EXHIBIT 3.1
PREMIERE TECHNOLOGIES REINCORPORATION, INC.
ARTICLES OF INCORPORATION
ARTICLE I
NAME
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The name of the Corporation is Premiere Technologies Reincorporation, Inc.
ARTICLE II
PURPOSE
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The Corporation is being formed in connection with the reincorporation of
Premiere Technologies, Inc. from a Florida corporation to a Georgia corporation,
pursuant to an Agreement and Plan of Merger between Premiere Technologies, Inc.
and the Corporation. The Corporation is organized for the purpose of transacting
any and all lawful business authorized and not prohibited by the Georgia
Business Corporation Code (the "Code"), as the same may from time to time be
amended, and to have and to exercise all power necessary, convenient or
incidental to carrying out such business.
ARTICLE III
CAPITALIZATION
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The Corporation shall have authority, exercisable by its Board of
Directors, to issue up to 150,000,000 shares of common stock, par value $.01 per
share ("Common Stock"), and 5,000,000 shares of preferred stock, par value $.01
per share ("Preferred Stock"), any part or all of which shares of Preferred
Stock may be established and designated from time to time by the Board of
Directors, in such series and with such preferences, limitations and relative
rights as may be determined by the Board of Directors.
The first series, designated as Series A Preferred Stock (the "Series A
Preferred"), will consist of 128,983 shares and will have the preferences,
voting powers, relative, participating, optional or other special rights and
privileges, and the qualifications, limitations and restrictions as shown on
EXHIBIT "A" attached hereto and incorporated herein by reference.
ARTICLE IV
INITIAL REGISTERED OFFICE AND AGENT
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The street address and county of the initial registered office of the
Corporation shall be at 3399 Peachtree Road, N.E., The Lenox Building, Suite
400, Atlanta, Fulton County, Georgia 30326. The initial registered agent of the
Corporation at such address shall be Patrick G. Jones.
ARTICLE V
INCORPORATOR
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The name and address of the incorporator are as follows:
Jeffrey A. Allred, Esq.
400 Colony Square
1201 Peachtree Street, N.E., Suite 2200
Atlanta, Georgia 30361
ARTICLE VI
MAILING ADDRESS OF PRINCIPAL OFFICE
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The mailing address of the initial principal office of the Corporation is
as follows:
3399 Peachtree Road, N.E.
The Lenox Building
Suite 400
Atlanta, Georgia 30326
ARTICLE VII
DIRECTORS
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The initial number of directors of the Corporation shall be five, which
number may be increased or decreased pursuant to the Bylaws of the Corporation.
The persons who will serve as the initial directors are George W. Baker, Sr.,
Robert A. Jetmundsen, Boland T. Jones, Eduard J. Mayer and D. Gregory Smith.
ARTICLE VIII
LIMITATION ON DIRECTOR LIABILITY
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No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of the duty of
care or any other duty as a director, except that such liability shall not be
eliminated for:
(i) any appropriation, in violation of the director's duties, of
any business opportunity of the Corporation;
(ii) acts or omissions that involve intentional misconduct or a
knowing violation of law;
(iii) liability under Section 14-2-832 (or any successor provision
or redesignation thereof) of the Code; and
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(iv) any transaction from which the director received an improper
personal benefit.
If at any time the Code shall have been amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
each director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Code, as so amended, without further action by the
shareholders, unless the provisions of the Code, as amended, require further
action by the shareholders.
Any repeal or modification of the foregoing provisions of this Article VIII
shall not adversely affect the elimination or limitation of liability or alleged
liability pursuant hereto of any director of the Corporation for or with respect
to any alleged act or omission of the director occurring prior to such repeal or
modification.
ARTICLE IX
OTHER CONSTITUENCIES
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In discharging the duties of their respective positions and in determining
what is believed to be in the best interests of the Corporation, the Board of
Directors, committees of the Board of Directors, and individual directors, in
addition to considering the effects of any action on the Corporation or its
shareholders, may consider the interests of the employees, customers, suppliers
and creditors of the Corporation and its subsidiaries, the communities in which
offices or other establishments of the Corporation and its subsidiaries are
located, and all other factors such directors consider pertinent. This
provision solely grants discretionary authority to the directors and shall not
be deemed to provide to any other constituency any right to be considered.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation as of the 6th day of December, 1995.
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/s/ Jeffrey A. Allred
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Jeffrey A. Allred, Esq., Incorporator
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EXHIBIT "A"
Preferences, Limitations and Rights of Series A Preferred:
(1) DIVIDENDS AND DISTRIBUTIONS.
