EXHIBIT 3.2
CERTIFICATE OF DESIGNATIONS
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
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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 CERTIFICATE OF
DESIGNATION OF "BAYOU STEEL CORPORATION", FILED IN THIS OFFICE ON THE TWENTIETH
DAY OF JUNE, A.D. 1995, AT 3 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
EDWARD J. FREEL
Edward J. Freel, Secretary of State
2161945 8100 AUTHENTICATION: 7546297
950137257 DATE: 06-20-95
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:00 PM 06/20/1995
950 137257 - 2161945
STATEMENT OF DESIGNATIONS, PREFERENCES, LIMITATIONS
AND RELATIVE RIGHTS OF SERIES A PREFERRED
STOCK AND SERIES B PREFERRED STOCK
To the Secretary of State
of the State of Delaware:
Pursuant to the provisions of Section 151 of the Delaware General
Corporation Law of the state of Delaware and Section 5.6 of its Second Restated
Certificate of Incorporation, Bayou Steel Corporation, a Delaware corporation
(the "Company") submits the following statement for the purpose of establishing
a series of preferred stock and fixing and determining the designations,
preferences, limitations and relative rights thereof:
1. The name of the Company is "Bayou Steel Corporation".
2. The resolution establishing two series of preferred stock and fixing
and determining the designations, preferences, limitations and relative rights
thereof attached hereto as EXHIBIT A was duly adopted by all necessary action on
the part of the Company on June 13, 1995, and is incorporated herein by
reference.
BAYOU STEEL CORPORATION
By: RICHARD J. GONZALEZ
Name: Richard J. Gonzalez
Title: VP & CFO
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EXHIBIT A
RESOLUTION
WHEREAS, pursuant to Section 5.6 of the Company's Second Restated
Certificate of Incorporation, the Company's Board of Directors is expressly
authorized to establish series of unissued shares of preferred stock by fixing
and determining the designations, preferences, limitations and relative rights,
including voting rights, of the shares of any series so established;
NOW THEREFORE, BE IT RESOLVED, that (i) a series of preferred stock is
hereby established consisting of 15,000 shares of Series A redeemable preferred
stock, $.01 par value (the "SERIES A PREFERRED STOCK"), and (ii) a series of
preferred stock is hereby established consisting of 18,375 shares of Series B
redeemable preferred stock, $.01 par value (the "SERIES B PREFERRED STOCK"),
each such series of preferred stock having the designations, preferences,
limitations and relative rights herein set forth below:
DESIGNATIONS, PREFERENCES, LIMITATIONS
AND RELATIVE RIGHTS OF SERIES A PREFERRED
STOCK AND SERIES B PREFERRED STOCK
Section 1. DEFINITIONS. For purposes of this Resolution, the following
definitions shall apply:
"BOARD" shall mean the Board of Directors of the Company.
"COMMON STOCK" shall mean the Class A Common Stock, Class B
Common Stock and Class C Common Stock of the Company. Except as otherwise
expressly provided herein, for purposes of calculating any ownership of any
class of Common Stock by a record owner of Common Stock, such ownership shall
include any Common Stock issuable upon the exercise, conversion or exchange of
any Equity Security.
"COMPANY" shall mean Bayou Steel Corporation, a Delaware
corporation.
"DIVIDEND RATE" shall mean (a) so long as no Issuance Event has
occurred and is continuing, a rate of 14.5% of the liquidation preference per
annum per Preferred Share, and (b) upon the occurrence and during the
continuance of an Issuance Event, an annual rate of 17.5% of the liquidation
preference per annum per Preferred Share.
"EQUITY SECURITY" shall mean any stock or other security of the
Company, including without limitation securities containing equity features and
securities containing profit participation features, and any debt or equity
security convertible or exchangeable, with or without consideration, into or for
any stock or similar security, or any security carrying any warrant, option or
right to subscribe to or purchase any of the foregoing.
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"INITIAL ISSUE DATE" shall mean the initial date of issuance of
the Series A Preferred Stock.
"ISSUANCE EVENT" shall mean the failure for any reason
(including, without limitation, insufficiency of legally available funds) of the
Company to pay the full redemption amounts required pursuant to SECTION 5(B)
hereof.
