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EXHIBIT 3.1
ARTICLES OF RESTATEMENT
OF THE
ARTICLES OF INCORPORATION
OF
HUNTSMAN PACKAGING CORPORATION
EFFECTIVE MAY 31, 2000 AT 9:00 A.M. MDT
In accordance with Section 16-10a-1007 of the Utah Revised
Business Corporation Act (the "URBCA"), Huntsman Packaging Corporation, a Utah
corporation (the "Corporation"), hereby declares and certifies as follows:
1. The name of the Corporation is Huntsman Packaging Corporation.
2. The text of the Third Amended and Restated Articles of
Incorporation of the Corporation (the "Amended and Restated Articles") is
attached hereto as Exhibit A and is incorporated herein by this reference.
3. The amendments contained in the Amended and Restated Articles
do not provide for a cancellation of issued shares of the Corporation. The
amendments contained in the Amended and Restated Articles provide for a
reclassification of issued shares of the Corporation. The reclassification shall
be as set forth in the Amended and Restated Articles and the reclassification
and exchange of issued shares of the Corporation shall be implemented as
follows:
(a) At the effective time of these Articles of Restatement (the
"Effective Time"), each issued share of the Class A Common
Stock, the Class B Common Stock and the Class C Common
Stock of the Corporation (collectively, the "Prior Common
Stock") shall be reclassified into one (1) share of Common
Stock of the Corporation, such that (a) the 1,000,001
issued shares of the Class A Common Stock of the
Corporation shall be reclassified into the same number of
issued shares of Common Stock of the Corporation, (b) the
6,999 issued shares of the Class B Common Stock of the
Corporation shall be reclassified into the same number of
issued shares of Common Stock of the Corporation, and (c)
the 49,511 issued shares of the Class C Common Stock of the
Corporation shall be reclassified into the same number of
issued shares of Common Stock of the Corporation.
(b) At or as soon as practicable following the Effective Time,
each holder of the Prior Common Stock shall exchange each
certificate evidencing Prior Common Stock with the
Corporation for a certificate evidencing the appropriate
number of shares of Common Stock of the Corporation. Until
the time that any certificate evidencing Prior Common Stock
has been exchanged in accordance with the preceding
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sentence, such certificate shall be deemed, for all
purposes, to represent the applicable number of shares of
Common Stock of the Corporation.
4. The Amended and Restated Articles were adopted as of May 24,
2000 in accordance with the requirements of the URBCA.
5. The Amended and Restated Articles were approved by the
shareholders of the Corporation. The designation, number of outstanding shares,
number of votes entitled to be cast by each voting group entitled to vote
separately, number of votes of each voting group indisputably represented, and
the total number of votes cast for and against the Amended and Restated Articles
by each voting group were as follows:
- --------------------------------------------------------------------------------------------------------------
Votes
Outstanding Entitled Votes Votes Votes
Designation Shares to be Represented For Against
----------- ------ Cast ----------- --- -------
----
- --------------------------------------------------------------------------------------------------------------
Class A Common
Stock, Class B 1,056,511 1,056,511 1,056,511 1,056,511 0
Common Stock and
Class C Common
Stock
- --------------------------------------------------------------------------------------------------------------
The number of votes cast for the Amended and Restated Articles was sufficient
for approval. Pursuant to the Second Amended and Restated Articles of
Incorporation of the Corporation and Section 16-10a-1004(5) of the URBCA, each
of the Class A Common Stock, the Class B Common Stock and the Class C Common
Stock of the Corporation was voted together as a single voting group.
6. Pursuant to Sections 16-10a-1007(5) and 16-10a-123 of the
URBCA, these Articles of Restatement shall be effective on May 31, 2000 at 9:00
a.m. Mountain Daylight Time.
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IN WITNESS WHEREOF, these Articles of Restatement have been
executed by the Corporation on May 30, 2000.
HUNTSMAN PACKAGING CORPORATION,
A UTAH CORPORATION
/s/ RONALD G. MOFFITT
----------------------------
Ronald G. Moffitt
Executive Vice President and
General Counsel
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MAILING ADDRESS
If, upon completion of filing of the above Articles of
Restatement, the Utah Department of Commerce, Division of Corporations and
Commercial Code elects to send a copy of the Articles of Restatement to Huntsman
Packaging Corporation by mail, the address to which the copy should be mailed
is:
Huntsman Packaging Corporation
500 Huntsman Way
Salt Lake City, Utah 84108
Attention: Legal Department
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EXHIBIT A
THIRD AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
HUNTSMAN PACKAGING CORPORATION
Pursuant to and in accordance with Section 16-10a-1007 of the Utah
Revised Business Corporation Act (the "URBCA"), the following are the Third
Amended and Restated Articles of Incorporation of Huntsman Packaging
Corporation, a Utah corporation (the "Corporation"):
ARTICLE I
NAME
The name of the Corporation is Huntsman Packaging Corporation.
ARTICLE II
PURPOSES AND POWERS
The Corporation is organized to engage in any and all lawful acts,
activities, and/or pursuits for which corporations may presently or hereafter be
organized under the URBCA.
The Corporation shall have all powers allowed by law, including
without limitation those powers described in Section 16-10a-302 of the URBCA.
The purposes stated herein shall be construed as powers as well as purposes and
the enumeration of a specific purpose or power shall not be construed to limit
or restrict the meaning of general terms or the general powers; nor shall the
expression of one thing be deemed to exclude another not expressed, although it
be of like nature.
ARTICLE III
AUTHORIZED SHARES
3.1 GENERAL.
The Corporation is authorized to issue two classes of shares, and
the total number of shares of all classes that the Corporation is authorized to
issue is Ten Million Two Hundred Thousand (10,200,000) shares. The capitalized
terms used in this Article III have the meanings specified in context or in
Section 3.4 below. The number of authorized shares and the designation,
preferences, limitations and relative rights of each class of shares of the
Corporation are as set forth in the further provisions of this Article III.
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3.2 COMMON STOCK.
(a) Number, Designation and Par Value. The Corporation is
authorized to issue Ten Million (10,000,000) shares designated as "Common Stock"
(the "Common Stock"). The Common Stock shall have no par value.