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(a) The holders of shares of Series A Preferred shall be entitled to
receive dividends at a rate of eight percent (8%) of the Conversion Value (as
defined in Section 3(a) below) per annum per share of Series A Preferred, which
shall be fully cumulative, prior and in preference to any declaration or payment
of any dividend (payable other than in Common Stock) or other distribution on
any other class or series of Preferred Stock or the Common Stock of the
Corporation (and excluding any stock splits and subdivisions for which an
adjustment is made under Section 3(d)(vi)(1) below). The dividend(s) payable
hereunder shall be payable annually on March 31 of each year (each an "Annual
Dividend Date") commencing on March 31, 1996, except that if any such date is a
Saturday, Sunday or legal holiday (a "Non-Business Day") then such dividend
shall be payable on the next day that is not a Saturday, Sunday or legal holiday
on which banks in the State of Georgia are permitted to be closed (a "Business
Day") to holders of record as they appear on the stock books of the Corporation
on the applicable record date, which shall be not more than 60 nor less than 10
days preceding the payment date for such dividends, as fixed by the Board of
Directors (the "Record Date"). The foregoing dividend on the Series A Preferred
shall accrue from the date of issuance of each share, but shall be payable only
when, as and if declared by the Board of Directors out of funds legally
available therefor. The dividend shall be payable in cash, except as otherwise
provided in the next paragraph. In addition to the above dividends, each person
who is a holder of record of Series A Preferred at the time of the initial
issuance of shares of Series A Preferred by the Corporation shall be entitled to
receive a one-time supplemental dividend per share of Series A Preferred in an
amount equal to the dividend which would have accrued on a share of Series A
Preferred had such share been issued on January 18, 1994, and remained
outstanding until the day prior to the date of initial issuance, with the
dividend computed at the rate of eight percent (8%) of the Conversion Value per
annum per share of Series A Preferred. The supplemental dividend shall be
payable in cash, except as otherwise provided in the next paragraph, on the
Annual Dividend Date occurring on March 31, 1996, or the next following Business
Day. The supplemental dividend shall be payable only when, as and if declared by
the Board of Directors out of funds legally available therefor. All subsequent
references herein to dividends on the Series A Preferred shall include such
supplemental dividend. The amount of dividends payable for any period that is
shorter or longer than a full annual dividend shall be computed on the basis of
a 360-day year of twelve 30-day months. All accrued but unpaid dividends shall
accrue interest after each Annual Dividend Date at a rate of eight percent (8%)
per annum (compounded on an annual basis) from each Annual Dividend Date.
The Board of Directors of the Corporation may, within sixty (60) days after
each Annual Dividend Date, elect (the "Dividend Election") to pay the annual
cash dividends
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payable for such year on such Annual Dividend Date in shares of Common Stock
(the "Payments-in-Kind") rather than cash. If such an election is made, the
Corporation shall promptly notify the holders of record of the Series A
Preferred entitled to such annual dividend of the election to make the Payments-
in-Kind in lieu of cash dividends for such Annual Dividend Date. A Dividend
Election for any particular Annual Dividend Date shall operate only for such
Annual Dividend Date. Payments-in-Kind shall be payable as of the Annual
Dividend Date of each year for which the election is made, except that if such
date is a Non-Business Day then such Payment-in-Kind shall be payable as of the
next Business Day to holders of record as they appear on the stock books of the
Corporation on the applicable Record Date. Each Payment-in-Kind shall be equal
in amount to be that number of shares of Common Stock that is equal in number to
the aggregate cash dividend payable on any such dividend date divided by the
Conversion Value (as defined in Section 3(a) below), and shall be allocated on a
pro rata basis to each holder entitled to receive such dividend. Certificates
representing the shares of Common Stock issuable on payment of any Payment-in-
Kind shall be delivered to each holder entitled to receive such Payment-in-Kind
(in appropriate denominations) on or before the ninetieth (90th) day following
the Annual Dividend Date for which such Payment-in-Kind is elected to be made
hereunder. No interest shall accrue on a Payment-in-Kind issued in compliance
with the terms hereof. If a Payment-in-Kind is not made in compliance with the
terms hereof, the Corporation shall be obligated to pay the cash dividends under
the procedures in the previous paragraph.
(b) Notwithstanding Section l(a) hereof, the Corporation may at any
time, out of funds legally available therefor, repurchase shares of Common Stock
of the Corporation (i) issued to or held by employees, directors or consultants
of the Corporation or its subsidiaries upon termination of their employment or
services, pursuant to any agreement providing for such right of repurchase, or
(ii) issued to or held by any person subject to the Corporation's right of first
refusal to purchase such shares where the purchase is pursuant to the exercise
of such right of first refusal, in either case whether or not dividends on the
Series A Preferred Stock shall have been declared and paid or funds set aside
therefor, subject to any other contractual restrictions entered into by the
Corporation.
(2) LIQUIDATION RIGHTS. In the event of any liquidation, dissolution or
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winding up of the Corporation, whether voluntary or involuntary, distributions
shall be made to the holders of Series A Preferred in respect of such Series A
Preferred before any amount shall be paid to the holders of any other class or
series of capital stock of the Corporation, in the following manner:
(a) SERIES A PREFERRED. The holders of the Series A Preferred shall
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be entitled to be paid first out of the assets of the Corporation available for
distribution to holders of its capital stock an amount per share equal to (i)
the Conversion Value (as defined in Section 3(a) below), as appropriately
adjusted to reflect any stock split, stock dividend, combination,
recapitalization and the like (collectively a "Recapitalization") of the Series
A Preferred, plus (ii) all accrued or declared but unpaid
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dividends (including any interest accrued thereon calculated through the date of
liquidation). If, upon the occurrence of a liquidation, dissolution or winding
up, the assets and funds thus distributed among the holders of the Series A
Preferred shall be insufficient to permit the payment to such holders of their
full liquidation preferences, then the entire assets and funds of the
Corporation legally available for distribution to the holders of capital stock
shall. be distributed ratably among the holders of the Series A Preferred.
(b) REMAINING ASSETS. If assets are remaining after payment of the
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full preferential amount with respect to the Series A Preferred set forth in
Section 2(a) above, then the holders of any other class or series of Preferred
Stock, if any, shall be entitled to their respective preferential amounts on
liquidation, and thereafter the holders of the Common Stock shall be entitled to
share ratably in all such remaining assets and surplus funds based on the number
of shares of Common Stock held by each.