"JUNIOR SECURITIES" shall mean all Equity Securities, whether
issued or to be issued, to which the Series A Preferred Stock and Series B
Preferred Stock rank prior with respect to the payment of dividends or the
distribution of assets upon Liquidation, including without limitation the Common
Stock.
"LIQUIDATION" means any liquidation, dissolution or winding up of
the affairs of the Company; provided, however that a merger or consolidation of
the Company into or with another entity or a sale or conveyance of all or any
part of the assets of the Company (which does not in fact result in the
liquidation of the Company and the distribution of assets to its stockholders)
will not be deemed to constitute a liquidation, dissolution or winding up of the
affairs of the Company for the purposes of this definition.
"PERSON" shall include all natural persons, corporations,
business trusts, associations, companies, partnerships, joint ventures and other
entities and governments and agencies and political subdivisions.
"PREFERRED SHARES" shall mean the shares of Series A Preferred
Stock and Series B Preferred Stock.
"REDEMPTION AMOUNT" shall mean an amount per share equal to the
liquidation preference of the Series A Preferred Stock or the Series B Preferred
Stock, as applicable, plus all accrued but unpaid dividends with respect thereto
through the date of redemption.
"RICE" shall mean Rice Partners II, L.P.
"SERIES A PREFERRED STOCK" shall mean the Series A Redeemable
Preferred Stock of the Company.
"SERIES B PREFERRED STOCK" shall mean the Series B Redeemable
Preferred Stock of the Company.
"SUBSIDIARY" shall mean any corporation, partnership, joint
venture, association or other business entity at least fifty percent (50%) of
the outstanding voting stock, voting interests, capital or profits interest of
which is at the time owned directly or indirectly by the Company or by one or
more of such subsidiary entities, or both.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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Section 2. RANK. The Series A Preferred Stock and the Series B Preferred
Stock shall, with respect to dividends and rights on Liquidation rank PARI PASSU
with each other and prior to all other Equity Securities. The Company shall not
authorize or issue any Equity Securities that rank senior to or PARI PASSU with
the Series A Preferred Stock or the Series B Preferred Stock with respect to
dividends or rights on Liquidation.
Section 3. DIVIDENDS.
(a) RIGHT TO CUMULATIVE DIVIDENDS - SERIES A PREFERRED STOCK. The
holders of the then outstanding Series A Preferred Stock shall be entitled to
receive, when and as declared by the Board, and out of any funds legally
available therefor, quarterly dividends at the applicable Dividend Rate, payable
in the number of shares of Series B Preferred Stock (which do not have to be in
the form of certificated securities) having an aggregate liquidation preference
equal to the amount of such dividend on the last day of March, June, September
and December of each year commencing June, 1995 (PROVIDED, HOWEVER, that
accumulated and unpaid dividends will bear interest at a rate not greater than
14.5% per annum until September 30, 1995), to the holders of record on the date
immediately preceding the payment date. Dividends on the Series A Preferred
Stock will be cumulative from the Initial Issue Date (whether or not declared
and whether or not in any dividend period or dividend periods there are net
profits or net assets of the Company legally available for the payment of those
dividends).
(b) RIGHT TO CUMULATIVE DIVIDENDS - SERIES B PREFERRED STOCK. The
holders of the then outstanding Series B Preferred Stock shall be entitled to
receive, when and as declared by the Board, and out of any funds legally
available therefor, quarterly dividends at the applicable Dividend Rate, in cash
on the last day of March, June, September and December of each year commencing
June, 1995 (PROVIDED, HOWEVER, that accumulated and unpaid dividends will bear
interest at a rate not greater than 14.5% per annum until September 30, 1995) to
the holders of record on the date immediately preceding the payment date.
Dividends on the Series B Preferred Stock will be cumulative from the date of
issuance of each share of Series B Preferred Stock (whether or not declared and
whether or not in any dividend period or dividend periods there are net profits
or net assets of the Company legally available for the payment of those
dividends). Accumulated and unpaid dividends on the Series B Preferred Stock
will bear interest at a rate of 17.5% per annum (PROVIDED, HOWEVER, that
accumulated and unpaid dividends will bear interest at a rate not greater than
14.5% per annum until September 30, 1995).