(b) Voting. All voting rights of the Corporation, subject to
any preferences or rights that may be granted to the holders of the Preferred
Stock, shall be exercised by the holders of the Common Stock. Each outstanding
share of Common Stock shall be entitled to one (1) vote on each matter to be
voted upon by the holders of the Common Stock.
(c) Net Assets. The holders of the Common Stock, subject to any
preferences or rights that may be granted to the holders of the Preferred Stock,
shall be entitled to receive the net assets of the Corporation upon the
dissolution of the Corporation.
(d) Payment. All issued shares the Common Stock shall be fully
paid and nonassessable.
3.3 PREFERRED STOCK.
(a) Number, Designation and Par Value. The Corporation is
authorized to issue Two Hundred Thousand (200,000) shares designated as
"Preferred Stock" (the "Preferred Stock") The Preferred Stock shall have no par
value.
(b) Series A Preferred Stock. The Corporation shall have a
series of Preferred Stock that shall consist of One Hundred Thousand (100,000)
shares of Preferred Stock and shall be designated as "Series A Cumulative
Exchangeable Redeemable Preferred Stock" (the "Series A Preferred Stock"). The
preferences, limitations and relative rights of the Series A Preferred Stock are
as follows:
(i) Dividends.
(A) The Corporation shall accrue dividends on
each share of Series A Preferred Stock at a rate per annum equal
to the Series A Dividend Rate on the Series A Liquidation Amount
from time to time for such share. Dividends shall accrue on a
daily basis regardless of whether they have been declared and
whether there are profits, surplus or other funds of the
Corporation legally available for the payment of dividends.
Dividends on the Series A Preferred Stock for any period shall be
computed on the basis of a 360-day year consisting of twelve
30-day months. All dividends on the Series A Preferred Stock that
accrue during any Series A Dividend Period and that remain unpaid
on the Series A Dividend Date on which such Series A Dividend
Period ends shall cumulate and shall be added to the Series A
Liquidation Amount for such share as of such Series A Dividend
Date.
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(B) Dividends on the Series A Preferred Stock
(when, as and if declared by the Board, out of funds legally
available therefor) shall be payable in cash on each Series A
Dividend Date.
(C) Dividends payable on the Series A Preferred
Stock on any Series A Dividend Date pursuant to Section
3.3(b)(i)(B) shall be paid to the Series A Holders as they appear
on the stock records of the Corporation on such date (the "Series
A Record Date") as shall be fixed by the Board, which Series A
Record Date shall not be more than 60 days prior to the applicable
Series A Dividend Date and shall not precede the date upon which
the resolution fixing such Series A Record Date is adopted. All
payments due under this Section 3.3(b)(i) to any Series A Holder
shall be made to the nearest cent.
(D) So long as any shares of the Series A
Preferred Stock are outstanding, the Corporation shall not,
directly or indirectly, and whether in cash, securities or other
property, pay or declare or set apart for payment any dividend or
make any other distribution or other payment on or with respect to
any Junior Security (other than dividends or distributions paid
solely in additional shares of such Junior Security) or redeem,
repurchase or otherwise acquire any Junior Security unless the
Corporation has paid, or at the same time pays, all dividends on
the Series A Preferred Stock accrued and unpaid since the Original
Issuance Date; provided, however, that nothing in this Section
3.3(b)(i)(D) shall prohibit any repurchase of Junior Securities
that is otherwise permitted under Section 4.04(b)(vi) of the New
Notes Indenture as in effect on the date hereof.
(E) Except as otherwise provided herein, if at
any time the Corporation pays less than the total amount of
dividends on the Series A Preferred Stock accrued and unpaid since
the Original Issuance Date, such payment shall be made ratably
among the Series A Holders based upon the number of shares of
Series A Preferred Stock then held by each Series A Holder.
(ii) Liquidation. Upon a Liquidation, after payment or provision
for payment in cash or cash equivalents of the debts and other
liabilities of the Corporation, the Series A Holders shall be entitled to
receive, out of the remaining assets of the Corporation available for
distribution to its stockholders, with respect to each share of Series A
Preferred Stock, an amount equal to the Series A Liquidation Amount
(whether or not there are assets of the Corporation available for the
payment of dividends) of such share plus an amount equal to all accrued
and unpaid dividends thereon from the last Series A Dividend Date to the
date fixed for such Liquidation before any distribution shall be made to
the holders of Junior Securities. If, upon any Liquidation, the assets of
the Corporation available for distribution to its stockholders shall be
insufficient to pay the Series A Holders the full Series A Liquidation
Amount and all such accrued and unpaid dividends to which they shall be
entitled, the Series A Holders shall share in any distribution of assets
pro rata in accordance with the total Series A Liquidation Amount and all
such accrued and unpaid dividends that each such Series A Holder would
have
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received had there been such sufficient assets. After payment of the full
Series A Liquidation Amount and all such accrued and unpaid dividends to
the Series A Holders, the Series A Holders shall not, in their capacity
as Series A Holders, be entitled to any further participation in any
further distribution of assets by the Corporation.
(iii) Mandatory Redemption.
(A) Subject to the Corporation having funds legally
available for such purpose, the Corporation shall redeem all shares of
the Series A Preferred Stock then outstanding on the Mandatory Redemption
Date. The per share redemption price at which shares of the Series A
Preferred Stock shall be redeemed pursuant to this Section 3.3(b)(iii)
shall be an amount in cash equal to the sum of (x) the Series A
Liquidation Amount plus (y) an amount equal to all accrued and unpaid
dividends thereon from the last Series A Dividend Date to the Mandatory
Redemption Date (the "Mandatory Redemption Price"). If the funds of the
Corporation legally available for redemption of shares of Series A
Preferred Stock shall be insufficient to permit the payment of the
Mandatory Redemption Price required to be paid pursuant to this Section
3.3(b)(iii), then the Corporation shall redeem shares of Series A
Preferred Stock from the Series A Holders out of funds legally available
therefor ratably based upon the number of shares of Series A Preferred
Stock that each Series A Holder holds, and the Corporation shall redeem
the unredeemed shares of Series A Preferred Stock as soon as practicable
after the Corporation has funds legally available therefor.