(c) EVENTS DEEMED A LIQUIDATION. For purposes of this Section 2, the
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holders of a majority of the Series A Preferred may elect, as part of any
approval of such class required under Section 8 below, to have treated as a
liquidation, dissolution or winding up of the Corporation the consolidation or
merger of the Corporation with or into any other corporation or the sale or
other transfer in a single transaction or a series of related transactions of
all or substantially all of the assets of the Corporation, or any other
reorganization of the Corporation, unless the stockholders of the Corporation
immediately prior to any such transaction are holders of a majority of the
voting securities of the surviving or acquiring corporation immediately
thereafter (and for purposes of this calculation equity securities which any
stockholder or the Corporation owned immediately prior to such merger or
consolidation as a stockholder of another party to the transaction shall be
disregarded).
(d) VALUATION OF SECURITIES AND PROPERTY. In the event the
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Corporation proposes to distribute assets other than cash in connection with any
liquidation, dissolution or winding up of the Corporation, the value of the
assets to be distributed to the holders of shares of Series A Preferred shall be
determined in good faith by the Board of Directors. Any securities not subject
to investment letter or similar restrictions on free marketability shall be
valued as follows:
(i) If traded on a national securities exchange or the Nasdaq
National Market System ("Nasdaq"), the value shall be deemed to be the
average of the security's closing prices on such exchange or Nasdaq over
the thirty (30) day period ending three (3) days prior to the distribution;
(ii) If actively traded over-the-counter (other than Nasdaq), the
value shall be deemed to be the average of the closing bid prices over the
thirty (30) day period ending three (3) days prior to the distribution; and
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(iii) If there is no active public market, the value shall be the
fair market value thereof as determined in good faith by the Board of
Directors.
The method of valuation of securities subject to investment letter or other
restrictions on free marketability shall be adjusted to make an appropriate
discount from the market value determined as above in clauses (i), (ii) or (iii)
to reflect the fair market value thereof as determined in good faith by the
Board of Directors. The holders of at least 50% of the outstanding Series A
Preferred shall have the right to challenge any determination by the Board of
Directors of fair market value pursuant to this Section 2(d), in which case the
determination of fair market value shall be made by an independent appraiser
selected jointly by the Board of Directors and the challenging parties, the cost
of such appraisal to be borne equally by the Corporation and the challenging
parties.
(3) CONVERSION. The holders of the Series A Preferred have conversion
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rights as follows (the "Conversion Rights"):
(a) RIGHT TO CONVERT. Each share of Series A Preferred shall
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initially be convertible, at the option of the holder thereof, at any time on or
after the earlier of (i) January 18, 1997, (ii) the date the Corporation becomes
subject to the periodic reporting requirements of the Securities Act of 1934, as
amended, (iii) the date the Corporation enters into a transaction for a
consolidation or merger of the Corporation into any other corporation or the
sale or other transfer in a single transaction or series of related transactions
of all or substantially all of the assets of the Corporation which will result
in the exchange of each share of Series A Preferred (or shares issuable upon
conversion thereof) for cash or property with a value (as defined in Section
2(d) of at least two times the Conversion Value (as defined herein) on or prior
to January 18, 1996, and at least three times the Conversion Value if after such
date (a "Qualified Merger"), or (iv) the giving by the Corporation of the
Redemption Notice under Section 5 below (each of the foregoing an "Eligible
Conversion Date"), but not later than on or prior to the second day prior to
such date, if any, as may have been fixed for the redemption thereof in any call
for redemption pursuant to Section 5 below, at the principal office of the
Corporation or any transfer agent for the Series A Preferred, into the number of
fully paid and nonassessable shares of Common Stock which results from dividing
the Conversion Price (as hereinafter specified) per share in effect for such
series at the time of conversion into the per share Conversion Value (as
hereinafter specified) of such series. The initial Conversion Price of the
Series A Preferred shall be $31.012 per share, and the Conversion Value of the
Series A Preferred shall be $31.012 per share. The initial Conversion Price of
the Series A Preferred shall be subject to adjustment from time to time as
provided in Section 3(d) hereof. The Conversion Value shall not be subject to
adjustment (except in connection with a Recapitalization). Upon conversion, all
accrued or declared but unpaid dividends (including any interest accrued thereon
calculated as of the date of conversion) on the Series A Preferred shall be paid
in cash, to the extent permitted by applicable law.
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(b) AUTOMATIC CONVERSION. Each share of Series A Preferred shall
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automatically be converted into shares of Common Stock upon the closing of a
firm commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offer and sale of securities for the account of the Corporation to the
public, (i) the net proceeds of which exceed $10,000,000 at a price per share to
the public of at least $10, and (ii) the aggregate value of the shares of Common
Stock issuable on conversion of each share of Series A Preferred is at least two
times the Conversion Value if prior to or on January 18, 1996, and at least
three times the Conversion Value after such date. Upon conversion, all accrued
or declared but unpaid dividends (including any interest accrued thereon
calculated as of the date of conversion) on the Series A Preferred shall be paid
in cash, to the extent permitted by applicable law.
