwithstanding the
foregoing, however, from and after the resignation (provided, however, that
the expiration of the term of the Employment Agreement shall not, in and of
itself, be deemed a resignation), or Removal for Cause or retirement of Howard
M. Meyers as Chief Executive Officer of the Corporation, or death or Permanent
Disability of Howard M. Meyers (except with respect to the cessation of
Permanent Disability pursuant to Article 5.3.3(a)(1) hereof), or such time as
more than 1,362,676 shares (as such number may be adjusted from time to time
under Article 5.5(a)) of Class B Common Stock have been converted into Class A
Common Stock, the holders of the outstanding Class A Common Stock shall be
entitled to one vote per share in the election of directors of the
Corporation, voting together with the holders of the Class B Common Stock and
the Class C Common Stock, each of which shall have one vote per share, and not
as a separate class.
5.3 Class B Common Stock.
5.3.1 Dividends. The holders of the outstanding shares of Class B Common
Stock shall be entitled to receive dividends as and when declared by the Board
of Directors out of funds legally available therefor in amounts per share
equal to the amounts per share declared for the Class A Common Stock and Class
C Common Stock; provided that dividends shall be declared or funds set aside
for payment on the Class B Common Stock only if dividends are declared or
funds set aside for payment concurrently on the Class A Common Stock and Class
C Common Stock; and, provided further that no dividends or other distribution
in any given fiscal year of the Corporation, shall be declared or funds set
aside for payment on the Class B Common Stock until any preferred dividend or
distribution for such fiscal year shall have been declared and funds set aside
with respect to any shares of Series Preferred Stock outstanding.
5.3.2 Conversion.
(a) The holder of any share or shares outstanding of Class B Common Stock
shall have the right, at the holder's option, to convert all or any portion of
such shares into fully paid and nonassessable shares of Class A Common Stock
at any time and from time to time, at the rate of one share of Class A Common
Stock for one share of Class B Common Stock (the "Class B Conversion Rate").
(b) The Class B Common Stock shall be convertible at the principal office
of the Corporation into fully paid and nonassessable shares of Class A Common
Stock at the Class B Conversion Rate.
(c) In order to convert shares of Class B Common Stock into shares of
Class A Common Stock pursuant to the right of conversion set forth in Article
5.3.2(a), the holder thereof shall surrender the certificate or certificates
representing Class B Common Stock, duly endorsed to the Corporation or in
blank, at the principal office of the Corporation and shall give written
notice to the Corporation that such holder elects to convert the same, stating
in such notice the number of shares such holder desires to convert and name or
names in which such holder wishes the certificate or certificates representing
shares of Class A Common Stock to be issued. The Corporation shall, within ten
business days, deliver at said office or other place to such holder of Class B
Common Stock, or to such holder's nominee or nominees, a certificate or
certificates for the number of shares of Class A Common Stock to which such
holder shall be entitled as aforesaid. Shares of Class B Common Stock shall be
deemed to have been converted as of the date of the surrender of such shares
for conversion as provided above, and the person or persons entitled to
receive the shares of Class A Common Stock issuable upon such conversion shall
be treated for all purposes as the record holder or holders of such shares of
Class A Common Stock on such date. Upon conversion of only a portion of the
number of shares covered by a certificate representing shares of Class B
Common Stock surrendered for conversion, the Corporation shall issue and
deliver to, or upon written order of, the holder of the certificate so
surrendered for conversion, at the expense of the Corporation, a new
certificate covering the number of shares of Class B Common Stock representing
the unconverted portion of the certificate so surrendered, which new
certificates shall entitle the holder thereof to the rights of the shares of
Class B Common Stock represented thereby to the same extent as if the
certificate theretofore covering such unconverted shares had not been
surrendered for conversion.
(d) The issuance of certificates for shares of Class A Common Stock upon
the conversion of shares of Class B Common stock shall be made without charge
to the converting stockholder for the original issue or transfer tax in
respect of the issuance of such certificates and any such tax shall be paid by
the Corporation.
(e) In case the Corporation shall effect a reorganization, shall merge
with or consolidate into another corporation, or shall sell, transfer or
otherwise dispose of all or substantially all of its property, assets or
business and, pursuant to the terms of such reorganization, merger,
consolidation or disposition of assets, shares of stock or other securities,
property or assets of the Corporation, successor or transferee or an affiliate
thereof or cash are to be received by or distributed to the holders of Class A
Common Stock, then each holder of Class B Common Stock shall be given a
written notice from the Corporation informing each holder of the terms of such
reorganization, merger, consolidation, or disposition of assets and of the
record date thereof for any distribution pursuant thereto, at least ten days
in advance of such record date, and each holder of Class B Common Stock shall
have the right thereafter to receive, upon conversion of such Class B Common
Stock, the number of shares of stock or other securities, property or assets
of the Corporation, successor or transferee or affiliates thereof or cash
receivable upon or as a result of such reorganization, merger, consolidation
or disposition of assets which a holder of that number of shares of Class A
Common Stock equal to the Class B Conversion Rate immediately prior to such
event would be entitled to receive, multiplied by the number of shares of
Class B Common Stock as may be converted. The provisions of this subparagraph
(e) shall similarly apply to successive reorganizations, mergers,
consolidations or dispositions of assets.