(B) On and after the Mandatory Redemption Date (unless
default shall be made by the Corporation in the payment of the Mandatory
Redemption Price, in which event such rights shall be exercisable until
such default is cured), to the extent permitted by applicable law (x)
dividends shall cease to accrue with respect to such shares, (y) all
other rights with respect to the Series A Preferred Stock, except the
right to receive the Mandatory Redemption Price, shall cease and
terminate, and (z) such shares shall no longer be deemed to be
outstanding, whether or not the certificates representing such shares
have been received by the Corporation.
(C) At any time on or after the Mandatory Redemption
Date, the Series A Holders of shares of Series A Preferred Stock shall be
entitled to receive the Mandatory Redemption Price in cash, by certified
or official bank check or wire transfer, upon actual delivery to the
Corporation or its agent of the certificates representing shares of
Series A Preferred Stock.
(iv) Redemption Upon a Change of Control.
(A) Not less than ten (10) days and not more than sixty
(60) days prior to the proposed Change of Control Payment Date in
connection with the Change of Control Offer referred to below, the
Corporation shall mail, in accordance with Section 3.3(b)(iv)(B), an
offer to redeem the then outstanding
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shares of Series A Preferred Stock at a redemption price per share in
cash equal to 103% of the sum of (x) the Series A Liquidation Amount plus
(y) an amount equal to all accrued and unpaid dividends thereon from the
last Series A Dividend Date to the Change of Control Payment Date (the
"Change of Control Redemption Price") in accordance with the procedures
set forth in this Section 3.3(b)(iv) (the "Change of Control Offer");
provided that the Series A Holders shall not be entitled to a Change of
Control Offer or the payment of the Change of Control Redemption Price
until, to the extent necessary, the requirements of Section 3.3(b)(iv)(E)
have been satisfied. The Corporation shall not consummate a Change of
Control until all the requirements of this Section 3.3(b)(iv), including
without limitation the requirements of Section 3.3(b)(iv)(E), have been
satisfied. The Corporation shall cause all holders of shares of its
capital stock or other voting securities that acquire such shares of
capital stock or other voting securities at a time when the Stockholders'
Agreement is in effect to enter into an agreement substantially
equivalent to Section 5.4 of the Stockholders' Agreement or otherwise
reasonably satisfactory to the Requisite Series A Holders not to effect a
Change of Control until all such requirements have been satisfied.
Notwithstanding anything in this Section 3.3(b)(iv) to the contrary, if
the Corporation delivers written notice to the Series A Holders that it
intends to consummate an optional redemption pursuant to Section
3.3(b)(v), the Corporation shall not be required to make a Change of
Control Offer pursuant to this Section 3.3(b)(iv) for any shares of
Series A Preferred Stock actually redeemed pursuant to such optional
redemption. No Change of Control Offer shall be considered a redemption
under Section 3.3(b)(v). Any Change of Control Offer made prior to the
consummation of the related Change of Control may be made contingent upon
such consummation.
(B) Within the period set forth in Section 3.3(b)(iv)
(A), the Corporation shall send by first-class mail, postage prepaid, to
each Series A Holder, at the address for such Series A Holder appearing
in the register maintained by or on behalf of the Corporation, a notice
(a "Change of Control Offer Notice") stating:
(1) that a Change of Control Offer is being made
pursuant to this Section 3.3(b)(iv) and that all shares of Series
A Preferred Stock validly tendered will be accepted for
redemption;
(2) the Change of Control Redemption Price and
the Change of Control Payment Date;
(3) that Series A Holders accepting the offer to
have their Series A Preferred Stock redeemed pursuant to a Change
of Control Offer shall surrender their certificates representing
Series A Preferred Stock to the Corporation at the address
specified in the Change of Control Offer
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Notice prior to the close of business on the business day
immediately preceding the Change of Control Payment Date;
(4) that Series A Holders shall be entitled to
withdraw their acceptance of the Change in Control Offer if the
Corporation receives, not later than the close of business on the
third business day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the
Series A Holder, the number of shares of Series A Preferred Stock
delivered for redemption, and a statement that such Series A
Holder is withdrawing his, her or its election to have such Series
A Preferred Stock redeemed;
(5) that, on and after the Change of Control
Payment Date (unless the Corporation defaults in the payment of
the Change of Control Redemption Price for any shares of Series A
Preferred Stock validly tendered pursuant to the Change of Control
Offer), to the extent permitted by applicable law, (x) dividends
shall cease to accrue with respect to such shares, (y) all other
rights with respect to such shares, except the right to receive
the Change of Control Redemption Price, shall cease and terminate,
and (z) such shares shall no longer be deemed to be outstanding as
of the Change of Control Payment Date;
(6) that Series A Holders whose shares of Series
A Preferred Stock are being redeemed only in part will be issued
new certificates representing the number of shares of Series A
Preferred Stock equal to the unredeemed portion of the
certificates surrendered; and
(7) any other procedures that a Series A Holder
must follow to accept a Change of Control Offer or effect
withdrawal of such acceptance.
(C) The Corporation will comply with any securities laws
and regulations to the extent such laws and regulations are applicable to
the redemption of the Series A Preferred Stock in connection with a
Change of Control Offer. Without limiting the foregoing, in the event
that a Change of Control occurs and the Series A Holders exercise their
right to require the Corporation to redeem Series A Preferred Stock
pursuant to this Section 3.3(b)(iv), if such redemption constitutes a
"tender offer" for purposes of Rule 14e-1 under the Exchange Act at that
time, the Corporation will comply with the requirements of Rule 14e-1 as
then in effect with respect to such redemption.
(D) On the Change of Control Payment Date, the
Corporation shall, to the extent lawful, (i) accept for redemption the
number of shares of Series A Preferred Stock validly tendered pursuant to
the Change of Control Offer and (ii) promptly mail to each Series A
Holder of shares so accepted the Change of Control Redemption Price
therefor and execute and issue a new Series A
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Preferred Stock certificate representing the number of shares of Series A
Preferred Stock equal to any unredeemed shares of Series A Preferred
Stock represented by a certificate so surrendered. On and after the
Change of Control Payment Date (unless the Corporation defaults in the
payment of the Change of Control Redemption Price for any shares of
Series A Preferred Stock validly tendered pursuant to the Change of
Control Offer), to the extent permitted by applicable law (x) dividends
shall cease to accrue with respect to such shares, (y) all other rights
with respect to such shares, except for the right to receive payment of
the Change of Control Redemption Price, shall cease and terminate, and
(z) such shares shall no longer be deemed to be outstanding as of the
Change of Control Payment Date.