(c) PRIORITY. For so long as any shares of Series A Preferred Stock or
Series B Preferred Stock are outstanding, (1) no dividend whatsoever shall be
paid or declared, and no distribution shall be made, on any Equity Security
other than the Series A Preferred Stock and the Series B Preferred Stock, and
(2) no Equity Security, other than the Series A Preferred Stock and the Series B
Preferred Stock shall be purchased, redeemed or acquired by the Company or any
Subsidiary and no monies shall be paid into or set aside or made available for a
sinking fund for the purchase, redemption or acquisition thereof by the Company
or any Subsidiary.
Section 4. LIQUIDATION RIGHTS.
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(a) In the event of any Liquidation whether voluntary or involuntary,
the holders of the Series A Preferred Stock and Series B Preferred Stock then
outstanding shall be entitled to be paid out of the assets of the Company
available for distribution to its stockholders, whether such assets are capital,
surplus, or earnings, prior to and in preference of any payment or declaration
and setting apart for payment of any amount shall be made in respect of any
other class of Equity Securities, an amount equal to the sum of (i) $1,000 per
share, PLUS (ii) all accrued and unpaid dividends thereon, whether or not
declared, to and including the date full payment shall be irrevocably tendered
to the holders of the Series A Preferred Stock and Series B Preferred Stock with
respect to such Liquidation. If upon any Liquidation, whether voluntary or
involuntary, the assets to be distributed to the holders of the Series A
Preferred Stock and Series B Preferred Stock shall be insufficient to permit the
payment of such stockholders of their full preferential amounts, then all
available assets of the Company shall be distributed ratably to the holders of
the Series A Preferred Stock and Series B Preferred Stock in proportion to the
full preference amount each such holder is entitled to receive.
(b) Preferences of the Series A Preferred Stock and Series B Preferred
Stock over the Equity Securities shall also apply to any stock hereafter
authorized, and all prohibitions, limitations or restrictions upon the
declaration or payment of any dividends upon, the making of any distribution of
assets upon, or the application of any assets to the purchase, redemption or
other acquisition of Equity Securities shall correspondingly apply to similar
action in respect of such Equity Securities.
Section 5. REDEMPTIONS.
(a) OPTIONAL REDEMPTION. Commencing on the first anniversary of the
Initial Issue Date, the Series A Preferred Stock and Series B Preferred Stock
may be redeemed at the Company's option (subject to the legal availability of
funds) at any time and from time to time, in whole or in part, but in any event
in increments of not less than the lesser of (a) $3,000,000.00 or (b) the amount
necessary to redeem all Series A Preferred Stock and Series B Preferred Stock,
at a redemption price per share equal to the following amounts, determined on
the date of redemption:
REDEMPTION DATE PRICE
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(i) On or after the first anniversary of the 113% of the Redemption
Initial Issue Date and before the second Amount
anniversary of the Initial Issue Date
(ii) On or after the second anniversary of the 108.3% of the Redemption
Initial Issue Date and before the third Amount
anniversary of the Initial Issue Date
(iii) On or after the third anniversary of the 105.5% of the Redemption
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Initial Issue Date and before the fourth Amount
anniversary of the Initial Issue Date
(iv) On or after the fourth anniversary of the 102.8% of the Redemption
Initial Issue Date and before the fifth Amount
anniversary of the Initial Issue Date
(v) On or after the fifth anniversary of the 100% of the Redemption
Initial Issue Date and before the seventh Amount
anniversary of the Initial Issue Date
(b) MANDATORY REDEMPTIONS. Commencing on the Initial Issue Date and
until the seventh anniversary of the Initial Issue Date, the Company shall
redeem at the end of each calendar quarter (subject to the legal availability of
funds and unless prohibited by the Senior Loan Documents or amendments or
refinancings thereof) all shares of the Series B Preferred Stock issued and
outstanding from time to time; PROVIDED, HOWEVER, that if the Company fails to
redeem any such shares in contravention of the Preferred Stock and Warrant
Purchase Agreement, dated as of June 13, 1995, between Rice and the Company (the
"PURCHASE AGREEMENT"), including, without limitation, failure to redeem any such
shares as a result of any amendment or refinancing that is in contravention of
Section 4.20(a) of the Purchase Agreement, the Holders (as defined in the
Purchase Agreement) shall be entitled to all rights and remedies at law or in
equity, including without limitation, any and all rights and remedies set forth
in the Purchase Agreement. In addition, on the seventh anniversary of the
Initial Issue Date, the Company shall redeem (subject to the legal availability
of funds) all issued and outstanding shares of Series A Preferred Stock and
Series B Preferred Stock.