(c) MECHANICS OF CONVERSION. Before any holder of Series A
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Preferred shall be entitled to convert the same into shares of Common Stock and
to receive certificates therefor, he or she shall surrender the certificate or
certificates therefor, duly endorsed, at the principal office of the Corporation
or of any transfer agent for the Series A Preferred, and shall give written
notice to the Corporation at such office that he or she elects to convert the
same; provided, however, that in the event of an automatic conversion pursuant
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to Section 3(b) hereof, the outstanding shares of Series A Preferred shall be
converted automatically without any further action by the holders of such shares
and whether or not the certificates representing such shares are surrendered to
the Corporation or its transfer agent; and provided further that the Corporation
shall not be obligated to issue certificates evidencing the shares of Common
Stock issuable upon such automatic conversion unless and until the certificates
evidencing such shares of Series A Preferred are either delivered to the
Corporation or its transfer agent as provided above, or the holder notifies the
Corporation or its transfer agent that such certificates have been lost, stolen
or destroyed and executes an agreement satisfactory to the Corporation to
indemnify the Corporation from any loss incurred by it in connection with such
certificates. The Corporation shall, as soon as practicable after such delivery,
or after such agreement and indemnification, issue and deliver at such office to
such holder of Series A Preferred, a certificate or certificates for the number
of shares of Common Stock to which he or she shall be entitled as aforesaid and
a check payable to the holder in the amount of any accrued or declared but
unpaid dividends (including any interest accrued thereon calculated as of the
date of conversion) payable pursuant to Section I hereof, if any. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series A Preferred to be
converted, or, in the case of automatic conversion, immediately prior to the
occurrence of the event leading to such automatic conversion, and the person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock on such date. In the event of a notice of redemption
of any shares of Series A Preferred pursuant to Section 5 below, the conversion
rights shall terminate as to the shares designated for redemption at the close
of business on the second day preceding the redemption date, unless default is
made in payment of the redemption price, in which case the conversion rights for
such shares shall
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continue until such payment. If the Corporation fails to pay all such dividends
(and interest thereon) within twenty (20) days of the date of conversion, the
holder entitled to such dividends (and interest thereon) may elect to have the
Corporation issue to such holder, in lieu of such cash payment, additional
shares of Common Stock calculated by dividing the total amount payable on such
date by the Conversion Value.
(d) ADJUSTMENTS TO CONVERSION PRICE.
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(i) SPECIAL DEFINITIONS. For purposes of this Section 3(d), the
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following definitions shall apply:
(1) "OPTION" shall mean rights, options or warrants to subscribe
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for, purchase or otherwise acquire either Common Stock or Convertible
Securities.
(2) "CONVERTIBLE SECURITIES" shall mean any evidences of
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indebtedness, shares or other securities convertible into or exchangeable
for Common Stock.
(3) "ADDITIONAL SHARES OF COMMON STOCK" shall mean all shares of
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Common Stock issued (or, pursuant to Section 3(d)(iii), deemed to be
issued) by the Corporation after the Original Issue Date, other than shares
of Common Stock issued or issuable:
(A) upon conversion of shares of Series A Preferred;
(B) pursuant to a stock grant, option plan or purchase plan,
other employee stock incentive program or agreement, not to exceed 320,260
shares, net of repurchases and cancellations and expirations (without
exercise) of Options;
(C) as a dividend or distribution on Series A Preferred;
(D) in a transaction described in Section 3(d)(vi); or
(E) by way of dividend or other distribution on shares of
Common Stock excluded from the definition of Additional Shares of Common
Stock by the foregoing clauses (A), (B), (C), (D), or this clause (E).
(4) "ORIGINAL ISSUANCE DATE" shall mean the date on which the
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first share of Series A Preferred was issued.
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(ii) NO ADJUSTMENT OF CONVERSION PRICE. No adjustment in the
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Conversion Price of the Series A Preferred shall be made in respect of the
issuance of Additional Shares of Common Stock unless the consideration per
share for an Additional Share of Common Stock issued or deemed to be issued
by the Corporation is less than the Conversion Price for the Series A
Preferred in effect on the date of, and immediately prior to, such issue.
(iii) DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON STOCK.
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(1) OPTIONS AND CONVERTIBLE SECURITIES. In the event the
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Corporation at any time or from time to time after the Original Issue Date
shall issue any Options (other than the issuance of Options pursuant to the
Corporation's Option Pool of 25,000 shares of Common Stock, and the
issuance of Options in replacement or substitution of the Options issued
prior to the Original Issue Date) or Convertible Securities or shall fix a
record date for the determination of holders of any class of securities
entitled to receive any such Options or Convertible Securities, then the
maximum number of shares (as set forth in the instrument relating thereto
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without regard to any provisions contained therein for a subsequent
adjustment of such number) of Common Stock issuable upon the exercise of
such Options or, in the case of Convertible Securities and Options
therefor, the exercise of such Options and conversion or exchange of such
Convertible Securities shall be deemed to be Additional Shares of Common
Stock issued as of the time of such issue or, in case such a record date
shall have been fixed, as of the close of business on such record date,
provided that Additional Shares of Common Stock shall not be deemed to have
been issued unless the consideration per share (determined pursuant to
Section 3(d)(v) hereof) of such Additional Shares of Common Stock would be
less than the Conversion Price in effect on the date of and immediately
prior to such issue, or such record date, as the case may be, and provided
further that in any such case in which Additional Shares of Common Stock
are deemed to be issued:
(A) except as provided in Section 3(d)(iii)(1)(B), no further
adjustment in the Conversion Price shall be made upon the subsequent issue
of Convertible Securities or shares of Common Stock upon the exercise of
such Options or conversion or exchange of such Convertible Securities;
(B) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any change in the
consideration payable to the Corporation, or change in the number of shares
of Common Stock issuable, upon the exercise, conversion or exchange thereof
(other than under or by reason of provisions designed to protect against
dilution), the Conversion Price computed upon the original issue thereof
(or upon
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the occurrence of a record date with respect thereto) and any subsequent
adjustments based thereon, shall, upon any such increase or decrease
becoming effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options or the rights of conversion or exchange
under such Convertible Securities; and
(C) no readjustment pursuant to clause (B) above shall have the
effect of increasing the Conversion Price to an amount which exceeds the
lower of (1) the Conversion Price on the original adjustment date or (2)
the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and
such readjustment date.