(E) If the provisions of any agreement or instrument
governing any Indebtedness of the Corporation would prohibit the
Corporation from making a Change of Control Offer or paying the Change of
Control Redemption Price (including any limitations on dividends or
distributions), or if immediately after consummating the Change of
Control Offer or giving effect to the payment of the Change of Control
Redemption Price, a default or event of default under any such agreement
or instrument would be caused thereby, then, prior to the mailing of the
Change of Control Offer Notice to Series A Holders pursuant to Section
3.3(b)(iv)(B), the Corporation shall, to the extent required to permit
the redemption of Series A Preferred Stock pursuant to this Section
3.3(b)(iv), (i) obtain the consent of the requisite holders of such
Indebtedness to permit the consummation of the Change of Control Offer or
(ii) refinance all such Indebtedness outstanding with the proceeds of
other Indebtedness or equity securities that permit the consummation of
the Change of Control Offer.
(F) (i) If the Corporation has issued any outstanding
Preferred Stock (other than the Series A Preferred Stock), and the
Corporation is required to make a redemption or repurchase offer or to
make a distribution with respect to such other Preferred Stock in the
event of a Change of Control, the Corporation shall not consummate any
such offer or distribution with respect to such other Preferred Stock
until such time as the Corporation shall have paid the Change of Control
Redemption Price in full to the Series A Holders that have validly
accepted the Change of Control Offer and shall otherwise have consummated
the Change of Control Offer made to such Series A Holders and (ii) the
Corporation shall not issue any such other Preferred Stock with change of
control provisions requiring the redemption or repurchase of such
Preferred Stock, or the making of distributions thereon, on a basis
senior to, or on parity with, the redemption of the Series A Preferred
Stock in the event of a Change of Control.
(G) The Corporation will not be required to make a
Change of Control Offer upon a Change of Control if a third party makes
such Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements of this Section 3.3(b)(iv); provided,
however, that, if the Change of
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Control shall be consummated, the Corporation shall be liable to the
Series A Holders for any default by such third party to pay the Change of
Control Offer Price and otherwise consummate the Change of Control Offer.
In the absence of the consummation of a Change of Control Offer by a
third party pursuant to this Section 3.3(b)(iv)(G), nothing in this
Section 3.3(b)(iv)(G) shall relieve or be deemed to relieve the
Corporation from its obligations to consummate a Change of Control Offer
pursuant to the provisions of this Section 3.3(b)(iv).
(v) Redemption at Option of the Corporation.
(A) The Corporation shall have the right but not the
obligation, at its sole option, to redeem, out of funds legally available
therefor, all or any portion of the shares of Series A Preferred Stock
then outstanding, at an amount per share equal to the applicable Optional
Redemption Price set forth below:
(1) from the Original Issuance Date to, but not
including, the third anniversary of the Original Issuance Date,
the Optional Redemption Price shall be an amount in cash equal to
the higher of (A) the Make Whole Redemption Price and (B) 115% of
the sum of (x) the Series A Liquidation Amount determined as of
the Optional Redemption Date plus (y) an amount equal to all
accrued and unpaid dividends on a share of Series A Preferred
Stock from the Series A Dividend Date immediately preceding the
Optional Redemption Date to, but not including, the Optional
Redemption Date;
(2) on or after the third anniversary of the
Original Issuance Date to, but not including, the fourth
anniversary of the Original Issuance Date, the Optional Redemption
Price shall be an amount in cash equal to 107% of the sum of (x)
the Series A Liquidation Amount determined as of the Optional
Redemption Date plus (y) an amount equal to all accrued and unpaid
dividends on a share of Series A Preferred Stock from the Series A
Dividend Date immediately preceding the Optional Redemption Date
to, but not including, the Optional Redemption Date;
(3) on or after the fourth anniversary of the
Original Issuance Date to, but not including, the fifth
anniversary of the Original Issuance Date, the Optional Redemption
Price shall be an amount equal to 103% of the sum of (x) the
Series A Liquidation Amount determined as of the Optional
Redemption Date plus (y) an amount in cash equal to all accrued
and unpaid dividends on a share of Series A Preferred Stock from
the Series A Dividend Date immediately preceding the Optional
Redemption Date to, but not including, the Optional Redemption
Date; and
(4) on or after the fifth anniversary of the
Original Issuance Date, the Optional Redemption Price shall be an
amount equal to 100% of
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the sum of (x) the Series A Liquidation Amount determined as of
the Optional Redemption Date plus (y) an amount in cash equal to
all accrued and unpaid dividends on a share of Series A Preferred
Stock from the Series A Dividend Date immediately preceding the
Optional Redemption Date to but not including the Optional
Redemption Date.
(B) If the Corporation redeems less than all of the
outstanding shares of Series A Preferred Stock pursuant to this Section
3.3(b)(v), the Corporation shall redeem shares of Series A Preferred
Stock from the Series A Holders out of funds legally available therefor
ratably (or as close thereto as possible in order to permit the
redemption of whole shares) based on the number of shares of Series A
Preferred Stock that each Series A Holder holds.
(C) On and after any Optional Redemption Date (unless
default shall be made by the Corporation in the payment of the Optional
Redemption Price payable on such date, in which event such rights shall
be exercisable until such default is cured), to the extent permitted by
applicable law (x) dividends shall cease to accrue with respect to the
shares of Series A Preferred Stock to be redeemed, (y) all other rights
with respect to such shares, except the right to receive the Optional
Redemption Price, shall cease and terminate, and (z) such shares shall no
longer be deemed to be outstanding, whether or not the certificates
representing such shares shall have been received by the Corporation.
(D) Any communication or notice relating to redemption
delivered pursuant to this Section 3.3(b)(v) shall be sent by first-class
certified mail, return receipt requested, postage prepaid, to the Series
A Holders, at their respective addresses as the same shall appear on the
books of the Corporation, or to the Corporation at the address of its
principal or registered office, as the case may be.