(f) If a state of facts shall occur which, without being specifically
controlled by the provisions of this Article 5.3, would not fairly protect the
conversion rights of the Class B Common Stock in accordance with the essential
intent that Class A Common Stock and Class B Common Stock be equivalent except
for the distinction in voting rights as provided in this Certificate of
Incorporation, then the Board of Directors of the Corporation shall make an
adjustment in the application of such provisions, in accordance with such
essential intent, as to protect such conversion rights.
(g) The Corporation shall, so long as any of the Class B Common Stock
remains outstanding, reserve and keep available out of its authorized and
unissued Class A Common Stock, solely for the purpose of effecting the
conversion of the Class B Common Stock, such number of shares of Class A Common
Stock as shall from time to time be sufficient to effect the conversion of all
shares of the Class B Common Stock, then outstanding. The Corporation shall from
time to time increase its authorized Class A Common Stock and take such other
action as may be necessary to permit the issuance from time to time of the
shares of Class A Common Stock, as fully paid and nonassessable shares, upon the
conversion of the Class B Common Stock, as herein provided.
5.3.3 Voting Rights.
(a) General. (i) Subject to the provisions of this Certificate of
Incorporation relating to class voting, the holders of the Class B Common
Stock shall be entitled to the number of votes per share on all matters other
than the election of directors, voting together with the holders of
outstanding shares of Class A Common Stock and Class C Common Stock, as would
entitle such holders to cast, in the aggregate, 60% of the total number of
votes therefor; provided, that as long as the Class A Common Stock is listed
on the American Stock Exchange and if necessary to maintain the listing of the
Class A Common Stock on the American Stock Exchange or if at any time the
holders of Class B Common Stock shall be entitled to cast more than ten votes
for every one of the Class A Common Stock, then the Class B Common Stock shall
be entitled to no more than ten votes per share. Notwithstanding the
foregoing, from and after the resignation (provided, however, that the
expiration of the term of the Employment Agreement shall not, in and of
itself, be deemed a resignation), or Removal for Cause or retirement of Howard
M. Meyers as Chief Executive Officer of the Corporation or the death or
Permanent Disability of Howard M. Meyers, or such time as more than 1,362,676
shares (as such number may be adjusted from time to time under Article 5.5(a))
of Class B Common Stock have been converted into Class A Common Stock, the
holders of the outstanding Class B Common Stock shall be entitled to one vote
per share on all matters other than the election of directors voting together
with the holders of the Class A Common Stock and Class C Common Stock and not
as a separate class; provided, that if at any time within five years after
Howard M. Meyers is deemed Permanently Disabled, the Panel determines that
Howard M. Meyers is not Permanently Disabled, the holders of Class B Common
Stock shall then be entitled to the votes per share described in the first
sentence of this Article 5.3.3(a)(i).
(ii) The holders of the shares of Class B Common Stock shall be entitled
to vote on, as a class, and the approval of the holders of a majority of such
shares of Class B Common Stock shall be required for, (A) any merger,
consolidation or reorganization of the Corporation with or into another
corporation in which the Corporation is not the surviving entity in such
merger, consolidation or reorganization (other than a merger or reorganization
of the Corporation for the purpose of reincorporation in another state which
does not adversely affect the rights of holders of Class B Common Stock), (B)
any dissolution or liquidation by dividend or otherwise of the Corporation,
(C) any sale, assignment, or other disposition of (other than a sale,
assignment or disposition of (r) property subject to an Amoco Tax Lease
Agreement or (s) any Amoco Tax Lease Agreement, occurring by reason of action
taken pursuant to a mortgage or similar security instrument placed on (i) the
property subject to the Amoco Tax Lease Agreements or (ii) any Amoco Tax Lease
Agreement) the Corporation's interest in (1) any property that is subject to
an Amoco Tax Lease Agreement or (2) any Amoco Tax Lease Agreement, unless (a)
such sale, assignment, or other disposition fully complies with the terms of
the applicable Amoco Tax Lease Agreement, the provisions of Section 168(f)(8)
of the Code, as in effect on the dates on which the Amoco Tax Lease Agreements
were entered into, and the U.S. Income Tax Regulations promulgated thereunder
from time to time (whether in temporary, proposed, or final form (the
"Regulations")), and (b) any purchaser, assignee, or transferee of any such
interest agrees in writing prior to such sale, assignment or other disposition
(x) to take such property subject to the applicable Amoco Tax Lease Agreement
within the meaning of Section 5c.168(f)(8)-2 of the Regulations, (y) to take
any action, including the filing of any statement with its Federal income tax
return or the furnishing of any written consent or statement to any person,
necessary in order to preserve the character of the applicable Amoco Tax Lease
Agreement as a lease for United States Federal income tax purposes in
accordance with Section 168(f)(8) of the Code as in effect on the dates on
which the Amoco Tax Lease Agreements were entered into (in each case under
this clause as provided in Section 168(f)(8) of the Code, as in effect on the
dates on which the Amoco Tax Lease Agreements were entered into, or the
Regulations promulgated thereunder from time to time) and (z) to comply fully
with each undertaking agreed to by Bayou Steel Acquisition Corporation in
Sections 7.9(f), 7.9(g), 7.9(h), 7.9(j), 7.9(k), 7.9(l), 7.9(m), 7.9(n), 7.5(b),
7.5(c) and 7.6 of the Acquisition Agreement as if such purchaser, assignee or
transferee were therein named. The voting requirements of this Article
5.3.3(a)(ii) shall apply whether or not the Corporation is insolvent.