(iv) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF ADDITIONAL
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SHARES OF COMMON STOCK. In the event the Corporation shall issue
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Additional Shares of Common Stock (including Additional Shares of Common
Stock deemed to be issued pursuant to Section 3(d)(iii)) without
consideration or for a consideration per share less than the Conversion
Price of the Series A Preferred in effect on the date of and immediately
prior to such issue (such issuance price being referred to herein as the
"Dilution Price"), then and in each such event the Conversion Price of the
Series A Preferred shall be reduced to a price (calculated to the nearest
cent) determined by multiplying such Conversion Price by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issue plus the number of shares of
Common Stock which the aggregate consideration received by the Corporation
for the total number of Additional Shares of Common Stock so issued would
purchase at such Conversion Price; and the denominator of which shall be
the number of shares of Common Stock outstanding immediately prior to such
issue plus the number of such Additional Shares of Common Stock so issued;
provided that, for the purposes of this Section 3(d)(iv), all shares of
Common Stock issuable upon conversion of all outstanding Series A Preferred
and other classes or series of Preferred Stock and all outstanding Options
(provided such Options have an exercise price below the Conversion Price of
the Series A Preferred immediately prior to such issue) and Convertible
Securities shall be deemed to be outstanding, and, immediately after any
Additional Shares of Common Stock are deemed issued pursuant to Section
3(d)(iii) such Additional Shares of Common Stock shall be deemed to be
outstanding.
(v) DETERMINATION OF CONSIDERATION. For purposes of this
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Section 3(d), the consideration received by the Corporation for the issue
of any Additional Shares of Common Stock shall be computed as follows:
(1) CASH AND PROPERTY: Such consideration shall:
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(A) insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Corporation;
(B) insofar as it consists of property other than cash, be
computed at the fair value thereof at the time of such issue, as determined
by the Board of Directors in the good faith exercise of its reasonable
business judgment; and
(C) in the event Additional Shares of Common Stock are issued
together with other shares or securities or other assets of the Corporation
for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (A) and (B)
above, as determined by the Board of Directors in the good faith exercise
of its reasonable business judgment.
(2) OPTIONS AND CONVERTIBLE SECURITIES. The consideration per
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share received by the Corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to Section 3(d)(iii)(1), relating to
Options and Convertible Securities, shall be determined by dividing
(A) the total amount, if any, received or receivable by the
Corporation as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration
(as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of such Options
or the conversion or exchange of such Convertible Securities, or in the
case of Options for Convertible Securities, the exercise of such Options
for Convertible Securities and the conversion or exchange of such
Convertible Securities, by
(B) the maximum number of shares of Common Stock (as set forth
in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number) issuable upon
the exercise of such Options or the conversion or exchange of such
Convertible Securities.
(vi) OTHER ADJUSTMENTS.
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(1) SUBDIVISIONS, COMBINATIONS, OR CONSOLIDATIONS OF COMMON
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STOCK. In the event the outstanding shares of Common Stock shall be
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subdivided, combined or consolidated, by stock split, stock dividend,
combination or like event, into a greater or lesser number of shares of
Common Stock, the Conversion Price of the Series A Preferred in effect
immediately prior to such subdivision, combination, consolidation or stock
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dividend shall, concurrently with the effectiveness of such subdivision,
combination or consolidation, be proportionately adjusted.
(2) RECLASSIFICATIONS. In the case, at any time after the date
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hereof, of any capital reorganization or any reclassification of the stock
of the Corporation (other than as a result of a stock dividend or
subdivision, split-up or combination of shares), or the consolidation or
merger of the Corporation with or into another person (other than a
consolidation or merger (A) in which the Corporation is the continuing
entity and which does not result in any change in the Common Stock or (B)
which is treated as a liquidation pursuant to Section 2(c)), the shares of
the Series A Preferred shall, after such reorganization, reclassification,
consolidation or merger be convertible into the kind and number of shares
of stock or other securities or property of the Corporation or otherwise to
which such holder would have been entitled if immediately prior to such
reorganization, reclassification, consolidation or merger he had converted
his shares of the Series A Preferred into Common Stock. The provisions of
this clause 3(d)(vi)(2) shall similarly apply to successive
reorganizations, reclassifications, consolidations or mergers.
(e) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
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adjustment or readjustment of the Conversion Price of the Series A Preferred
pursuant to this Section 3, the Corporation at its expense shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of Series A Preferred a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of any holder of Series A Preferred, furnish or cause to be
furnished to such holder a like certificate setting forth (i) such adjustments
and readjustments, (ii) the Conversion Price of the Series A Preferred at the
time in effect, and (iii) the number of shares of Common Stock and the amount,
if any, of other property which at the time would be received upon the
conversion of the Series A Preferred.
(f) STATUS OF CONVERTED STOCK. In case any shares of Series A
-------------------------
Preferred shall be converted pursuant to Section 3 hereof, the shares so
converted shall be canceled, shall not be reissuable and shall cease to be a
part of the authorized capital stock of the Corporation.