(E) At any time on or after any Optional Redemption
Date, the Series A Holders of shares of Series A Preferred Stock to be
redeemed in accordance with this Section 3.3(b)(v) shall be entitled to
receive the Optional Redemption Price in cash, by certified or official
bank check or wire transfer, upon actual delivery to the Corporation or
its agent of the certificates representing the shares to be redeemed.
(vi) Voting Rights.
(A) The Series A Holders, except as otherwise required
under Utah law or as set forth in this Section 3.3(b)(vi), shall not be
entitled or permitted to vote on any matter required or permitted to be
voted upon by the stockholders of the Corporation.
(B) The Corporation shall not, without first obtaining
the affirmative written consent or approval of the Requisite Series A
Holders:
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(1) in any manner authorize, create, designate, issue or
sell any class or series of capital stock of the Corporation (including
any shares of treasury stock) or rights, options, warrants or other
securities convertible into or exercisable or exchangeable for capital
stock or any debt security which by its terms is convertible into or
exchangeable for any equity security or any security that is a
combination of debt and equity, which, in each case, as to the payment of
dividends, distribution of assets or redemptions, including, without
limitation, distributions to be made upon a Liquidation, rank senior to,
or on a parity with, the Series A Preferred Stock (it being understood
that the Corporation shall be entitled to incur Indebtedness and issue
warrants to acquire Common Stock in connection with any such incurrence
of Indebtedness); or
(2) increase the number of shares of Series A Preferred
Stock that the Corporation is authorized to issue; or
(3) in any manner alter or change the terms,
designations, powers, preferences or relative, participating, optional or
other special rights, or the qualifications, limitations or restrictions,
of the Series A Preferred Stock in any manner adverse to the Series A
Holders; or
(4) reclassify the shares of any class or series of
capital stock of the Corporation into shares of any class or series of
capital stock ranking, as to payment of dividends, distributions of
assets or redemptions, including, without limitation, distributions to be
made upon a Liquidation, on a basis that is senior to, or on parity with,
such Series A Preferred Stock; or
(5) amend, alter or repeal any of the provisions of (A)
these Amended and Restated Articles (B) the Bylaws of the Corporation (as
amended or restated), if such amendment, alteration or repeal would have
a material adverse effect on the rights, preferences or privileges of the
Series A Holders; provided, however that the affirmative written consent
or approval of the Series A Holders holding not less than 90% of the then
outstanding shares of Series A Preferred Stock shall be required for any
amendment, alteration or repeal of these Amended and Restated Articles
that would (i) reduce the amount of Series A Preferred Stock whose
Holders must consent to an amendment, alteration or repeal, (ii) reduce
the Series A Dividend Rate, (iii) reduce the Series A Liquidation Amount,
(iv) extend the Mandatory Redemption Date, (v) reduce any Optional
Redemption Price or change the time when any Optional Redemption Price
would be payable, (vi) amend, in a manner adverse to the Series A
Holders, the definition of the term "Change of Control," eliminate the
requirement that the Company (subject to the limitations set forth in
Section 3.3(b)(iv)(E)) make a Change
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of Control Offer, reduce the Change of Control Redemption Price or extend
by more than 90 days the Change of Control Payment Date or (vii) make any
payment on the Series A Preferred Stock payable in money other than that
stated in these Amended and Restated Articles.
(vii) Exchange.
(A) Requirements. On any business day the Corporation may elect
to exchange all, but (except as provided in clause (B) of Section
3.3(b)(vii)(B)(4)) not less than all, of the then outstanding shares of Series A
Preferred Stock for Exchange Notes (the "Exchange"); provided, however, that the
Exchange may be made only if on the Exchange Date, (i) the Exchange would be
permitted under restrictions contained in agreements and instruments governing
Indebtedness; (ii) there shall be legally available funds sufficient therefor;
(iii) immediately after giving effect to the Exchange, no default or event of
default under the Exchange Indenture would be caused thereby; and (iv) the
Exchange Indenture has been qualified under the Trust Indenture Act, if such
qualification is required at the time of the Exchange. In the Exchange, the
Corporation shall issue $1.00 principal amount of Exchange Notes in exchange for
each $1.00 of Original Cost of the shares of Series A Preferred Stock then
outstanding and $1.00 principal amount of Exchange Notes in exchange for each
$1.00 of accrued and unpaid dividends from the Original Issuance Date on each
such share of Series A Preferred Stock; provided, however, that the Corporation
shall have the right, at its option, to pay any such accrued and unpaid
dividends on all shares of Series A Preferred Stock in cash in lieu of issuing
an Exchange Note for such accrued and unpaid dividends. Exchange Notes shall be
issued in principal amounts of $1,000 and integral multiples thereof to the
extent possible. To the extent necessary, Exchange Notes shall be issued in
principal amounts less than $1,000; provided, however, that the Corporation
shall have the right, at its option, to pay cash in an amount equal to the
principal amount of that portion of any Exchange Note that would otherwise not
be an integral multiple of $1,000 in lieu of delivering an Exchange Note in a
denomination other than an integral multiple of $1,000.
(B) Procedure for Exchange.
(1) Not less than ten (10) days and not more than sixty
(60) days prior to the date fixed for the Exchange, written notice (the
"Exchange Notice") shall be mailed by the Corporation by first-class
mail, postage prepaid, to each Series A Holder of record on the Series A
Dividend Date immediately preceding such date at such Series A Holder's
address as the same appears on the stock register maintained by the
Corporation (or any transfer agent); provided, however, that neither any
failure to give such notice nor any deficiency therein shall affect the
validity of the procedure for the exchange of shares of Series A
Preferred Stock for Exchange Notes. The Exchange Notice shall state:
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(a) the Exchange Date;
(b) that the Series A Holder is to surrender
to the Corporation, in the manner and at the
place or places designated, his, her or its
certificate(s) representing all his, her or
its shares of Series A Preferred Stock to be
exchanged;
(c) that dividends on the shares of Series A
Preferred Stock to be exchanged shall cease
to accrue on the Exchange Date whether or not
certificates for shares of Series A Preferred
Stock are surrendered for exchange on the
Exchange Date unless the Corporation shall
default in the delivery of the Exchange
Notes; and
(d) that interest on the Exchange Notes shall
accrue from the Exchange Date whether or not
certificates for shares of Series A Preferred
Stock are surrendered for exchange on the
Exchange Date.