Additionally, no voting rights shall be conferred upon the holders of any bonds,
debentures or other obligations issued by the Corporation or any other person
which would adversely affect the rights of the holders of the Class B Common
Stock in any respect. The provisions of this Article 5.3.3(a)(ii) shall not
require a shareholder vote in connection with the granting of any mortgage or
other security interest pursuant to or in connection with the Senior Note
Indenture.
(b) Right to Elect Directors. The holders of the shares of Class B Common
Stock shall have the right solely to vote for and elect, as a class, that
number of directors which, rounded to the nearest whole number, represents 60%
of the number of directors then comprising the Board of Directors, and to
remove such directors with or without cause at any time and to fill all
vacancies in such directorships; provided, however, as long as the Class A
Common Stock is listed on the American Stock Exchange and in order to maintain
such listing, then from and after the time that the number of outstanding
shares of Class B Common Stock is less than 12.5% of the aggregate number of
outstanding shares of Common Stock, the Class B Common Stock will vote as one
class with the Class A Common Stock for the election of such 60% of the Board
of Directors, with the Class B Common Stock having ten votes per share and the
Class A Common Stock having one vote per share. Notwithstanding the foregoing,
however, from and after the resignation (provided, however, that the
expiration of the term of the Employment Agreement shall not, in and of
itself, be deemed a resignation), or Removal for Cause or retirement of Howard
M. Meyers as Chief Executive Officer of the Corporation, or death or Permanent
Disability of Howard M. Meyers (except with respect to the cessation of
Permanent Disability pursuant to Article 5.3.3(a)(i) above) or such time as
more than 1,362,676 shares (as such number may be adjusted from time to time
under Article 5.5(a)), of Class B Common Stock have been converted into Class
A Common Stock, the holders of the outstanding Class B Common Stock shall be
entitled to one vote per share, voting together with the holders of the Class
A Common Stock and the Class C Common Stock and not as a separate class, in
the election of directors of the Corporation. The foregoing rights of the
holders of Class B Common Stock to elect directors, as a class, are modified
by and subject to the provisions of Article 5.4.3(c).
5.4 Class C Common Stock.
5.4.1 Dividends. The holders of the outstanding shares of Class C Common
Stock shall be entitled to receive dividends as and when declared by the Board
of Directors out of funds legally available therefor in amounts per share equal
to the amounts per share declared for the Class A Common Stock and Class B
Common Stock; provided that dividends shall be declared or funds set aside for
the payment on the Class C Common Stock only if dividends are declared and funds
set aside concurrently on the Class A Common Stock and Class B Common Stock.
5.4.2 Conversion. The holders of the outstanding shares of Class C Common
Stock will not be entitled to convert such shares into any other class of stock
of the Corporation. No holder of shares of any other class of stock of the
Corporation or any obligations of the Corporation or any other person shall have
or may be given the right to convert such shares of stock or obligations into
shares of Class C Common Stock.
5.4.3 Voting Rights.
(a) Subject to the provisions of this Certificate of Incorporation relating
to class voting and Article 5.4.3(c) hereof, the holders of the Class C Common
Stock shall be entitled to one vote per share voting together with the holders
of the Class A Common Stock and the Class B Common Stock and not as a separate
class, unless otherwise required by law.