(g) FRACTIONAL SHARES. In lieu of any fractional shares to which
-----------------
the holder of Series A Preferred would otherwise be entitled upon conversion,
the Corporation shall pay cash equal to such fraction multiplied by the fair
market value of one share of Common Stock as determined by the Board of
Directors in the good faith exercise of its reasonable business judgment.
(h) MISCELLANEOUS.
-------------
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(i) All calculations under this Section 3 shall be made to the
nearest cent or to the nearest one hundredth (1/100) of a share, as the
case may be.
(ii) The holders of at least 50% of the outstanding Series A
Preferred shall have the right to challenge any determination by the Board
of Directors of fair market value pursuant to this Section 3, in which case
such determination of fair market value shall be made by an independent
appraiser selected jointly by the Board of Directors and the challenging
parties, the cost of such appraisal to be borne equally by the Corporation
and the challenging parties.
(iii) No adjustment in the Conversion Price of the Series A
Preferred need be made if such adjustment would result in a change in such
Conversion Price of less than $0.01. Any adjustment of less than $0.01
which is not made shall be carried forward and shall be made at the time of
and together with any subsequent adjustment which, on a cumulative basis,
amounts to an adjustment of $0.01 or more in such Conversion Price.
(i) NO IMPAIRMENT. The Corporation will not through any
-------------
reorganization, recapitalization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Corporation, but will at all times in good faith
assist in the carrying out of all the provisions of this Section 3 and in the
taking of all such action as may be necessary or appropriate in order to protect
the conversion rights of the holders of Series A Preferred against impairment.
(j) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The
---------------------------------------------
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of Series A Preferred, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of Series A Preferred. If at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of Series A Preferred, the
Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for such purpose.
(4) VOTING RIGHTS. Except as otherwise required by law or by
-------------
Section 8 hereof, the holders of all Series A Preferred issued and outstanding,
in the aggregate, shall be entitled to the number of votes equal to (a) sixteen
percent (16%) of the number of shares of Common Stock at the record date for
determination of the stockholders entitled to vote on such matters, minus (b)
the number of votes attributable to shares of Common Stock previously issued
upon conversion of such Series A Preferred, if any, or, if no such record date
is established, at the date such vote is taken or any written consent of
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stockholders is solicited, such votes to be counted together with all other
shares of stock of the Corporation having general voting power and not
separately as a class. Fractional votes by the holders of Series A Preferred
shall not, however, be permitted, and any fractional voting rights shall (after
aggregating all shares into which shares of Series A Preferred held by each
holder could be converted) be rounded to the nearest whole number.
(5) REDEMPTION.
----------
(a) At any time after January 18, 1996, the Corporation may, by
giving a Notice of Redemption (as defined below), elect to redeem all (and not
less than all) of the Series A Preferred outstanding on the Redemption Date (as
defined below) out of funds legally available therefor. The Corporation shall
pay in cash therefor a sum per share equal to three times the Conversion Value,
together with all accrued or declared but unpaid dividends (including any
interest accrued thereon) calculated as of the earlier of (i) ten (10) days
following the Notice of Redemption or (ii) the date of conversion of the Series
A Preferred pursuant to Section 5(b)(ii) with respect to such shares as of the
date of the redemption (collectively the "Redemption Value").
(b) Any notice of redemption (the "Notice of Redemption") given by
the Corporation shall be delivered by mail, first class postage prepaid, to each
holder of record (at the close of business on the business day preceding the day
on which notice is given) of Series A Preferred, at the address last shown on
the records of the Corporation for such holder or given by the holder to the
Corporation, for the purpose of notifying such holder of the redemption to be
effected. The Notice of Redemption shall specify a date (the "Redemption Date")
between 45 and 75 days after the mailing of the Notice of Redemption on which
the Series A Preferred then outstanding shall be redeemed and the place at which
payment may be obtained, which shall be the principal offices of the Corporation
or such other place as shall be mutually agreeable to the Corporation and
holders of a majority of the Series A Preferred. The Notice of Redemption shall
call upon each holder of Series A Preferred to either (i) surrender to the
Corporation, in the manner and at the place designated, such holder's
certificate or certificates representing the shares to be redeemed or (ii)
convert such Series A Preferred into Common Stock prior to the Redemption Date
in accordance with the provisions of Section 3 above.
(c) On the Redemption Date, the Corporation shall pay by cash or
check to the order of the person whose name appears on the certificate or
certificates of the Series A Preferred that (i) shall not have been converted
pursuant to Section 3 hereof and (ii) shall have been surrendered to the
Corporation in the manner and at the place designated in the Notice of
Redemption, the Redemption Value, and thereupon each surrendered certificate
shall be canceled.
(d) If the funds of the Corporation legally available for
redemption of the Series A Preferred are insufficient to redeem the total number
of shares
-12-
of Series A Preferred outstanding on the Redemption Date, the Corporation shall
not have the right to redeem any of the Series A Preferred.
(e) From and after the Redemption Date, unless there shall have
been a default in payment of the Redemption Value, all rights of the holders of
shares of Series A Preferred (except the right to receive the Redemption Value
subsequent to the Redemption Date upon surrender of their certificate or
certificates) shall cease with respect to such shares, and such shares shall not
thereafter be transferred on the books of the Corporation or be deemed to be
outstanding for any purpose whatsoever.
(6) NOTICES OF RECORD DATE. In the event of any taking by the
----------------------
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend or other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, the Corporation shall mail to each
holder of Series A Preferred, at least twenty (20) days prior to the date
specified therein, a notice specifying the date on which any such record is to
be taken for the purpose of such dividend, distribution or right, and the amount
and character of such dividend, distribution or right.