(2) On or before the Exchange Date, each Series A Holder shall
surrender the certificates representing his, her or its shares of Series
A Preferred Stock, in the manner and at the place designated in the
Exchange Notice. The Corporation shall cause the Exchange Indenture and
the Exchange Notes to be executed on the Exchange Date and, upon
surrender in accordance with the Exchange Notice of the certificates for
the shares of Series A Preferred Stock so exchanged, duly endorsed (or
otherwise in proper form for transfer, as determined by the Corporation),
such shares shall be exchanged by the Corporation for Exchange Notes in
accordance with Section 3.3(b)(vii)(A). The Corporation shall pay
interest on the Exchange Notes at the rate and on the dates specified
therein from the Exchange Date.
(3) If the Exchange Notice has been mailed as aforesaid, and if
before the Exchange Date specified in the Exchange Notice all Exchange
Notes necessary for such exchange shall have been duly executed by the
Corporation and delivered to the trustee under the Exchange Indenture
with irrevocable instructions to authenticate the Exchange Notes
necessary for the Exchange, then, to the extent permitted by applicable
law, the rights of the Series A Holders as holders of shares of Series A
Preferred Stock shall cease (except the right to receive
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Exchange Notes, and, if the Corporation so elects, the right to receive
an amount in cash equal to the amount of accrued and unpaid dividends on
such Series A Preferred Stock from the Original Issuance Date through the
Exchange Date and, if the Corporation so elects, the right to receive
cash in lieu of any Exchange Note not an integral multiple of $1,000). To
the extent permitted by applicable law, the Person or Persons entitled to
receive the Exchange Notes issuable upon the Exchange shall be treated
for all purposes as the registered holder or holders of such Exchange
Notes as of the Exchange Date.
(4) No Exchange in Certain Cases. Notwithstanding the foregoing
provisions of this Section 3.3(b)(vii), (A) the Corporation shall not be
entitled or required to exchange shares of Series A Preferred Stock for
Exchange Notes if the Exchange, or any term or provision of the Exchange
Indenture or the Exchange Notes, or the performance of the Corporation's
obligations under the Exchange Indenture or the Exchange Notes, would
violate applicable law or any agreement or instrument then binding on the
Corporation, including agreements and instruments governing Indebtedness,
or if, at the time of the Exchange, the Corporation is insolvent or it
would be rendered insolvent by the Exchange and (B) no Series A Holder
shall be obligated to exchange the shares of Series A Preferred Stock
held by such Series A Holder in the Exchange, unless such Series A Holder
has consented in writing to the Exchange.
(viii) Events of Non-Compliance.
(A) Subject to Section 3.3(b)(viii)(B), each of the following
shall constitute non-compliance hereunder (each, an "Event of Non-Compliance"):
(1) the Corporation fails to pay, in cash, on any
Series A Dividend Date that is the last day of a Series A
Dividend Period that commenced on or after the fifth
anniversary of the Original Issuance Date, all accrued
dividends since the previous Series A Dividend Date
(regardless of whether such dividends are prohibited by
restrictions contained in any agreement or instrument
governing Indebtedness, whether such dividends have been
declared by the Board or whether the Corporation has
legally available funds for the payment of such dividends);
(2) the Corporation shall fail to comply with the
provisions of Section 3.3(b)(i)(D) or of Section 7.4 of the
Purchase Agreement;
(3) the Corporation shall fail to comply with any
other covenant contained in the Purchase Agreement or these
Amended and Restated Articles and such failure continues
for forty-five (45) days after
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notice thereof has been delivered to the Corporation by any
Series A Holder;
(4) the Corporation or any Significant Subsidiary
shall (A) voluntarily commence any proceeding, or file any
petition seeking relief, under Title 11 of the United
States Code or any other federal, state or foreign
bankruptcy, insolvency or similar law, (B) consent to the
institution of, or fail to controvert in a timely manner,
any such proceeding or the filing of any such petition, (C)
apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for
any such Person or for any substantial part of its property
or assets, (D) file an answer admitting the material
allegations of a petition filed against it in any such
proceeding, (E) make a general assignment for the benefit
of creditors, (F) fail generally to pay its debts as they
become due or (G) take any formal corporate or stockholder
action in furtherance of any of the foregoing;
(5) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (A) relief in respect of the
Corporation or any Significant Subsidiary, or of any
substantial part of its property or assets, under Title 11
of the United States Code or any other federal, state or
foreign bankruptcy, insolvency or similar law, (B) the
appointment of a receiver, trustee, custodian, sequestrator
or similar official for any such Person or for any
substantial part of its property or (C) the winding-up or
liquidation of any such Person, and such proceeding or
petition shall continue unstayed and in effect for a period
of sixty (60) consecutive days; or
(6) the Corporation fails to redeem all the
shares of the Series A Preferred Stock on or prior to the
Mandatory Redemption Date.
(B) Upon the occurrence and during the continuation of
an Event of Non-Compliance, the Series A Dividend Rate shall
increase automatically from 14% per annum to 16% per annum, but no
Series A Holder shall have, as a result of such Event of
Non-Compliance, any right to require the redemption of the Series
A Preferred Stock prior to the Mandatory Redemption Date. The
foregoing increase in the Series A Dividend Rate and the right to
specific performance of obligations (other than obligations
requiring cash payments prior to the Mandatory Redemption Date)
shall be the exclusive remedies for the Events of Noncompliance
set forth in Sections 3.3(b)(viii)(A)(1), (2) and (3).
(ix) Reissuance of Series A Preferred Stock. Shares of Series A
Preferred Stock that have been issued and reacquired in any manner,
including without limitation shares purchased, redeemed or exchanged,
shall (upon compliance with any applicable provisions of the laws of the
State of Utah) have the status of authorized and unissued
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shares of Preferred Stock undesignated as to series and may be
redesignated and reissued as part of any series of Preferred Stock;
provided, however, that any issuance of such shares of Preferred Stock
must be in compliance with the terms hereof.