(b) The holders of the shares of Class C Common Stock shall be entitled to
vote on, as a class, and the approval of 100% of the holders of such shares of
Class C Common Stock shall be required for (i) any merger, consolidation or
reorganization of the Corporation with or into another corporation in which the
Corporation is not the surviving entity in such merger, consolidation or
reorganization (other than a merger or reorganization of the Corporation for the
purpose of reincorporation in another state which does not adversely affect the
rights of the holders of the Class C Common Stock), (ii) any dissolution or
liquidation by dividend or otherwise of the Corporation, (iii) any sale,
assignment, or other disposition of (other than a sale, assignment or
disposition of (a) property subject to an Amoco Tax Lease Agreement or (b) any
Amoco Tax Lease Agreement, occurring by reason of action taken pursuant to a
mortgage or similar security instrument placed on (r) the property subject to
the Amoco Tax Lease Agreements or (s) any Amoco Tax Lease Agreement, the
Corporation's interest in (A) any property that is subject to an Amoco Tax Lease
Agreement or (B) any Amoco Tax Lease Agreement, unless (1) such sale,
assignment, or other disposition fully complies with the terms of the applicable
Amoco Tax Lease Agreement, the provisions of Section 168(f)(8) of the Code, as
in effect on the dates on which the Amoco Tax Lease Agreements were entered
into, and the Regulations promulgated thereunder from time to time, and (2) any
purchaser, assignee, or transferee of any such interest agrees in writing prior
to such sale, assignment or other disposition (x) to take such property subject
to the applicable Amoco Tax Lease Agreement within the meaning of Section
5c.168(f)(8)-2 of the Regulations, (y) to take any action, including the filing
of any statement with its Federal income tax return or the furnishing of any
written consent or statement to any person, necessary in order to preserve the
character of the applicable Amoco Tax Lease Agreement as a lease for United
States Federal income tax purposes in accordance with Section 168(f)(8) of the
Code, as in effect on the dates on which the Amoco Tax Lease Agreements were
entered into (in each case under this clause as provided in Section 168(f)(8) of
the Code, as in effect on the dates on which the Amoco Tax Lease Agreements were
entered into, or the Regulations promulgated thereunder from time to time) and
(z) to comply fully with each undertaking agreed to by Bayou Steel Acquisition
Corporation in Sections 7.9(f), 7.9(g), 7.9(h), 7.9(j), 7.9(k), 7.9(l), 7.9(m),
7.9(n), 7.5(b), 7.5(c) and 7.6 of the Acquisition Agreement as if such
purchaser, assignee or transferee were therein named, and (iv) any amendment to
this Certificate of Incorporation that would increase the number of authorized
shares of Class C Common Stock, modify Article 5.4 in any way or adversely
affect the rights of the holders of Class C Common Stock in any respect. The
voting requirements of this Article 5.4.3(b) shall apply whether or not the
Corporation is insolvent. Additionally, no voting rights shall be conferred upon
the holders of any bonds, debentures or other obligations issued by the
Corporation or any other person which would adversely affect the rights of the
holders of the Class C Common Stock in any respect. The provisions of this
Article 5.4.3(b) shall not require a shareholder vote in connection with the
granting of any mortgage or other security interest pursuant to or in connection
with the Senior Note Indenture.
(c) If any corporation or affiliated group, as defined in Section
338(h)(5) of the Code, or any comparable provision of any superseding Federal
tax statute, and the Regulations promulgated thereunder from time to time (a
"Third Party Purchaser") acquires directly or indirectly through any other
entity, person, agent, or nominee, by any means (including, but not limited
to, a redemption of shares of the stock of the Corporation held by any other
person) any share or shares of the stock of the Corporation which, when
aggregated with all other shares of the stock of the Corporation held by such
Third Party Purchaser, would, but for this Article 5.4.3(c), allow such Third
Party Purchaser to possess, directly or indirectly, in the aggregate at least
that percentage of the Total Combined Voting Power (as defined below) which is
equal to the percentage determined by subtracting two percentage points from
the Minimum Percentage (as defined below), then, and for so long as possession
of such percentage is maintained, the outstanding shares of Class C Common
Stock shall, in the aggregate, automatically possess that percentage of that
Total Combined Voting Power which is equal to the sum of one percent plus the
difference between 100 percent and the Minimum Percentage, such increase in
voting power to become effective simultaneously with the acquisition by such
Third Party Purchaser of any share or shares of the stock of the Corporation
which, when aggregated with all other shares of the stock of the Corporation
held by such Third Party Purchaser, would allow such Third Party Purchaser to
possess, directly or indirectly, in the aggregate at least two percentage
points less than the Minimum Percentage of the Total Combined Voting Power.
Possession of such percentage of Total Combined Voting Power by the holders of
the Class C Common Stock shall mean with respect to the election of directors
that (i) if the holders of the shares of Class A Common Stock, Class B Common
Stock and Class C Common Stock have, at the time of any election of directors,
the right to elect the entire Board of Directors voting together and not as
separate classes, the holders of the Class C Common Stock shall be entitled to
cast the percentage of votes in such election as is equal to the sum of one
percent plus the difference between 100 percent and the Minimum Percentage and
(ii) if Class A Common Stock, Class B Common Stock or Preferred Stock have, at
the time of any any election of directors, the right to elect, by class vote,
any directors of the Corporation, the holders of the Class C Common Stock shall
have the sole right to vote for and elect, as a class, one percent plus the
difference between 100 percent and the Minimum Percentage of the number of
directors of the Corporation (rounded up to the nearest whole number) and to
remove such directors with or without cause at any time and to fill all
vacancies in such directorship and, if required to permit such election, the
number of directors which the holders of the Class B Common Stock are entitled
to elect as a class pursuant to Article 5.3.3(b) shall be reduced to the extent
necessary. Such right of the Class C Common Stock to elect directors as a class
shall be eliminated upon the effectiveness of any registration statement
relating to the Class A Common Stock under the Federal securities laws.