(c) CONTINUING OBLIGATIONS. In the event any redemption required by this
SECTION 5 is not completed for any reason, the obligation of the Company to
redeem all or a portion of the Series A Preferred Stock and/or the Series B
Preferred Stock, as the case may be, will continue until the earliest time as
the circumstance preventing such redemption no longer exists, at which time the
Company will redeem such Series A Preferred Stock and/or the Series B Preferred
Stock, as the case may be. The Company will use its best efforts to make funds
legally available for such redemptions, including, without limitation, revaluing
assets of the Company.
(d) REDEMPTION NOTICE. The Company shall, not less than seven (7) days
nor more than fourteen (14) days prior to the date fixed for any redemption
pursuant to SECTION 5(A) ("REDEMPTION DATE"), mail written notice ("REDEMPTION
NOTICE"), postage prepaid, return receipt requested, to each holder of shares of
record of Series A Preferred Stock and Series B Preferred Stock to be redeemed
at such holder's address last shown on the records of the Company. The
Redemption Notice shall state:
(1) The total number of shares of Series A Preferred Stock and/or
Series B Preferred Stock that the Company intends to redeem;
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(2) The number of shares of Series A Preferred Stock and Series B
Preferred Stock held by the holder that the Company intends to redeem;
(3) The Redemption Date and Redemption Amount; and
(4) The time, place and manner in which the holder is to
surrender to the Company the certificate or certificates representing the shares
of Series A Preferred Stock and/or Series B Preferred Stock to be redeemed.
(e) SURRENDER OF STOCK. On or before the Redemption Date, each holder of
Series A Preferred Stock and/or Series B Preferred Stock to be redeemed shall
surrender the certificate or certificates (if any) representing such shares to
the Company, in the manner and at the place designated in the Redemption Notice,
and thereupon the Redemption Amount for such shares shall be payable to the
order of the person whose name appears on such certificate or certificates (or
that is entitled to such payment if there is no certificate) as the owner
thereof or such person's designee, and each surrendered certificate shall be
canceled and retired. In the event fewer than all of the shares represented by
such certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares.
(f) TERMINATION OF RIGHTS. If the Redemption Notice is duly given, and
if by the Redemption Date the Redemption Amount is either paid or made
irrevocably available for payment, then notwithstanding that the certificates
evidencing any of the shares of Series A Preferred Stock and Series B Preferred
Stock so called for redemption have not been surrendered, all rights with
respect to such shares shall forthwith after the Redemption Date cease, except
only the right of the holders to receive the Redemption Amount without interest
upon surrender of their certificates therefor.
(g) REDEMPTION PRO RATA. In the event that fewer than all of the
outstanding shares of Series A Preferred Stock and/or Series B Preferred Stock
are to be redeemed, such shares to be redeemed shall be redeemed pro rata among
all holders thereof in accordance with the number of shares owned.
(h) NO REISSUANCE OF SERIES A PREFERRED STOCK AND SERIES B PREFERRED
STOCK. No Series A Preferred Stock or Series B Preferred Stock acquired by the
Company by reason of redemption, purchase, or otherwise will be reissued, and
all such shares will be canceled, retired and eliminated from the shares that
the Company will be authorized to issue.
Section 6. LOST, STOLEN, MUTILATED, OR DESTROYED CERTIFICATES;
FRACTIONAL SHARES. If any certificate evidencing Series A Preferred Stock or
Series B Preferred Stock shall become lost, stolen, mutilated, or destroyed, the
Company shall issue a new certificate of like denomination, tenor, and date upon
receipt from the record owner of such Series A Preferred Stock or Series B
Preferred Stock of a representation of such loss, theft, mutilation or
destruction, without any requirement of bond or other extraordinary action. The
Company may issue fractional shares of Series A Preferred Stock and Series B
Preferred Stock.
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Section 7. AMENDMENT. So long as any shares of Series A Preferred Stock
or Series B Preferred Stock are outstanding, the Company shall not, without the
affirmative vote of the holders of at least a majority of the outstanding shares
of Series A Preferred Stock and Series B Preferred Stock at the time
outstanding, amend, alter or repeal any of the rights, preferences or powers of
the holders of the shares of Series A Preferred Stock or Series B Preferred
Stock.
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