(7) NOTICES. Any notice required by the provisions of the Articles
-------
of Incorporation to be given to the holders of Series A Preferred shall be
deemed given when deposited in the United States mail, postage prepaid, and
addressed to each holder of record at his or her address appearing on the books
of the Corporation.
(8) PROTECTIVE PROVISIONS.
---------------------
(a) APPROVAL OF CERTAIN TRANSACTIONS WHILE ANY SERIES A PREFERRED
-------------------------------------------------------------
IS OUTSTANDING. So long as any shares of Series A Preferred are outstanding,
- --------------
the Corporation shall not, without first obtaining the approval of the holders
of at least a majority of the Series A Preferred then outstanding, voting as a
separate class, take any action that:
(i) alters the rights, preferences or privileges of the Series
A Preferred;
(ii) increases or decreases the authorized number of shares of
Series A Preferred or any series of Preferred Stock of the Corporation;
(iii) creates any new class or series of shares that has a
preference over or is on a parity with the Series A Preferred with respect
to voting, dividends or liquidation preferences;
-13-
(iv) reclassifies stock into shares having a preference over or
parity with the Series A Preferred with respect to voting, dividends or
liquidation preferences;
(v) authorizes any dividend or other distribution with respect
to the Common Stock (other than a dividend payable in Common Stock or as
authorized by Section 1);
(vi) repurchases, redeems or retires any shares of capital stock
of the Corporation other than pursuant to contractual rights to repurchase
shares of Common Stock held by employees, directors or consultants of the
Corporation or its subsidiaries upon termination of their employment or
services or pursuant to the exercise of a contractual right of first
refusal held by the Corporation.
(b) APPROVAL OF CERTAIN TRANSACTIONS AS LONG AS AT LEAST 64,492
-----------------------------------------------------------
SERIES A PREFERRED OUTSTANDING. As long as at least 64,492 shares of Series A
- ------------------------------
Preferred are outstanding (as adjusted for any Recapitalization), the
Corporation shall not, without first obtaining the approval of the holders of at
least a majority of the Series A Preferred then outstanding, voting as a
separate class, take any action that:
(i) results in the consolidation or merger with or into any
other corporation (other than a merger approved under Section 8(b)(iv)
below) or the sale or other transfer in a single transaction or a series of
related transactions of all or substantially all of the assets of the
Corporation, or otherwise results in the reorganization of the Corporation;
provided, however, that no such approval shall be necessary if any of the
--------
above transactions results in cash proceeds or equity securities that are
freely tradeable on a recognized public market to the holders of Series A
Preferred of a value of at least (i) two times the Conversion Value if such
transaction(s) occurs prior to or on January 18, 1996, or (ii) three times
the Conversion Value if after such date (as adjusted for any
Recapitalization);
(ii) materially changes the business of the Corporation to a
business outside the field of telecommunications;
(iii) issues any Common Stock or other security of the Corporation
exchangeable, convertible or exercisable into any of the capital stock of
the Corporation, except pursuant to the stock or option plans permitted
under Section 3(d)(B);
(iv) involves the acquisition, by merger or otherwise, by the
Corporation of assets or securities valued at more than $1,000,000 in one
or a series of related transactions;
-14-
(v) requires the Corporation to incur any indebtedness in excess
of that obtained under credit facilities from credit sources regularly
engaged in lending for working capital purposes, except for the refinancing
of any existing indebtedness and trade payables (including acquisitions of
equipment) in the ordinary course of business;
(vi) consummates any material transaction with an "affiliate" (as
such term is used under the Securities Act of 1933, as amended) of the
Corporation; or
(vii) increases management compensation to Boland T. Jones, D.
Gregory Smith or Leonard DeNittis by more than ten percent (10%) of the
amounts permitted by their respective employment agreements in effect on
the date of these Articles of Incorporation.
-15-
ARTICLES OF MERGER
OF
PREMIERE TECHNOLOGIES, INC.,
A FLORIDA CORPORATION
AND
PREMIERE TECHNOLOGIES REINCORPORATION, INC.,
A GEORGIA CORPORATION
Pursuant to the respective provisions of the Florida Business Corporation Act
and the Georgia Business Corporation Code, the corporations herein named do
hereby adopt the following Articles of Merger.
1.
Annexed hereto as Exhibit "A" and made a part hereof is the Agreement and
Plan of Merger for merging PREMIERE TECHNOLOGIES, INC., a Florida corporation
("Premiere"), with and into PREMIERE TECHNOLOGIES REINCORPORATION, INC., a
Georgia corporation ("Premiere Reincorporation"), as adopted by the Board of
Directors of Premiere on December 6, 1995, and adopted by the Board of Directors
of Premiere Reincorporation on December 6, 1995.
2.
The shareholders of Premiere entitled to vote thereon approved and duly
adopted the Agreement and Plan of Merger on December 16, 1995, and the sole
shareholder of Premiere Reincorporation approved and duly adopted the Agreement
and Plan of Merger on December 6, 1995.
3.
The merger of Premiere with and into Premiere Reincorporation is permitted
by the laws of Georgia (the jurisdiction of organization of Premiere
Reincorporation) and has been authorized in compliance with such laws.
4.
The merger of Premiere with and into Premiere Reincorporation is permitted
by the laws of Florida (the jurisdiction of organization of Premiere) and has
been authorized in compliance with such laws.
5.
Pursuant to the Agreement and Plan of Merger, Article I of the Articles of
Incorporation of Premiere Reincorporation, shall, at the effective time of the
merger of
-1-
Premiere with and into Premiere Reincorporation and without any further act or
action of Premiere Reincorporation, be amended to read: "The name of the
Corporation is Premiere Technologies, Inc."