Additionally, such right of the Class C Common Stock to elect directors, as a
class, shall be eliminated and such increased voting power shall be reduced to
the number of votes to which such shares of Class C Common Stock otherwise would
be entitled but for this Article 5.4.3(c) upon the occurrence of any of the
following events, but only for so long as the circumstances or agreements
contemplated by such event exist or are fully complied with by such Third Party
Purchaser:
(i) such Third Party Purchaser enters into a written agreement with the
holder of the then outstanding shares of Class C Common Stock (x) not to make
an election pursuant to Section 338 of the Code, or any comparable provision
of any superseding Federal tax statute, and the Regulations promulgated
thereunder (the "Section 338 Election") with respect to the Corporation, (y)
not to, and to cause the Corporation not to, take or fail to take any action
if the taking of such action or the failure to take such action would result
in a deemed Section 338 Election pursuant to Section 338(e) or (f) of the
Code, or any comparable provision of any superseding Federal tax statute, and
the Regulations promulgated thereunder, and (z) to file with the Internal
Revenue Service, at the request of the holders of the then outstanding shares
of Class C Common Stock, any and all documents evidencing its decision (A) not
to make a Section 338 Election, including, but not limited to a "protective
carryover election," as defined in Section 1.338-4T(f)(6) of the Regulations,
and (B) not to, and to cause the Corporation not to, take, or fail to take,
any action if the taking of such action or failure to take such action would
result in a deemed Section 338 Election, or
(ii) such Third Party Purchaser furnishes to the holders of the then
outstanding shares of Class C Common Stock an irrevocable letter of credit,
for a term ending December 31, 2003, in favor of such holders and reasonably
satisfactory in form and substance to such holders, issued by a U.S. financial
institution that is acceptable to such holders in an amount at least
sufficient, in the reasonable opinion of such holders, to reimburse them on a
net after-tax basis for any payments any or all of them would be required to
make to any party pursuant to any or both of the letters dated November 11,
1981 and December 7, 1981, respectively, to Amoco Tax Leasing I Corporation
from Voest-Alpine A.G., Voest-Alpine International Corporation, and certain
other corporations, or any successor or substitute letter thereto, as a result
of a Section 338 Election being made, or deemed made, by such Third Party
Purchaser with respect to the Corporation, or
(iii) at any time after the last date on which a Section 338 Election may
be made, or deemed made, with respect to the Corporation as a result of a
"qualified stock purchase," as defined in Section 338(d)(3) of the Code, or
any comparable provision of any superseding Federal tax statute, of the stock
of the Corporation, which purchase occurs during the term of any of the Amoco
Tax Lease Agreements.
The "Minimum Percentage" shall be the percentage of the Total Combined
Voting Power of all classes of stock of a corporation entitled to vote that is
required under Section 338(d)(3)(a) of the Code for purposes of a "qualified
stock purchase" as defined in said Section.
The "Total Combined Voting Power" shall be the total combined voting power
of all classes of stock of the Corporation entitled to vote as determined in
the manner provided in Section 338 of the Code, or any comparable provision of
any superseding Federal tax statute.
5.5 Relative Rights of Class A Common Stock and Class B Common Stock. (a)
The Corporation shall not (i) declare or pay to the holders of Class A Common
Stock or Class B Common Stock a dividend or other distribution payable in
stock or securities of the Corporation, (ii) subdivide the outstanding shares
of Class A Common Stock or Class B Common Stock into a greater number of
shares of Class A Common Stock or Class B Common Stock, (iii) combine the
outstanding shares of Class A Common Stock or Class B Common Stock into a
lesser number of shares, or (iv) issue by reclassification of its shares of
Class A Common Stock or Class B Common Stock any shares of the Corporation,
unless, in each case, the Corporation shall effect concurrently an equivalent
dividend, distribution, subdivisions, combination or reclassification with
respect to Class A Common Stock and Class B Common Stock.
(b) Except as permitted by Article 5.5(a), the Corporation shall not issue
additional shares of Class A Common Stock for any reason unless it offers to
the holders of Class B Common Stock the right to purchase all or any part of
such additional shares of Class B Common Stock, in such amount as to maintain
after the issuance the ratio that the number of shares of Class B Common Stock
bears to the aggregate number of shares of Common Stock outstanding
immediately prior to the issuance of the shares of Class A Common Stock, for
such consideration per share equal to the fair market value of the
consideration per share being paid for the Class A Common Stock being issued.
If such consideration is other than cash, the Corporation shall determine the
fair market value thereof, which determination shall be final and conclusive.
(c) No additional shares of Class B Common Stock shall be issued except in
order to satisfy the adjustment requirements of this Article 5.5.