(c) Other Preferred Stock. The Corporation is authorized to
issue shares of one or more additional series of Preferred Stock. The Board of
Directors of the Corporation, without shareholder action, may amend these Third
Amended and Restated Articles of Incorporation to establish additional terms of
such other series of Preferred Stock pursuant to and in accordance with Section
16-10a-602 of the URBCA. All amendments to these Third Amended and Restated
Articles of Incorporation pursuant to this Section 3.3(c) shall be made subject
to and in accordance with the terms of this Article III.
(d) Payment. All issued shares of the Preferred Stock shall be
fully paid and nonassessable.
3.4 DEFINITIONS.
All references herein to a Section shall refer to the Section hereof,
unless otherwise specified. As used herein, the following terms shall have the
following meanings:
"Board" means the Board of Directors of the Corporation.
"Change of Control" means the occurrence of any of the following events:
(a) prior to the first public offering of common stock of the
Corporation, the Permitted Holders cease to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of a majority in the aggregate of the total voting power of the
Voting Stock of the Corporation, whether as a result of issuance of securities
of the Corporation, any merger, consolidation, liquidation or dissolution of the
Corporation, any direct or indirect transfer of securities by any Permitted
Holder or otherwise (for purposes of this clause (a) and clause (b) below, the
Permitted Holders shall be deemed to beneficially own any Voting Stock of an
entity (the "specified entity") held by any other entity (the "parent entity")
so long as the Permitted Holders beneficially own (as so defined), directly or
indirectly, in the aggregate a majority of the voting power of the Voting Stock
of the parent entity);
(b) (i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in clause (a) above, except that for purposes of
this clause (b) a person (including a Permitted Holder) shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately, only after the passage
of time, upon the happening of any event or otherwise), directly or indirectly,
of more than 50% of the total voting power of the Voting Stock of the
Corporation and (ii) the Permitted Holders "beneficially own" (as defined in
clause (a) above), directly or indirectly, in the aggregate a lesser percentage
of the total voting power of the Voting Stock of the Corporation than such other
person and do not
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have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Corporation
(for the purposes of this clause (b), such other person shall be deemed to
beneficially own any Voting Stock of a specified entity held by a parent entity,
if such other person is the beneficial owner (as defined in this clause (b)),
directly or indirectly, of more than 50% of the voting power of the Voting Stock
of such parent entity and the Permitted Holders "beneficially own" (as defined
in clause (a) above), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of such parent entity and do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of such parent
entity);
(c) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Corporation
(together with any new directors (i) selected in accordance with the
Stockholders' Agreement so long as such agreement is in effect or otherwise
nominated by the Permitted Holders or (ii) whose election by the Board of
Directors of the Corporation or whose nomination for election by the
stockholders of the Corporation was approved by a vote of at least a majority of
the members of the Board of Directors of the Corporation, then still in office,
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved by the Board of Directors or
in accordance with the Stockholders' Agreement or otherwise by the Permitted
Holders) cease for any reason to constitute a majority of the Board of Directors
of the Corporation then in office;
(d) the adoption of a plan relating to the liquidation or dissolution
of the Corporation; or
(e) the merger or consolidation of the Corporation with or into
another Person or the merger of another Person with or into the Corporation, or
the sale of all or substantially all the assets of the Corporation to another
Person (other than a Person that is controlled by the Permitted Holders), and,
in the case of any such merger or consolidation, the securities of the
Corporation that are outstanding immediately prior to such transaction and which
represent 100% of the aggregate voting power of the Voting Stock of the
Corporation are changed into or exchanged for cash, securities or property,
unless pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of the
surviving Person or transferee that represent immediately after such
transaction, at least a majority of the aggregate voting power of the Voting
Stock of the surviving Person or transferee.
"Change of Control Offer" has the meaning set forth in Section
3.3(b)(iv)(A).
"Change of Control Offer Notice" has the meaning set forth in Section
3.3(b)(iv)(B).
"Change of Control Payment Date" means the redemption date in respect of
a Change of Control Offer pursuant to Section 5, which date shall be (a) if any
Indebtedness that requires the Issuer to make an offer to purchase upon the
occurrence of a change of control or similar event is outstanding (except to the
extent the requisite holders of such Indebtedness have waived the right to such
offer), the first business day following the completion of such offer in respect
of such Indebtedness and (b) if no such Indebtedness is outstanding or if the
requisite holders of such
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Indebtedness have waived the right to such offer, a business day on or prior to
the date of the consummation of the Change of Control.
"Change of Control Redemption Price" shall have the meaning set forth in
Section 3.3(b)(iv)(A).
"Commission" means the Securities and Exchange Commission or any other
Governmental Authority at the time administering the Securities Act
"Common Stock" means the Common Stock, no par value, of the Corporation.
"Exchange" has the meaning set forth in Section 3.3(b)(vii)(A).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor Federal statute then in force, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in effect from
time to time.
"Exchange Date" means the date, if any, on which the shares of Series A
Preferred Stock are exchanged by the Corporation for Exchange Notes.
"Exchange Notes" mean senior subordinated notes (i) carrying an annual
interest rate of 14% and (ii) otherwise having terms and provisions
substantially the same as the New Notes.
"Exchange Notice" has the meaning set forth in Section 3.3(b)(vii)(B).
"Exchange Indenture" means an indenture, to be entered into by the
Corporation at the time of the Exchange, governing the Exchange Notes and
substantially the same as the New Notes Indenture (except with respect to the
interest rate).
"Indebtedness" means:
(a) indebtedness of the Corporation for borrowed money;
(b) obligations of the Corporation evidenced by bonds,
debentures, notes or other similar instruments;
(c) all obligations of the Corporation in respect of letters of
credit or other similar instruments (including reimbursement obligations with
respect thereto);
(d) all obligations of the Corporation to pay the deferred and
unpaid purchase price of property or services (except trade payables and other
accrued liabilities arising in the ordinary course of business), which purchase
price is due more than six months after the date of placing such property in
service or taking delivery and title thereto or the completion of such services;
and
(e) all capitalized lease obligations.