IN WITNESS WHEREOF, the undersigned corporations have executed these
Articles of Merger this 18th day of December, 1995.
Premiere Technologies, Inc. a Florida corporation
By: /s/ Boland T. Jones
-------------------
Boland T. Jones, President
Attest: /s/ Patrick G. Jones
--------------------
Patrick G. Jones, Assistant Secretary
[CORPORATE SEAL]
Premiere Technologies Reincorporation, Inc. a
Georgia corporation
By: /s/ Boland T. Jones
-------------------
Boland T. Jones, President
Attest: /s/ Patrick G. Jones
--------------------
Patrick G. Jones, Secretary
[CORPORATE SEAL]
-2-
EXHIBIT A
---------
Agreement and plan of Merger
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION
OF PREMIERE TECHNOLOGIES, INC.
1. The name of the Corporation is Premiere Technologies, Inc.
2. Article III of the Articles of Incorporation of the Corporation are amended
to designate a new series of the preferred stock, par value $.01 per share, of
the Corporation, as follows:
"The second series of preferred stock, par value $.01 per share, shall
be designated as Series B Voting Preferred Stock ("Series B Voting
Preferred"), will consist of one (1) share, and will have the
preferences, voting powers, relative, participating, optional or other
special rights and privileges, and the qualifications, limitations and
restrictions as shown on EXHIBIT "B" attached hereto and incorporated
herein by reference."
3. The amendment was adopted on April 28, 1997.
4. The amendment was duly adopted by the board of directors of the Corporation.
PREMIERE TECHNOLOGIES, INC.
By: /s/ Patrick G. Jones
--------------------
Patrick G. Jones
Senior Vice President-Finance and
Legal
-1-
EXHIBIT "B"
PREFERENCES, LIMITATIONS AND RIGHTS OF SERIES B VOTING PREFERRED:
1. Dividends. The holder of Series B Voting Preferred shall not be entitled to
receive any dividends declared and paid by the Corporation.
2. Voting Rights. Except as otherwise required by law or the Articles of
Incorporation, (i) the holder of record of the share of Series B Voting
Preferred shall have a number of votes equal to the number of votes that the
holders of the outstanding Exchangeable Non-Voting Shares ("Exchangeable
Shares") of Voice-Tel Canada Limited, a wholly-owned subsidiary of the
Corporation (the "Subsidiary") from time to time, which are not owned by the
Corporation, any of its subsidiaries or any person directly or indirectly
controlled by or under common control of the Corporation, would be entitled to
if all such Exchangeable Shares were exchanged by the holders thereof for shares
of the Common Stock of the Corporation pursuant to the terms of the Exchangeable
Shares, in each case for the election of directors and on all matters submitted
to a vote of the shareholders of the Corporation, and (ii) in respect of all
matters concerning the voting of shares, the Series B Voting Preferred and the
Common Stock of the Corporation shall vote as a single
class.
3. Liquidation Preference. Upon any liquidation, dissolution or winding-up of
the Corporation, whether voluntary or involuntary, and subject to any prior
rights of holders of shares of preferred stock ranking senior to the Series B
Voting Preferred, the holder of the share of Series B Voting Preferred shall be
paid an amount equal to $1.00, together with payment to any class of stock
ranking equally with the Series B Voting Preferred, and before payment shall be
made to holders of any stock ranking on liquidation junior to the Series B
Voting Preferred (such amount payable with respect to the Series B Voting
Preferred being referred to as the Series B Voting Preferred Liquidation
Preference Payment").
4. Cancellation. At such time as the Series B Voting Preferred has no votes
attached to it because there are no Exchangeable Shares of the Subsidiary
outstanding which are not owned by the Corporation, any of its subsidiaries or
any person directly or indirectly controlled by or under common control of the
Corporation, and there are no shares of stock, debt, options or other agreements
of the Subsidiary which could give rise to the issuance of any Exchangeable
Shares of the Subsidiary to any person (other than the Corporation, any of its
subsidiaries or any person directly or indirectly controlled by or under common
control of the Corporation), the Series B Voting Preferred shall be canceled
without any action required by the holder thereof or the Corporation.
-2-
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
PREMIERE TECHNOLOGIES, INC.
1. The name of the corporation is: Premiere Technologies, Inc., a Georgia
corporation (hereinafter called the "Corporation"), which hereby certifies as
-----------
follows:
2. Article III of the Amended and Restated Articles of Incorporation is hereby
amended to designate a new series of the preferred stock, par value $.01 per
share, of the Corporation as follows:
1. Series C Junior Participating Preferred Stock. There is hereby
---------------------------------------------
established a series of Preferred Stock, par value $.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
"Series C Junior 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
500,000, 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 canceled 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 $1.00 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
-1-
distribution payment date, fixed for that 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 1000 shares of
Common Stock, par value $0.01 per share ("Common Stock"), of the Corporation.
In the event the Corporation shall at any time (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
-2-
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) $1.00 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
shareholders 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 shareholders
required by law or by the Amended and Restated Articles 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.
3. The amendment was adopted on June 23, 1998.
-3-
4. The foregoing amendment did not require shareholder approval. The
foregoing amendment was duly approved by the Board of Directors of the
Corporation on June 23, 1998.
/s/ Patrick G. Jones
--------------------
Patrick G. Jones
Senior Vice President
Chief Legal Officer
Corporate Secretary
-4-