5.6 Series Preferred Stock. The Board of Directors of the Corporation,
with the approval of all of the directors elected by the holders of each of
the Class A Common Stock and the Class B Common Stock (or only a majority of
the entire Board of Directors if directors are no longer elected by class), is
authorized, subject to the limitations prescribed by law or this Certificate
of Incorporation and the provisions of this Article 5.6, to provide for the
issuance from time to time in one or more series of any number of shares of
Series Preferred Stock, and, by filing a certificate pursuant to the Delaware
General Corporation Law, to establish the number of shares to be included in
each such series, and to fix the designation, relative rights, preferences,
qualifications and limitations of the shares of each such series. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
(i) The number of shares constituting that series and the distinctive
designation of that series;
(ii) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and whether they
shall be payable in preference to, or in another relation to, the dividends
payable on any other class or classes or series of stock;
(iii) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(iv) Whether that series shall have conversion or exchange privileges,
and, if so, the terms and conditions of such conversion or exchange, including
provision for adjustment of the conversion or exchange rate in such events as
the Board of Directors shall determine;
(v) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the manner of
selecting shares for redemption if less than all shares are to be redeemed,
the date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(vi) Whether that series shall be entitled to the benefit of a sinking
fund to be applied to the purchase or redemption of shares of that series,
and, if so, the terms and amounts of such sinking fund;
(vii) The right of the shares of that series to the benefit of conditions
and restrictions upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issue of any additional stock (including additional shares
of such series or of any other series) and upon the payment of dividends or the
making of other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of any outstanding stock of the
Corporation;
(viii) The right of the shares of that series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and whether such rights shall be in preference to, or in another
relation to, the comparable rights of any other class or classes or series of
stock; and
(ix) Any other relative, participating, optional or other special rights,
qualifications, limitations or restrictions of that series.
Shares of any series of Series Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or which, if
convertible or exchangeable, have been converted into or exchanged for shares
of stock of any other class or classes shall have the status of authorized and
unissued shares of Series Preferred Stock of the same series and may be
reissued as a part of the series of which they were originally a part or may
be reclassified and reissued as part of a new series of Series Preferred Stock
to be created by resolution(s) of the Board of Directors or as part of any
other series of Series Preferred Stock, all subject to the conditions and the
restrictions on issuance set forth in the resolution(s) adopted by the Board
of Directors providing for the issue of any series of Series Preferred Stock.
5.7 Special Meetings of Stockholders to Elect Directors. As promptly as
practicable after the time when (i) the holders of the Class B Common Stock
become entitled to only one vote per share, voting together as one class with
the holders of the Class A and Class C Common Stock, or (ii) a panel
determination of Howard M. Meyer's Permanent Disability is made pursuant to
Article 5.3.3(a)(i), a special meeting of the stockholders shall be called for
the purpose of electing new directors. At that time, or as soon as permitted
by applicable law, the terms of the office of the directors then in office
shall terminate and new directors shall be elected in accordance with the
provisions of this Certificate of Incorporation.
5.8 Amendment to Certificate of Incorporation. Any amendment to this
Certificate of Incorporation which would adversely affect the rights of any
class of stock of the Corporation shall require the affirmative vote of
holders of a majority of shares of stock of such class, voting as a single
class.
5.9 Restrictions on Transfers of Class A Common Stock and Class B Common
Stock.
(a) Any attempted sale, transfer, assignment, conveyance, pledge or other
disposition of any share of the Corporation's Class A or Class B Common Stock
or any option to purchase such Class A or Class B Common Stock (or similar
right described in Sections 382(k)(6)(B) or 382 (l) of the Code and the
regulations thereunder) to any person (a "Person," which term shall have the
meaning set forth in Section 2(2) of the Securities Act of 1933, as amended)
who directly or indirectly, beneficially owns (as determined pursuant to Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended), or, as
a result of such attempted disposition, would beneficially own, or whose
shares would be attributed pursuant to the applicable attribution provisions
of the Code to any Person who would so directly or indirectly beneficially
own, after giving effect to the applicable attribution provisions of the Code,
5% or more of the fair market value of the Corporation's Class A Common Stock
outstanding shall be null and void AB INITIO insofar as it purports to
transfer ownership of any shares that would cause the transferee to attain
such 5% ownership level or if such transferee owned Class A or Class B Common
Stock with a fair market value equal to 5% or more of the fair market value of
the Corporation's Class A Common Stock prior to the attempted disposition, the
entire attempted disposition shall be null and void AB INITIO.
(b) Nothing contained in Article 5.9(a) shall prevent an otherwise valid
transfer if the transferee obtains the written approval of all of the directors
elected by the holders of each of the Class A Common Stock and Class B Common
Stock (or only a majority of the entire Board of Directors if directors are no
longer elected by class) and, except to the extent the Board of Directors of the
Corporation in its discretion waives the requirement, provides the Corporation
with an opinion of reputable tax counsel satisfactory to the Corporation and its
tax counsel that the transfer shall not result in the application of any tax law
limitation on the use of the Corporation's losses of other tax attributes.