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"Junior Security" means any share or other unit of any class or
series of equity securities of the Corporation now existing or hereinafter
created, including, without limitation, the Common Stock and any other class or
series of Preferred Stock but not including the Series A Preferred Stock or any
class or series of equity securities of the Corporation created in accordance
with these Amended and Restated Articles and ranking pari passu with or senior
to the Series A Preferred Stock with respect to dividend rights and rights on
Liquidation.
"Liquidation" means any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, other than any
dissolution, liquidation or winding up in connection with any mere
reincorporation of the Corporation in another jurisdiction. The merger or
consolidation of the Corporation into or with, or the consummation by the
Corporation of a compulsory share exchange under Part 11 of the URBCA with, any
other corporation or other entity or the merger or consolidation of any other
corporation or other entity into or with the Corporation shall not be deemed a
Liquidation within the meaning of this definition.
"Make Whole Redemption Price" means the present value of an amount
equal to the Optional Redemption Price that would apply on the third anniversary
of the Original Issuance Date (assuming that all dividends from the date of
calculation of the Make Whole Redemption Price were to accumulate through the
Series A Dividend Date immediately preceding such third anniversary and
dividends would accrue and be unpaid thereafter), discounted from such third
anniversary to the Optional Redemption Date at a discount rate equal to (i) the
Treasury Rate plus (ii) one hundred (100) basis points.
"Mandatory Redemption Date" means the first to occur of: (i) June
1, 2011 or (ii) the one year anniversary of the final maturity date of the New
Notes.
"Mandatory Redemption Price" has the meaning set forth in Section
3.3(b)(iii).
"New Notes" means the 13% Senior Subordinated Notes due 2010
issued under the New Notes Indenture.
"New Notes Indenture" means the Indenture dated on or about May
31, 2000, among the Corporation, as Issuer, the Guarantors party thereto and The
Bank of New York, as Trustee.
"Optional Redemption Date" means a date on which shares of Series
A Preferred Stock are to be redeemed pursuant to Section 3.3(b)(v).
"Optional Redemption Price" has the meaning set forth in Section
3.3(b)(v).
"Original Cost" means $1,000 per share of Series A Preferred
Stock.
"Original Issuance Date" means the date of original issuance of
the first share of Series A Preferred Stock.
"Permitted Holders" means each of (i) Chase Capital Partners and
its Affiliates, (ii) Chase Domestic Investments, L.L.C. and its Affiliates,
(iii) The Christena Karen H. Durham Trust, (iv)
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each of Richard P. Durham, Jack E. Knott, Scott K. Sorensen and Ronald G.
Moffitt and their Related Parties and (v) any Person acting in the capacity of
an underwriter in connection with a public or private offering of the
Corporation's capital stock.
"Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability company, a corporation, an association, a joint stock corporation, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Purchase Agreement" means the Securities Purchase Agreement dated
on or about May 31, 2000, among the Corporation and the Purchasers named therein
providing for, among other things, the issuance of shares of Series A Preferred
Stock.
"Related Parties" means with respect to a Person (a) that is a
natural person (1) any spouse, parent or lineal descendant of such Person or (2)
the estate of such Person during any period in which such estate holds capital
stock of the Corporation for the benefit of any person referred to in clause
(a)(1) and (b) any trust, corporation, partnership, limited liability company or
other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially owning an interest of more than 50% of which consist of such Person
and/or such other Persons referred to in the immediately preceding clause (a).
"Requisite Series A Holders" means, as of any date of
determination, the Series A Holders holding not less than sixty percent (60%) of
the then outstanding shares of Series A Preferred Stock.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Series A Dividend Date" shall mean each March 31, June 30,
September 30 and December 31.
"Series A Dividend Period" shall mean the period commencing on the
day after any Series A Dividend Date and ending on and including the next Series
A Dividend Date; provided, that for any share of Series A Preferred Stock issued
on a date other than a Series A Dividend Date, the first Series A Dividend
Period for such share shall commence on the date of issuance of such share.
"Series A Dividend Rate" means 14% per annum (calculated on the
basis of a year of 360 days consisting of 12 30-day months); provided, however
that the Series A Dividend Rate shall be increased to 16% from time to time to
the extent provided in Section 3.3(b)(viii).
"Series A Holders" means, at any time of determination, the
holders of record of the outstanding shares of Series A Preferred Stock.
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"Series A Liquidation Amount" means, as to each share of Series A
Preferred Stock, as of any date of determination, the Original Cost (pro rated
for fractional shares of Series A Preferred Stock), plus all accrued and unpaid
dividends added to the Series A Liquidation Amount of such share in accordance
with Section 3.3(b)(i)(A).
"Series A Preferred Stock" shall have the meaning set forth in
Section 3.3(b).
"Series A Record Date" shall have the meaning set forth in Section
3.3(b)(i)(C).
"Significant Subsidiary" has the meaning given to such term in
Section 1.02(w) of Regulation S-X, as in effect from time to time, under the
Securities Act and the Exchange Act.
"Stockholders' Agreement" means the Stockholders' Agreement dated
on or about May 31, 2000, among the Corporation and the stockholders and other
securityholders of the Corporation party thereto.
"Treasury Rate" means the rate borne by direct obligations of the
United States maturing on the third anniversary of the Original Issuance Date
or, if there are not such obligations, the rate determined by linear
interpolation between the rates borne by the two direct obligations of the
United States maturing closest to, but straddling, the third anniversary of the
Original Issuance Date, in each case as published by the Board of Governors of
the Federal Reserve System.
"Voting Stock" of a Person means all classes of capital stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
ARTICLE IV
OFFICER AND DIRECTOR LIABILITY
(a) Except as otherwise required by Utah law, the Corporation
shall indemnify and advance expenses to its directors and officers and to any
person who is or was serving at the Corporation's request as a director or
officer of another domestic or foreign corporation (and their respective estates
or personal representatives) to the fullest extent as from time to time
permitted by Utah law.
(b) The personal liability of the directors and officers of the
Corporation to the Corporation or its shareholders, or to any third person,
shall be eliminated or limited to the fullest extent as from time to time
permitted by Utah law.
(c) Any repeal or modification of this Article IV shall not
adversely affect any right or protection of any person existing at the time of
such repeal or modification.
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