Notwithstanding the foregoing, Article 5.9(a) shall not apply to (i) the
issuance of shares of Common Stock in the merger of Bayou Steel Corporation (of
La Place), a Louisiana corporation, into the Corporation, provided that any
increase in the ownership of Common Stock by Persons who receive such shares in
the merger is subject thereto; (ii) any transfer of shares of Class B Common
Stock in accordance with clause (i) Article 6(a) hereof; (iii) any issuance of
shares of Common Stock to the shareholders of RSR Steel Corporation in a merger
with the Corporation or in connection with the sale of all or substantially all
of the assets of RSR Steel Corporation to the Corporation, provided that all of
the Class B Common Stock of the Corporation (and no other stock of the
Corporation) is owned by RSR Steel Corporation, that the issuance of such shares
shall not result in the application of any tax law limitation on the use of the
Corporation's losses or other tax attributes, that any increase in the ownership
of Common Stock by persons who receive such shares pursuant to the merger over
the amount of stock held by RSR Steel Corporation at the time of the merger is
subject thereto and that any other increase in the ownership of Common Stock by
persons who receive such shares is subject thereto; and (iv) any conversion of
Class B Common Stock into shares of Class A Common Stock pursuant to the
provisions of Article 5.3.2 hereof to the extent that the shares of Class A
Common Stock received upon conversion are owned by the same Person who effected
the conversion.
(c) No employee or agent, including any independent transfer agent or
registrar, of the Corporation shall be permitted to record any attempted or
purported transfer made in violation of this Article 5.9 and no intended
transferee of shares of Common Stock of the Corporation attempted to be
transferred in violation of this Article 5.9 shall be recognized as a holder
of such shares for any purpose whatever, including, but not limited to, the
right to vote such shares of capital stock of the Corporation or to receive
dividends or other distributions in respect thereof, if any. Any such intended
transferee shall be deemed to have appointed the Corporation as
attorney-in-fact, with full power of substitution and full power and
authority, in the name and on behalf of the intended transferee, to sell,
assign and transfer the shares of Common Stock of the Corporation attempted to
be transferred in violation of this Article 5.9, and to do all lawful acts and
execute all documents deemed necessary or advisable to effect such sale,
assignment and transfer, in an arm's length transaction, to another Person;
provided that the sale, assignment and transfer to such other Person does not
violate the provisions of this Article 5.9. The Corporation shall apply the
proceeds of any such sale first, to pay the expenses of the sale; second, to
pay the intended transferee on whose behalf the shares were sold, an amount
equal to (i) the sum of the intended transferee's cost of such shares
(inclusive of brokerage fees and expenses), plus interest on such cost at the
then minimum rate of interest which would prevent interest on a non-interest
bearing obligation from being imputed by the Internal Revenue Service, less
the amount of any dividends or other distributions inadvertently paid to said
intended transferee in respect of such shares, or (ii) the balance of such
proceeds, whichever is less; and third, the balance of such proceeds if any,
shall be paid to the Corporation. The Corporation shall take all appropriate
legal action to enforce the provisions of this Article 5.9 in every case where
there has been an attempted or purported transfer made in violation hereof. In
taking any action hereunder, the Corporation, and its directors, officers and
agents, will be fully protected in relying upon any notice, paper or other
document reasonably believed by the Corporation or any such person to be
genuine and sufficient, and, to the extent permitted by law, in no event shall
the Corporation, or any of its directors, officers or agents be liable for any
act performed or omitted to be performed hereunder in the absence of gross
negligence or willful misconduct. The Corporation and its directors, officers
and agents may consult with counsel in connection with its duties hereunder
and, to the extent permitted by law, each shall be fully protected by any act
taken, suffered or permitted in good faith in accordance with the advice of
such counsel.
(d) The by-laws of the Corporation shall make appropriate provisions to
effectuate the requirements of this Article 5.9.
(e) All certificates evidencing ownership of shares of Common Stock of the
Corporation shall bear a conspicuous legend as follows:
"THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS SET
FORTH IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION, A COPY OF WHICH
IS AVAILABLE FOR INSPECTION AT THE CORPORATION'S PRINCIPAL PLACE OF BUSINESS
LOCATED AT RIVER ROAD (P.O. BOX 5000), LA PLACE, LOUISIANA 70068."
(f) The restrictions on transfers set forth in this Article 5.9 shall
remain in effect until December 31, 2003.
(g) The restrictions on transfer set forth in this Article 5.9 do not
apply to the Class C Common Stock and do not and are not intended to affect
the Class C Common Stock in any way.
6. Restrictions On Transfer of Class B Common Stock. (a) Except for
transfers (i) to or for the benefit of any direct or indirect beneficial
holder of the Class B Common Stock or the immediate family (such term having
the meaning of closer than second cousin) of any such stockholder so long as
such direct or indirect beneficial holder or its immediate family retains all
the attributes of such direct or indirect beneficial ownership of such Class B
Common Stock or (ii) approved by the holders of 75% of the then outstanding
Class A Common Stock, shares of Class B Common Stock are not transferable
except as provided in Article 6(b).
(b) Shares of Class B Common Stock are transferrable only upon conversion
of such shares into Class A Common Stock and provided no acceleration of any
indebtedness of the Corporation shall occur solely as a result of such
conversion and transfer. Notwithstanding the foregoing, in any sale
transaction or series of related transactions which result in more than
1,362,676 (as such number may be adjusted from time to time under Article
5.5(a)) of Class B Common Stock being converted into Class A Common Stock
where the highest consideration per share of Class A Common Stock received in
such transaction(s) exceeds the fair market value of a share of Class A Common
Stock, the entity which acquires the shares of Class A common Stock shall give
a written undertaking to the Corporation that if, within 24 months after such
sale, such entity makes a public tender offer or other proposal to acquire all
or any portion of the remaining Class A Common Stock, the consideration to be
paid by such entity shall not be less than the highest consideration per share
paid in such Class A Common Stock transaction. In computing the amount of
consideration to be offered to holders of Class A Common Stock pursuant to
this Article 6(b), all amounts to be paid to, or value to be received by, the
transferor in connection with such transfer shall be included.
7. Mergers and Acquisitions; Sales and Purchases of Property; Issuance of
Shares; and Amendments to Certificate of Incorporation. (a) Subject to the
provisions of Articles 5.3.3(a)(ii) and 5.4.3(b), without the consent of
holders of Common Stock having 80% or more of the number of votes that may be
cast for all matters other than the election of directors, voting together as
one class, the Corporation shall not (A) merge with or into another
corporation, other than a direct or indirect Subsidiary of the Corporation,
(B) acquire assets of any other person the amount of which exceeds 20% of the
Corporation's Consolidated Net Worth prior to the acquisition, except in the
case of capital expenditures or inventory in the ordinary course of business,
unless all of the directors elected by holders of each of the Class A Common
Stock and Class B Common Stock (or only a majority of the entire Board of
Directors if directors are no longer elected by class), shall have approved of
the matter, (C) dispose of assets of the Corporation the amount of which
exceeds 20% of the Corporation's Consolidated Net Worth, other than in the
ordinary course of business, (D) purchase any equity interest (or any interest
convertible into an equity interest) in any corporation or partnership, the
amount of which exceeds 20% of the Corporation's Consolidated Net Worth prior
to the acquisition, unless all of the directors elected by holders of each of
the Class A Common Stock and Class B Common Stock (or only a majority of the
entire Board of Directors if directors are no longer elected by class) shall
have approved of the matter, or (E) amend the Certificate of Incorporation.
The Corporation shall not issue or sell or permit the issuance or sale of, or
grant any right to subscribe for or to purchase any options for the purchase
of any shares of stock or other equity interest (or any interest convertible
into an equity interest) in the Corporation, unless all of the directors
elected by holders of each of the Class A Common Stock and Class B Common
Stock (or only a majority of the entire Board of Directors if directors are no
longer elected by class) have approved.
(b) Subject to the provisions of Articles 5.3.3(a)(ii) and 5.4.3(b), but
notwithstanding any other provision of this Certificate of Incorporation, no
stockholder consent shall be required for (i) the Corporation to grant any
mortgages, pledges, assignments for security purposes, or other security
interests affecting all or any part of the Corporation's property, or (ii) the
transfer of title to the Corporation's property resulting from the enforcement
of such security rights.
8. Special Meeting of Stockholders. In addition to the special meetings of
stockholders which may be held pursuant to Article 5.7 hereof, special
meetings of stockholders of the Corporation may be called by holders of Common
Stock having 10% or more of the number of votes that may be cast for all
matters other than the election of directors.
9. Number of Directors. The Board of Directors shall consist of seven
directors; provided, however, that until such time as more than 1,362,676
shares (as such number may be adjusted from time to time under Article 5.5(a))
of Class B Common Stock have been converted into Class A Common Stock, the
number of directors may be increased to ten by the vote of a majority of the
directors elected by the holders of each of the Class A Common Stock and Class
B Common Stock.
10. Acquisition Agreement, Employment Agreement and Other Agreements. The
Acquisition Agreement, the Employment Agreement, the Amoco Tax Lease
Agreements and the letters dated November 11, 1981 and December 7, 1981,
respectively, to Amoco Tax Leasing I Corporation from Voest-Alpine A.G.,
Voest-Alpine International Corporation, and certain other corporations, shall
be kept on file at the offices of the Corporation and made available to the
stockholders for their inspection during normal business hours.
11. Election of Directors. The election of the Board of Directors need not
be by written ballot.
12. Removal of Chief Executive Officer. During the term of the Employment
Agreement, the Chief Executive Officer may be removed only for "Cause" as
defined in paragraph 9 of the Employment Agreement and upon the mechanism
provided in the Employment Agreement. After the term of the Employment
Agreement, the Chief Executive Officer may be removed (a) without cause by the
affirmative vote of a majority of the directors of the Corporation or (b) for
"Cause" as defined in paragraph 9 of the Employment Agreement and upon the
mechanism provided in the Employment Agreement.
13. Indemnification.
(a) The Corporation shall indemnify to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time to
time, each person that such Section grants the Corporation the power to
indemnify.
(b) No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
director for any act or omission occurring subsequent to the date when this
provision becomes effective, except that such director may be liable (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit.
14. By-laws. The Board of Directors shall have the power to make, alter or
repeal the By-laws of the Corporation.
Dated: August 3, 1988
OTTO S. SPRAGUE, Vice President
Attest: HOWARD B. MYERS,
Secretary